Opinion
CLAIM NO. E312677
OPINION FILED JANUARY 9, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILLIP M. HENDRY, Attorney at Law, Little Rock, Arkansas.
Respondent appears pro se.
ORDER
This matter comes before the Full Commission on the motion of the respondent to submit additional evidence. The claimant has objected to the respondent's motion. After giving due consideration to the respondent's motion, the claimant's response, and all other matters properly before the Commission, we find that the respondent's motion must be denied.
On September 27, 1995, the administrative law judge filed an opinion and order finding the claimant sustained a compensable injury while employed by the respondent. On October 27, 1995, the Commission received the respondent's notice of appeal. Attached to the respondent's notice of appeal were a group of documents which she requested the Commission to consider on appeal. These documents included the following: affidavit of Sid Gerber, medical records for Sid Gerber, a handwritten note allegedly signed by Marvin Hartwick, Notice of Cross Appeal and Petition of Complaint by Sid Gerber, Notice of Cross Appeal and Complaint by David Lovelady, Notice for a Cross Appeal by Marvin Hartwick, Sr., Motion in Opposition to Order and Opinion with Affidavit of Magoon Leasing Co., Notice of Hearing before the Arkansas Workers' Compensation Commission dated October 24, 1994, calendar pages for May 3, 1991 and May 6, 1991, affidavit of David Lovelady, Notice of Acceptance as a S-Corporation dated June 29, 1992, a survey allegedly performed by Shaw Surveying Co., Renewal Application for Professional Bail Bond Company License for All Arkansas Bail Bonds, Inc. dated November 30, 1992, a Bill of Sale for five shares of common stock of All Arkansas Bail Bonds dated March 29, 1992, Acceptance of Appointment of Sam Hawks as director, president, and secretary of All Arkansas Bail Bonds, Inc. dated December 31, 1992.
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 moving party 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, Haywood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).
In the present claim we find that the respondent failed to prove that she was diligent in presenting the additional evidence to the Commission. The respondent was aware, or should have been aware, of the issues to be addressed at the hearing. We note that the first hearing in this claim was held on October 11, 1994, at which time the administrative law judge and the parties identified the issues to be addressed and the required procedures for providing advance notice to the opposing party of evidence to be presented at the hearing. The administrative law judge then scheduled a second hearing for January 10, 1995, to allow the respondent additional time to prepare for the hearing. Clearly the claimant should have been given advance notice of the proffered evidence, and the evidence should have been presented at the hearing before the administrative law judge on January 10, 1995. The respondent has not offered any explanation indicating that the additional evidence was unavailable at the time of the hearing on January 10, 1995, and we therefore, find that the respondent was not diligent in presenting the evidence. Thus, we find that the respondent's motion must be denied.
The respondent's notice of appeal also requests that other individuals be permitted to intervene in this appeal in order to file "counter claims" against the claimant. In that regard, the Commission has received documents entitled "Notice of Cross Appeal" signed by Mr. Sid Gerber and by Mr. David Lovelady. Each document alleges that the claimant gave false testimony before the administrative law judge which has caused injury and damage to Mr. Gerber and Mr. Lovelady. Each Notice of Cross Appeal seeks compensatory and punitive damages for injuries sustained as a result of the claimant's allegedly false testimony.
Intervention is a proceeding by which a person, not originally a party to an action, is permitted to and does become a party to the pending proceeding for the protection of some right or interest alleged by him to be affected by the proceeding. Wood Construction Co. v. Ford, 258 Ark. 47, 522 S.W.2d 408 (1975); Travelers Ins. Co. v. McClusky, 252 Ark. 1045, 483 S.W.2d 179 (1972). After carefully considering the Notices of Cross Appeal filed by Mr. Gerber and Mr. Lovelady, we find that these individuals should not be permitted to intervene and participate in this case before the Commission. In that regard, neither individual alleges that he is the claimant's employer, or a medical provider or insurance carrier with an interest in the outcome of the claimant's workers' compensation proceeding. To the contrary, both Mr. Gerber and Mr. Lovelady seek to intervene in order to pursue an action against the claimant for defamation based on the claimant's hearing testimony. Thus, neither individual has any legal or financial interest in the outcome of the proceeding.
Furthermore, there must exist a statutory basis for the Arkansas Workers' Compensation Commission to exercise jurisdiction in each claim filed before the Commission.International Paper Co. v. Tidwell, 250 Ark. 623, 466 S.W.2d 488 (1971); McKeag v. Hunt Transportation, Inc., 36 Ark. App. 46, 818 S.W.2d 581 (1991); Patton v. Brown Root, Inc., 31 Ark. App. 141, 789 S.W.2d 745 (1990). However, the Arkansas Workers' Compensation Law does not provide the Commission with authority to entertain third party defamation actions against a workers' compensation claimant. Accordingly, we find that Sid Gerber and David Lovelady should not be permitted to intervene in the present claim, and their requests to intervene and file a claim against the claimant are denied.
We note that a document entitled "Notice for a Petition for a Cross Appeal" by Marvin Hartwick has also been received by the Commission. However, this document does not allege that Mr. Hartwick has any right or interest affected by this proceeding, or that he seeks to intervene in this proceeding. Accordingly, we find that Marvin Hartwick should not be permitted to intervene in the present claim.
In summary, the motion of the respondent to submit additional evidence is denied. In addition, the requests of Sid Gerber and David Lovelady to intervene in this claim are denied.
IT IS SO ORDERED.