MILLIGAN v. WEST TREE SERVICE, 1996 AWCC 295

CLAIM NO. E107020

STEVEN RAY MILLIGAN, EMPLOYEE, CLAIMANT v. WEST TREE SERVICE, EMPLOYER, RESPONDENT and U.S. FIDELITY GUARANTY CO., INSURANCE CARRIER, RESPONDENT and RICHARD S. MUSE, INTERVENOR

Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 26, 1996

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

Claimant represented by the HONORABLE DAVID J. POTTER, Attorney at Law, Texarkana, Arkansas.

Respondents represented by the HONORABLE JAMES W. TILLEY and CAROL L. WORLEY, Attorneys at Law, Little Rock, Arkansas.

[1] ORDER
[2] This matter comes before the Full Commission on mandate from the Arkansas Court of Appeals to settle the record based on claimant’s motion for writ of certiorari to supplement the record with additional evidence. After giving careful consideration to the claimant’s motion, the respondents’ objection to the claimant’s motion, and all other matters properly before the Commission, we find that the claimant’s request to supplement the record currently before the Arkansas Court of Appeals must be denied.

[3] On April 2, 1996, the Full Commission affirmed the decision of the administrative law judge in this claim and adopted as its own the findings of fact and conclusions of law filed by the administrative law judge. The claimant’s attorney filed a notice of appeal to the Arkansas Court of Appeals with regard to that part of the Commission’s decision finding that the claimant continued in his healing period and was entitled to temporary total disability compensation from February 14, 1991 through January 21, 1992, and again from May 13, 1992 through November 13, 1992, but failed to prove by a preponderance of the evidence that he was entitled to temporary total disability compensation between January 21, 1992 and May 13, 1992, or for the period beginning after November 13, 1992. The respondents filed a notice of cross-appeal with regard to that part of the Commission’s decision finding that the claimant is entitled to a change of physician to Dr. Brent Keyser and Dr. Michael Brown of Houston, Texas. As a result of the claimant’s appeal and the respondent’s cross-appeal, a record was prepared by the Clerk of the Commission. The claimant subsequently filed a motion for writ of certiorari with the Arkansas Court of Appeals in order to supplement the record with documentary evidence of medical treatment that he has received since the hearing on this claim held on February 14, 1995. In his motion for writ of certiorari, the claimant asserted the following basis for submitting the additional medical documents:

The fact that the surgery has been performed may be of significance to the Court of Appeals. The continuing treatment of the medical condition of Steven Ray Milligan, and the impact of litigation injurious to the health of the appellant is relevant to the issues on appeal.

[4] Ark. Code Ann. § 11-9-705 (c) (1) (1987) provides that all evidence must be submitted at the initial hearing on a 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 he was diligent in presenting the evidence. Mason v.Lauck, 233 Ark. 591, 340 S.W.2d 575 (1980); see also,Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). [5] In the present case, we find that documentation of continuing medical treatment received by the claimant since the hearing held on February 14, 1995, is not relevant to the issues presented in this case. As indicated in the opinion and order filed by the administrative law judge, the respondents do not assert that the claimant is no longer in need of medical treatment. The change of physician issue instead addresses who should provide that treatment. Likewise, although the fact that the claimant underwent surgery in August of 1995 may indicate that he re-entered his healing period at that time, that surgery and associated medical care have no bearing on whether or not the claimant is entitled to additional temporary total disability compensation between January 21, 1992 and May 13, 1992, or on the issue of whether the claimant’s healing period for his second period of temporary disability ended on November 13, 1992. [6] Therefore, for the reasons discussed herein, we find that the claimant’s motion to supplement the record on file with the Arkansas Court of Appeals must be, and hereby is, denied. [7] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner

[8] Commissioner Humphrey dissents.