TOWNES v. CONTINENTAL EXPRESS, 2002 AWCC 15

CLAIM NO. E812669

MELVIN D. TOWNES, EMPLOYEE, CLAIMANT v. CONTINENTAL EXPRESS, INC., EMPLOYER, RESPONDENT, GIBRALTER NATIONAL INSURANCE, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED JANUARY 17, 2002

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

Claimant represented pro se.

Respondent represented by HONORABLE JEREMY SWEARINGEN, Attorney at Law, Little Rock, Arkansas.

OPINION AND ORDER
This case comes on for review before the Commission on the pro se claimant’s motion to enter additional evidence. After consideration of the claimant’s motion, the respondent’s response thereto, and all other matters properly before the Commission, we find that the claimant’s motion should be denied.

Following a hearing held on August 8, 2001, the Administrative Law Judge found in part that the claimant was not entitled to an independent medical examination nor to temporary total disability, that additional medical treatment was not reasonable and necessary, and that any prolonging of the claimant’s need for treatment was due to an independent intervening cause, specifically, to a handcuffing incident which occurred on November 17, 1999.

At hearing the claimant submitted into evidence a packet of medical documents that included the following: (1) an occupational therapy evaluation dated 12/10/99 which reported primarily subjective findings of pain following active range of motion tests; (2) a 12/15/99 letter from Dr. Karen Johnston-Jones dismissing the claimant from her care due to “irresolvable personality conflicts”; and (3) a 4/21/99 letter from Dr. Eugene O’Brien which states that the claimant was seen for a second opinion on the referral of Dr. Johnston-Jones, reports primarily subjective findings of pain, diagnoses the claimant as having cubital tunnel syndrome, and states that surgery is indicated but risky.

The claimant now seeks to admit two additional documents, a letter dated 9/21/2000 from the clinical director at Family Life Counseling which states that the claimant is receiving treatment for depression that is exacerbated by constant pain, and an appointment confirmation notice for therapy at a psychiatry clinic.

Ark. Code Ann. § 11-9-705(c)(1) provides that all evidence must be submitted at the initial hearing on the claim. Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982), sets forth the prerequisites for the Full Commission to admit newly discovered evidence: (1) the newly discovered evidence must be relevant; (2) it must not be cumulative; (3) it must change the result; and (4) the party seeking to introduce the evidence must be diligent. The Commission has broad discretion with reference to the admission of evidence, and the Supreme Court will not reverse that decision absent a showing of abuse of that discretion. Clarkv. Peabody Testing Service, 265 Ark. 489 579 S.W.2d 360 (1979); W.W.C.Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996); Linthicumv. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987); SouthwestPipe and Supply v. Hoover, 13 Ark. App. 144, 680 S.W.2d 723 (1984).

The claimant’s additional evidence fails to meet the first, second and third Haygood prerequisites. First, the appointment confirmation notice contains no relevant information. Second, the letter from Ms. Hernandez is cumulative, as it’s relevant content states only that the claimant is in pain, and this fact was in evidence at the hearing. Third, the letter would not change the result. The Administrative Law Judge found that any prolonging of the claimant’s need for treatment was due to an independent intervening cause. This letter would not change that conclusion.

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. The claimant cannot meet all four prerequisites set forth byHaygood, supra, therefore his motion should be and hereby is denied.

IT IS SO ORDERED.

_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner

Commissioner Turner dissents.