POPE v. PHARMACY CORPORATION OF AMERICA, 2000 AWCC 86

CLAIM NO. E712014

DAVID POPE, EMPLOYEE, CLAIMANT v. PHARMACY CORPORATION OF AMERICA, EMPLOYER, RESPONDENT and CONSTITUTION STATE SERVICE CO., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED MARCH 17, 2000

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

Claimant represented by EVERETT O. MARTINDALE, Attorney at Law, Little Rock, Arkansas.

Respondent represented by J. RODNEY MILLS, Attorney at Law, Fort Smith, Arkansas.

ORDER
This matter is presently before the Commission on claimant’s “Motion for Reconsideration and to Remand this Case to the Administrative Law Judge for Rehearing.” After careful consideration of claimant’s motion, the response of respondent, and all other matters properly before the Commission, we find no reason to disturb our February 2, 2000, decision. Essentially, claimant is asking the Commission to consider a new piece of evidence.

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, 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 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).

In the present matter, we find that claimant failed to establish that this evidence would change the result of the case where the Commission found that claimant failed to prove that he suffered severe pain which caused him to stop work immediately. This is an essential element of a claim for a hernia injury. Thus even if claimant could prove that Dr. Gibbs was aware that claimant had a pre-existing hernia, the claim would still fail.

Furthermore, once a decision has been rendered against a party, that party cannot come back and attempt to prove its case on appeal with additional evidence, particularly where, as here, the party was not diligent in procuring or presenting the additional evidence. Claimant’s documentary evidence should have been prepared seven days prior to the hearing, not two weeks after the Commission’s opinion reviewing the Administrative Law Judge’s findings. Compare Rosie Brown v. Archibald, Inc., Full Workers’ Compensation Commission, February 26, 1998 (WCC No. E417735). Clearly, claimants are not entitled to “two bites at the apple.”See, Id.; see, also, Lyn Sheridan v. Kallsnick, Inc., Full Workers’ Compensation Commission, May 22, 1996 (W.C.C. No. E318630). Because claimant has failed to establish that the new evidence would change the outcome of his claim, it would obviously not be proper to reconsider our prior decision based upon Dr. Gibbs’ statement which was not prepared for almost two weeks after the rendering of the Commission’s opinion. This evidence should have been prepared and offered before the Administrative Law Judge, and in any event cannot change the outcome. Therefore, we find that claimant’s motion must be, and hereby is, denied.

IT IS SO ORDERED.

_______________________________
ELDON F. COFFMAN, Chairman

_______________________________ MIKE WILSON, Commissioner

Commissioner Humphrey dissents.

DISSENTING OPINION
I must respectfully dissent from the majority decision to deny claimant’s motion. In my opinion the proffered evidence would change the result of the case and therefore should be admitted. The new evidence resolves apparent inconsistencies in the record and therefore eliminates the basis to conclude that misrepresentations cast doubt on the claimant’s credibility. Since we now know that the opinion rendered by Dr. Gibbs was based upon an accurate medical history we should grant claimant’s motion to reconsider.

Because this claim arose out of the aggravation of a pre-existing condition it is my opinion, as stated in our earlier opinion, that this case is not subject to our hernia statute. Therefore, claimant need not prove that he suffered severe pain which caused him to stop work immediately. Now that the record correctly reflects the basis on which the medical opinion regarding causation was rendered I would grant claimant’s motion.

_______________________________ PAT WEST HUMPHREY, Commissioner