POOLE v. ROHR INDUSTRIES, 1996 AWCC 104

CLAIM NO. E402418

GRACIE POOLE, EMPLOYEE, CLAIMANT v. ROHR INDUSTRIES, EMPLOYER, RESPONDENT and RELIANCE NATIONAL INSURANCE, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 24, 1996

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

Claimant appears pro se.

Respondents represented by the HONORABLE WILLIAM M. GRIFFIN, III, Attorney at Law, Little Rock, Arkansas.

[1] ORDER
[2] This claim comes before the Full Commission on the claimant’s motion to submit additional evidence and her request for an extension of time to file her brief. After careful consideration of the claimant’s motion and request, the respondents’ response thereto, and all other matters properly before the Commission, we find that the claimant’s motion to submit additional evidence must be denied. We also find that the claimant’s request for an extension of time to file her brief should be granted.

[3] A hearing was held before the administrative law judge on November 20, 1995, and the administrative law judge filed an opinion and order on February 9, 1996. In that opinion and order, the administrative law judge found that the claimant failed to prove that she is entitled to permanent partial impairment benefits in excess of the 5% permanent impairment rating to each hand already accepted by the respondents. In addition, the administrative law judge found that the claimant failed to prove that her osteoarthritis is a compensable injury. On March 8, 1996, the Commission received the claimant’s notice of appeal, and by letter dated April 1, 1996, the Commission notified the claimant that her brief was due April 19, 1996. On April 22, 1996, the Commission received the claimant’s request for an extension for briefing time, and her motion to submit additional evidence. The claimant indicated the following basis in support of her request and motion:

I would like for the due date to be extended from 19 April to 15 June, 1996. The reason for the extension request is to allow time for completing and obtaining results from an examination and tests currently underway by a rheumatologist. With approval to submit new evidence, the results obtained will be submitted along with my brief for review by the Commission. This testing is being done at my expense for both treatment of the injuries and to obtain an objective report of the current condition of my hands and wrists.

[4] The respondents filed a timely objection to the claimant’s request to submit additional evidence, but indicated that they have no objection to a short extension to allow the claimant extra time to file her brief.

[5] Ark. Code Ann. § 11-9-705 (c)(1) (1987) provides that all evidence must be submitted at the initial hearing on the claim. In order to submit new evidence, the moving party 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 to the Commission.Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960); see also,Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).

[6] In the present claim, we find that the claimant failed to prove that she was diligent in obtaining and presenting the additional evidence. In that regard, there is nothing indicating that anything prevented the claimant from obtaining and presenting evidence of a rheumatologist’s examination and testing at the hearing held on November 20, 1995. Therefore, we find that the claimant’s motion to submit additional evidence must be denied. However, we find that the claimant’s request for an extension of time until June 15, 1996 to file her brief should be, and hereby is, granted. The Clerk of the Commission is hereby directed and ordered to set a new briefing schedule consistent with our order and to notify the parties of the new briefing schedule.

[7] IT IS SO ORDERED.

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

[8] Commissioner Humphrey concurs.