GILBERT v. LAND O’ FROST, 1996 AWCC 239

CLAIM NO. E115249

PAULA M. GILBERT, EMPLOYEE, CLAIMANT v. LAND O’ FROST, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 7, 1996

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE LANA P. DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE JAMES M. GARY, Attorney at Law, Little Rock, Arkansas.

[1] ORDER
[2] This matter comes before the Full Commission on the claimant’s motion to submit additional evidence. The evidence which the claimant seeks to submit consists of a report of a MRI of the claimant’s lumbar spine performed at the White County Medical Center on August 1, 1996. After due consideration of the claimant’s motion, the lack of response from the respondents thereto, and all other matters properly before the Commission, we find that the claimant’s motion should be, and hereby is, granted.

[3] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[4] Commissioner Holcomb dissents.

[5] DISSENTING OPINION
[6] I would deny claimant’s motion to introduce the MRI report of the claimant’s lumbar spine performed by the White County Medical Center on August 1, 1996. Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982) set forth the prerequisites for remand by the Full Commission on proffer to present newly discovered evidence: (1) The newly discovered evidence must be relevant; (2) it must not be cumulative; (3) it must change the result; and (4) the party seeking to introduce the evidence must be diligent.

[7] Claimant has contended all along that she is entitled to the diagnostic studies “recommended” by Dr. Moore and his independent medical evaluation. Simply because the claimant has now obtained an MRI on her own does not mean that the MRI results are admissible into evidence at this late date. The issue is whether the claimant is entitled to have the diagnostic studies performed, not what the diagnostic studies reveal. Whether the studies are relevant can be determined based upon the evidence presented to the Administrative Law Judge at the hearing held on March 14, 1995. Therefore, it is my opinion that the results of the MRI taken on August 1, 1996 are not relevant and will not change our decision. I would deny claimant’s motion. [8] ALICE L. HOLCOMB, Commissioner