JOHNSON v. BONDS FERTILIZER, INC., 2005 AWCC 26

CLAIM NO. E509478

SCIPIO JOHNSON, EMPLOYEE, CLAIMANT v. BONDS FERTILIZER, INC., EMPLOYER, RESPONDENT NO. 1, AGRI GROUP-COMP, CARRIER, RESPONDENT NO. 1, BONDS BROTHERS, INC., EMPLOYER, RESPONDENT NO. 2, CNA INSURANCE COMPANY, CARRIER, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
ORDER FILED FEBRUARY 9, 2005

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

Claimant represented by HONORABLE TIMOTHY S. PARKER, Attorney at Law, Eureka Springs, Arkansas.

Respondent No. 1 represented by HONORABLE J. MICHAEL DENNIS, Attorney at Law, Pine Bluff, Arkansas.

Respondent No. 2 represented by HONORABLE D. KEITH FORTNER, Attorney at Law, Little Rock, Arkansas.

ORDER
This matter is presently before the Commission on claimant’s remand from the Court of Appeals to Settle the Record. Claimant filed a Motion with the Court of Appeals claiming that the clerk of the Commission failed to include in the record all items he designated in his Notice of Appeal. Specifically, the claimant contends that the briefing schedule, and the briefs and reply brief filed by the parties before the Full Commission were left out of the record.

Pursuant to A.C.A. § 11-9-704(b)(6)(A) the full commission is authorized to review the evidence and hear the parties on appeal. Accordingly, we conduct a de novo review of the record. The parties’s brief are not evidence, only arguments. Such records have not ever been considered a part of the record. Moreover, A.C.A. § 11-9-711 (b)(1)(A) specifically states:

The appeal to the court may be taken by filing in the office of the commission, within thirty (30) days from the date of the receipt of the order or award of the commission, a notice of appeal, whereupon the commission under its certificate shall send to the court all pertinent documents and papers, together with a transcript of evidence and the findings and orders, which shall become the record of the cause.

This provision does not permit a party to pick and choose which documents to “designates” for the record. This is a decision for the Commission to make. The clerk of the Commission complied with the requirements of A.C.A. § 11-9-711(b)(1)(A) and provided the claimant with a complete and accurate copy of the transcript for this claim. The briefing schedule, and briefs of the parties were not included in the transcript as these are outside the record, they are not evidence and they do not fall within pertinent documents, papers, transcript, findings or orders. Accordingly, we find that the record is settled as it currently exists.

IT IS SO ORDERED.

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

Commissioner Turner dissents.