GRUBER v. MAVERICK TRANSPORTATION, 2006 AWCC 114

CLAIM NO. F202021

HENRY GRUBER, JR., EMPLOYEE, CLAIMANT v. MAVERICK TRANSPORTATION, EMPLOYER, RESPONDENT NO. 1 LIBERTY MUTUAL INSURANCE CO., INSURANCE CARRIER, RESPONDENT NO. 1 DEATH PERMANENT TOTAL DISABILITY TRUST FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
ORDER FILED JULY 5, 2006

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

Claimant appears pro se.

Respondents No. 1 represented by the Honorable David C. Jones, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by the Honorable Judy Rudd, Attorney at Law, Little Rock, Arkansas.

ORDER
Presently before the Commission is claimant’s Motion to Submit New Evidence. After consideration of the claimant’s motion, the respondents’ responses thereto, and all other matters properly before the Commission we find that the claimant’s motion must be and hereby is denied.

A hearing before an Administrative Law Judge was held on August 18, 2005, to determine whether the claimant was entitled to wage loss benefits. The Administrative Law Judge issued an opinion on November 17, 2005, in which she found that claimant proved by a preponderance of the evidence that he was entitled to wage loss. The claimant was represented by counsel at this hearing. Claimant appealed through his attorney to the Full Commission. The Full Commission reversed this finding and held that claimant did not prove entitlement to any wage loss benefits.

Claimant filed a notice of appeal to the Court of Appeals and this Motion to Submit New Evidence. He also chose to proceed pro se. The claimant filed this motion with the Commission to submit `new’ evidence from the Veteran’s Administration.

The respondents filed objections to the motion.

Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982) sets forth the requirements for the introduction of 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. First it is noted that these records from the Veteran’s Administration dated June 23, 2003, concern the disability of the claimant. Moreover, the records predate the hearing in this case. They even predate the hearing held in 2004 regarding claims for continuing medical treatment and additional TTD.

Therefore, we are unable to find that these records are relevant to this claim, that they would change the results of this claim, or that the claimant was diligent in introducing these records into evidence.

Accordingly, after reviewing the evidence the claimant now seeks to introduce, we cannot find that the claimant has satisfied the requirements established by the Court of Appeals inHaygood v. Belcher, supra. Therefore, we find that the claimant’s motion must be and hereby is denied.

IT IS SO ORDERED.

_______________________________ OLAN W. REEVES, Chairman
_______________________________ KAREN H. McKINNEY, Commissioner

Commissioner Turner dissents.