ORDER
Presently before the Commission is claimant's motion to submit additional evidence. After consideration of the claimant's motion, counsel for respondent's objection thereto, and the employer's letter to his counsel to withdraw the objection, we find that the motion must be denied. The filings in this claim are unusual, to say the least. The claimant filed a motion to submit additional evidence but did not identify the evidence to submit. Counsel for respondent objected to the motion. However, the employer wrote his counsel instructing him to withdraw the objection, attached a copy of the claimant's additional evidence to that letter and provided the Commission with a carbon copy. It should be noted that the employer is a business owned by the claimant's parents. It is presumed that the evidence attached to the employer's letter is the evidence the claimant now seeks to introduce into the record on appeal. However, since the claimant did not identify the requested evidence he seeks to introduce, this is only a presumption. The claimant sustained an injury in 1999 that was accepted as compensable and all benefits were paid, until 2005 when additional medical treatment was denied. The claimant requested a hearing, and a prehearing telephone conference was held. During the conference the parties stipulated to the compensability of the claim but the respondents raised the Statute of Limitations defense. A hearing on the requested medical treatment and the Statute of Limitations defense was scheduled. Subsequent to the conference, respondents learned that another branch of the carrier had been paying the medical expenses and withdrew its Statute of Limitations defense. Approximately one month before the hearing the respondents withdrew their stipulation of compensability and contended that the claimant did not sustain a compensable injury which is supported by objective medical findings. A second prehearing was not conducted after the withdrawal of this stipulation. At the beginning of the hearing, the claimant stated that he did not understand what was going on. With regard to his injury and initial treatment, the claimant testified that his claim was not treated as a workers' compensation claim because the employer did not have coverage on him. After an apparent audit, it was determined that the claimant should have been covered and back premiums were paid. It was not until almost two years after the injury that the workers' compensation carrier began paying on his injury. In an opinion filed October 10, 2006, the Administrative Law Judge found that the claimant failed to prove the existence of a compensable injury by objective medical evidence and therefore denied the claim for additional medical benefits. Claimant filed an appeal from this finding. In Haygood v. Belcher , 5 Ark. App. 127, 633 S.W.2d 391 (1982) the Arkansas Court of Appeals set forth the prerequisites for remand by the Full Commission on proffer to present 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. After review of the motion, response, and letter presently before the Commission, we find that the presumed proffered evidence the claimant seeks to introduce on appeal fails to satisfy the requirements set forth in Haygood v. Belcher , supra. The claimant was not diligent in seeking to introduce this evidence which was clearly available to him prior to the hearing on compensability. Accordingly, we find that the claimant's motion must be and hereby is denied.
IT IS SO ORDERED.
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OLAN W. REEVES, Chairman
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KAREN H. McKINNEY, Commissioner
Commissioner Hood dissents.
DISSENTING OPINION
I respectfully dissent from the Majority's Order denying Claimant's Motion to Submit Additional Evidence. After my review of the Claimant's motion, counsel for Respondent's objection to the motion, and the respondent-employer's letter to his counsel to withdraw the objection, it is my opinion that the motion should be granted. I agree with the Majority that the filings in this claim are unusual. The Claimant filed for an extension and a Motion to Submit Additional Evidence on November 29, 2006. Claimant did not identify the evidence he wished to submit. Counsel for the respondents filed an objection to the admission of additional evidence based on Ark. Code Ann. § 11-9-705(c) on December 7, 2006. A letter from the respondent-employer was filed on December 14, 2006, instructing his counsel to withdraw the objection. Attached to the letter from the respondent-employer was a copy of the Claimant's additional evidence. The respondent-employer is owned by the Claimant's parents. Since the Claimant failed to attach the evidence he wished to introduce, it is presumed that the evidence attached to the respondent-employer's letter is the evidence Claimant wished to introduce into the record. The Claimant sustained an injury to his low back in November of 1999 that was accepted as compensable and all benefits were paid until 2005 when the respondents denied additional medical treatment. The Claimant requested a hearing on March 30, 2006. A pre-hearing telephone conference was held on June 28, 2006. The stipulations agreed to during the pre-hearing conference were as follows:
1.The Arkansas Workers' Compensation Commission
has jurisdiction if the within claim.
2. The employee-employer-carrier relationship
existed between the parties at all relevant
times.
3. The claimant sustained a compensable injury to
his back on November 23, 1999.
4. The claimant was earning sufficient wages to
entitle him to compensation at the weekly rates
of $250.00 for temporary total disability
benefits and $180.00 for permanent partial
disability benefits.
The issue to be litigated at the forthcoming hearing were as follows:
1. Statute of limitations.
2. Claimant's entitlement to additional medical
treatment.
A letter was sent on July 10, 2006 by counsel for the respondents stating that the statute of limitations was no longer a defense since prescriptions medications had been continuously paid by a separate unit of the respondent-carrier. Counsel for respondents also reserved the right to challenge the reasonable necessity of future medications. Respondents agreed to pay for medications and stated that if the Claimant agreed there would be no need for a hearing. On July 25, 2006, counsel for respondents sent a letter to the Administrative Law Judge with a copy to the Claimant taking the position that the Claimant had no objective medical findings that corroborate the injury from 1999 and controverting medical benefits including prescription medications from the date of the letter and that the hearing scheduled for September 13, 2006, would still be necessary. A second pre-hearing conference was not held after the withdrawal of the stipulation. At the beginning of the hearing on September 13, 2006, the Claimant stated that he did not understand respondents' position as to the compensability of his claim. The Claimant testified that his injury and initial treatment was not treated as a workers' compensation claim because the employer did not have coverage on him. After an apparent audit, it was determined that the Claimant should have been covered and back premiums were paid. It was not until almost two years after the injury that the workers' compensation carrier began paying on his injury. In an opinion filed October 10, 2006, the Administrative Law Judge found that the Claimant failed to prove the existence of a compensable injury by objective medical evidence and therefore denied the claim for additional medical benefits. Claimant filed an appeal from this finding. In Haygood v. Belcher ,
5 Ark. App. 127, 633 S.W.2d 391 (1982) the Arkansas Court of Appeals set forth the prerequisites for remand by the Full Commission on Proffer to present 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. Ark. Code Ann. § 11-9-705(c)(3) states:
A party failing to observe the requirements of
this subsection may not be allowed to introduce
medical reports or testimony of physicians at a
hearing, except in the discretion of the hearing
officer or the commission.
In my opinion, the presumed proffered evidence the Claimant seeks to introduce on appeal satisfies the requirements set forth in Haygood v. Belcher ,
supra. The presumed evidence is relevant to the claim, is not cumulative, and could change the result of the claim. In my opinion, Claimant was diligent in acquiring the presumed proffered evidence. The records were from as far back as 1999 and the Claimant stated that these records were archived and would take at least 30 days to receive from the doctors. Also, these presumed records are referenced in the medical reports submitted at the hearing. In my opinion, these record are necessary in order to make a fully informed decision in this claim. For the foregoing reasons, I respectfully dissent from the Majority's order denying Claimant's Motion to Submit Additional Evidence.
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PHILIP A. HOOD, Commissioner