WEBSTER v. HOFFINGER INDUSTRIES, 1994 AWCC 181

CLAIM NO. E104032

VIRGINIA WEBSTER, EMPLOYEE, CLAIMANT v. HOFFINGER INDUSTRIES, EMPLOYER, RESPONDENT NO. 1, and TRAVELERS INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT NO. 1, and SECOND INJURY FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
ORDER FILED DECEMBER 1, 1994

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

Claimant represented by the HONORABLE MIKE ETOCH, Attorney at Law, Helena, Arkansas.

Respondents No. 1 represented by the HONORABLE PHILLIP CUFFMAN, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by the HONORABLE TERRY PENCE, Attorney at Law, Little Rock, Arkansas.

[1] ORDER
[2] This matter comes before the Full Commission on the claimant’s motion for remand so that new evidence can be considered. Both respondents have objected to the claimant’s motion. After giving due consideration to the claimant’s motion, the responses of the respondents, and all other matters properly before the Commission, we find that the claimant’s motion must be denied.

[3] A hearing was held in this matter before an administrative law judge on April 21, 1994, and at that hearing, the claimant contended that she was permanently and totally disabled as a result of the combination of an admittedly compensable back injury with other conditions. On August 5, 1994, the administrative law judge filed an opinion and order finding that the claimant failed to prove by a preponderance of the evidence that she is entitled to permanent disability compensation in excess of the 5% impairment rating assigned to her back as a result of bulging discs at L4-5 and L5-S1. For her motion, the claimant contends that Dr. Richard Peek determined on August 26, 1994, after the administrative law judge’s decision was filed, that the claimant has ruptured discs at L4-5 and L5-S1. Consequently, the claimant asks that the claim be remanded for consideration of Dr. Peek’s report.

[4] 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 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 she was diligent in presenting the evidence to the Commission. 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 claim, we first note that the claimant did not submit a copy of the evidence which she seeks to submit with her motion, so we are unable to determine whether the evidence is relevant, whether it is cumulative, and whether it would change the result of the case. Furthermore, we find that the claimant was not diligent in seeking to present evidence pertaining to the nature and extent of her disability to the Commission.

[6] The claimant has also filed a motion seeking an extension of the time to submit her brief. All respondents have indicated that they have no objection to the extension of time. Therefore, we find that the claimant’s motion to extension of time should be, and hereby is granted.

[7] Accordingly, for the reasons discussed herein, we find that the claimant’s motion must be, and hereby is, denied. However, we find that the claimant’s motion for an extension of time to submit her brief should be, and hereby is, granted.

[8] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[9] Commissioner Humphrey concurs.