HARRIS v. SOUTHERN TELEPHONE CONSTRUCTION CO., 2001 AWCC 160

CLAIM NO. E814677

GRATTON HARRIS, EMPLOYEE, CLAIMANT v. SOUTHERN TELEPHONE CONSTRUCTION COMPANY, INC, EMPLOYER, RESPONDENT, LEGION INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT.

Before the Arkansas Workers’ Compensation Commission
ORDER FILED JULY 19, 2001.

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

Claimant represented by the HONORABLE LAWRENCE W. FITTING, Attorney at Law, Fort Smith, Arkansas.

Respondents represented by the HONORABLE WAYNE HARRIS, Attorney at Law, Fort Smith, Arkansas.

ORDER
This matter comes before the Full Commission on claimant’s motion to remand to the Administrative Law Judge for consideration of new evidence filed on April 27, 2001 and on the claimant’s supplemental motion to remand for consideration of new evidence filed on June 18, 2001.

For the reasons discussed herein, we find that the claimant has established each of the requirements necessary to establish that the new evidence in the claimant’s initial motion to remand to the Administrative Law Judge should be made part of the record, and on that basis we grant the claimant’s motion to remand to the Administrative Law Judge for consideration of the new evidence contained in the claimant’s April 27, 2001 motion. However, we also find that the claimant’s supplemental motion to remand for consideration of new evidence presents cumulative evidence that the claimant was not diligent in presenting. Therefore, we find that the claimant has failed to establish that the Administrative Law Judge should consider on remand any new evidence presented by the claimant which is not attached to the claimant’s original motion.

The claimant filed a claim for additional benefits and received a hearing before an Administrative Law Judge in part seeking additional medical benefits in the form of a neurosurgical evaluation by Dr. Capocelli as per the recommendation of his physicians, Dr. Carrick and Swicegood. Relying in part on credibility determinations regarding the legitimacy of the claimant’s complaints and in part on a prior neurosurgical evaluation by Dr. Queeney, who had reviewed the results of a lumbar MRI and could not find a treatable abnormality, the Administrative Law Judge denied the claimant’s request for additional medical benefits in the form of a second neurosurgical evaluation by Dr. Capocelli. The Administrative Law Judge filed his opinion on October 24, 2000, and the claimant filed a timely appeal. Apparently at his own expense, the claimant in fact thereafter underwent a neurosurgical evaluation by Dr. Capocelli on approximately January 11, 2001. Dr. Capocelli ordered EMG testing and a lumbar myelogram/CT and concluded in a report dated April 24, 2001 that the diagnostic tests indicate evidence of nerve root compression, and that he feels the optimum treatment for the claimant will require surgery. In addition, in his January 11, 2001 report, Dr. Capocelli had opined that the claimant’s current problems are related to the claimant’s original injury sustained at work in 1998.

The claimant filed his first motion to remand to the Administrative Law Judge for consideration of the new evidence on April 27, 2001, within one week after the date of Dr. Capocelli’s April 24, 2001 report discussing the claimant’s diagnostic testing reviewed by Dr. Capocelli.

The claimant’s supplemental motion seeks to offer into evidence letters prepared by Dr. Swicegood and Dr. Capocelli in response to letters prepared by the claimant’s attorney on May 24, 2001 and May 16, 2001, respectively.

Ark. Code Ann. § 11-9-705(c)(1) provides that all evidence must be submitted at the initial hearing on the claim. In order to submit new evidence, the claimant must show that the new evidence is relevant; that it is not cumulative; that it would change the result of the case; and that the claimant was diligent in presenting the evidence to the Commission. Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).

There should be no serious doubt that the results of the more sophisticated myelogram/CT testing, and the medical opinions of Dr. Capocelli based on this new diagnostic testing, are relevant, not cumulative, and could change the result of the additional medical treatment issue which was presented to the Administrative Law Judge. This new evidence would bear not only on the legitimacy of the claimant’s ongoing complaints, which the Administrative Law Judge questioned based on Dr. Queeney’s prior neurosurgical evaluation, but also presents objective medical findings related to the nature and extent of the claimant’s previously undiagnosed nerve root impingement problem.

To the extent that it has been argued that the claimant was not diligent in procuring this evidence, the record does not support this argument for the following reasons. The Administrative Law Judge’s opinion clearly indicates that the claimant sought a Commission order to compel the respondents to pay for the requested medical evaluation by Dr. Capocelli, the Administrative Law Judge denied the claimant’s request, and the claimant thereafter sought on his own the same medical evaluation that the Administrative Law Judge refused to require the respondents to pay for. Since the point of the hearing was to request the respondents to pay for the medical evaluation, we fail to see how it can be argued that the claimant was not “diligent” in waiting until after the Administrative Law Judge rendered a decision on the claimant’s request prior to the claimant seeking an evaluation by Dr. Capocelli at his own expense. Thereafter, the claimant at his own expense obtained the medical evaluation that he requested, and in light of the diagnostic studies that Dr. Capocelli ordered, and the time required for Dr. Capocelli to later evaluate these studies and render a medical report, we cannot agree that the claimant was not “diligent” by the manner in which he procured the evidence at issue. The claimant was diligent in obtaining evidence of Dr. Capocelli’s evaluation, when the claimant (1) first sought the evaluation from the respondents who refused to authorize it, (2) then sought the evaluation from an Administrative Law Judge who refused to authorize it, (3) then took the only remaining course of action available which was to obtain the evaluation at his own expense and present the results to the Commission thereafter.

However, the claimant also attempts to submit into the record even more medical opinions in response to letters prepared by the claimant’s attorney after already filing one motion with the Full Commission to supplement the record. Although certainly relevant to the issues in this claim, we find that the May 25, 2001 letter of Dr. Capocelli and the June 5, 2001 letter of Dr. Swicegood are cumulative to Dr. Capocelli’s reports attached to the claimant’s first motion. We also find that the claimant was not diligent in procuring and submitting these reports which were elicited after the claimant filed his first motion with the Commission.

Therefore, for the foregoing reasons, we find that the claimant’s first motion is granted, and the claimant’s second motion is denied. This case is remanded to the Administrative Law Judge to provide the respondents an opportunity to present whatever additional evidence, if any, that the respondents deem appropriate for rebuttal. The Administrative Law Judge shall then make additional findings in light of the new evidence presented.

IT IS SO ORDERED.

______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner

Commissioner Wilson concurs in part and dissents in part.

I respectfully concur in part and dissent in part from the majority opinion. Specifically, I concur in the majority’s denial of the claimant’s Supplemental Motion to Remand for Consideration of New Evidence filed on June 18, 2001. However, I must dissent from the majority’s granting of the claimant’s Motion to Remand to the Administrative Law Judge for Consideration of New Evidence filed on April 27, 2001.

_______________________________ MIKE WILSON, Commissioner