CLAIM NOS. E209211 D800654
FRANK QUINN, EMPLOYEE, CLAIMANT v. WEBB WHEEL PRODUCTS, SELF-INSURED EMPLOYER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
ORDER FILED MAY 9, 1994
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by MICHAEL MASHBURN, Attorney at Law, Fayetteville, Arkansas.
[1] ORDER
[2] This matter comes on for review by the Full Commission on Respondent’s Petition for Review and Notice of Appeal and Claimant’s Motion to Dismiss Appeal. After conducting a de novo review of the relevant matters, we deny claimant’s Motion to Dismiss Appeal. However, we grant Respondent’s Petition for Review and Notice of Appeal. Therefore, we remand this matter to the Administrative Law Judge so that additional evidence concerning claimant’s date of death can be admitted.
[3] A review of the evidence indicates that a hearing was held on January 3, 1994 in Springdale, Arkansas. The issue litigated was whether or not claimant is entitled to lump sum payment of the remaining permanent partial disability benefits in accordance with A.C.A. §
11-9-804. The Administrative Law Judge granted the claimant’s petition for lump sum payment but reduced the amount from 108 weeks to 60 weeks based upon the fact that claimant was dying from lung cancer and was not expected to live the entire 108 weeks. It is from this determination that respondent appealed. [4] One day after the appeal was filed, respondent learned that claimant had died on February 1, 1994. This is important evidence central to the primary issue of the hearing. The evidence is not cumulative and respondent could not have known or discovered when claimant would die prior to the hearing. Also, the evidence could materially alter the outcome of the hearing. Therefore, we remand this matter back to the Administrative Law Judge for reconsideration of claimant’s determination of lump sum award in light of the newly discovered evidence i.e, date of death. [5] We note that Claimant’s Motion to Dismiss Appeal is not technically a motion to dismiss appeal. It is an objection to the introduction of the newly discovered evidence or the remand. Based upon a review of the evidence, we deny claimant’s request. [6] Therefore, we grant Respondent’s Petition for Review and Notice of Appeal and remand this matter to the Administrative Law Judge so that additional evidence concerning claimant’s date of death can be admitted. We deny claimant’s Motion to Dismiss Appeal. [7] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[8] Commissioner Humphrey dissents.
[9] DISSENTING OPINION
[10] I must respectfully dissent from the order of the majority. Claimant has filed a motion to dismiss respondent’s appeal and respondent has filed a motion to submit additional evidence or remand to the Administrative Law Judge. The majority’s decision to remand this matter to the Administrative Law Judge effectively dismisses respondent’s appeal; therefore, claimant’s motion is moot.
[11] Respondent contended on appeal that based on the facts existing on the date of the hearing, an award for a lump sum payment should have never been made. Another issue would be whether the lump sum payment can be based on less than the amount of permanent partial disability benefits remaining to be paid. In my opinion, whether claimant has in fact died since the award was entered by the Administrative Law Judge is not relevant to the above issues. If the award had been accepted and paid by respondent, claimant’s subsequent death would simply be an unfortunate circumstance and would have no affect on the parties in relation to this workers’ compensation claim. [12] For the foregoing reasons, I dissent. I would deny respondent’s motion to remand this matter to the Administrative Law Judge. Additionally, if respondent’s motion had been denied, I would have likewise denied claimant’s motion to dismiss respondent’s appeal. [13] PAT WEST HUMPHREY, Commissioner