McDANIEL v. FORT SMITH LUMBER CO., 1994 AWCC 199

CLAIM NO. E208696

KENNETH McDANIEL, EMPLOYEE, CLAIMANT v. FORT SMITH LUMBER CO., EMPLOYER, RESPONDENT, and INDIANA LUMBERMENS MUTUAL, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED DECEMBER 22, 1994

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

Claimant represented by ROBERT CLOAR, Attorney at Law, Fort Smith, Arkansas.

Respondent represented by WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.

[1] ORDER
[2] This matter comes on for review by the Full Commission on Respondent’s Motion to Expand the Record. After carefully considering respondent’s motion, claimant’s response thereto, and all matters properly before the Full Commission, we deny respondent’s motion.

[3] At the May 23, 1994 hearing, the primary issue was whether claimant is entitled to an award of wage loss disability over and above the 5% permanent anatomical impairment rating assessed. On September 27, 1994, an Administrative Law Judge entered an order determining that claimant failed to prove by a preponderance of the credible evidence that he is entitled to an award of wage loss disability. [4] On October 3, 1994, claimant filed a notice of appeal to the Full Commission. On November 16, 1994, respondent filed this motion, a motion to expand the record. Respondent contends that evidence discovered subsequent to the hearing is directly relevant and has significance in this case. However, the evidence respondent wishes to submit is not appropriate newly discovered evidence in which to reopen the record. Therefore, we deny respondent’s motion. [5] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[6] Commissioner Humphrey concurs.