Opinion
CLAIM NO. D013040, D612809, F213328 F304703
ORDER FILED MAY 10, 2011
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appears Pro Se.
Respondents No. 1 represented by the HONORABLE SUSAN FOWLER, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE DAVID SIMMONS, Attorney at Law, Little Rock, Arkansas.
Respondent No. 3 represented by the HONORABLE CHRISTY L. KING, Attorney at Law, Little Rock, Arkansas.
ORDER
Respondent No. 1 has filed a motion to strike. The Full Commission denies the motion.
A pre-hearing order was filed on May 5, 2010. The claimant contended, among other things, that he sustained injuries on May 23, 2002 and October 24, 2002. A hearing was held on October 29, 2010. At that time, the claimant attempted to introduce into the record a report from Dr. Reza Shahim dated September 20, 2010. Respondent No. 1 objected to introduction of the report, and an administrative law judge allowed the claimant to proffer the exhibit. In an opinion filed January 26, 2011, an administrative law judge found that the claimant failed to prove he sustained compensable injuries in 2002.
The claimant filed a timely notice of appeal. The claimant submitted a letter brief, filed with the Commission on March 21, 2011. The claimant enclosed with his brief a copy of his deposition taken May 28, 2010; a report from Dr. Butchaiah Garlapati dated August 18, 2010; a note from the medical records department of Neurological Surgery Associates, P.A. dated March 14, 2011; a report from Dr. Luis Garcia dated December 8, 2003; a Request for Medical Records to Georgia-Pacific dated August 14, 2009; and correspondence from Peter O. Thomas, Jr., P.A. dated September 8, 2009. The Full Commission notes that the September 8, 2009 letter from Peter O. Thomas, Jr. is already in the record before the Full Commission on appeal. We also note that counsel for Respondent No. 2 cross-examined the claimant at hearing with regard to testimony in the claimant's deposition.
Respondent No. 1 does not contend that the exhibits attached by the claimant are inadmissible in accordance with Ark. Code Ann. § 11-9-705(c) (Repl. 2002). Instead, the movant argues that the exhibits attached by the claimant are "factual issues not developed" at the hearing pursuant to Commission Rule 25(b). The Full Commission does not agree that the exhibits attached by the claimant amount to factual issues not developed at the October 29, 2010 hearing. Moreover, the Commission is not bound by technical or statutory rules of evidence but is directed to conduct the hearing in a manner as will best ascertain the rights of the parties. Coleman v. Pro Transp., Inc., 97 Ark. App. 338, 249 S.W.3d 149 (2007). The Commission should be more liberal with admission of evidence rather than more stringent. Bryant v. Staffmark, Inc., 76 Ark. App. 64, 61 S.W.3d 856 (2001).
The Full Commission therefore denies Respondent No. 1's motion to strike. We direct the Clerk of the Commission to place this matter on our submission docket. The Full Commission assures all of the parties that we will adjudicate this claim based on a de novo review of the entire record and in accordance with relevant Arkansas law.
IT IS SO ORDERED.
___________________________________ A. WATSON BELL, Chairman
___________________________________ PHILIP A. HOOD, Commissioner
Commissioner McKinney dissents.
DISSENTING OPINION
I respectfully dissent from the majority's order denying respondent no. 1's Motion to Strike. In my opinion, the respondent's motion should be granted.
On March 21, 2011, the claimant filed a Response Letter to the Full Commission wherein he attached medical records and other assorted documents as set forth in the majority's opinion. The respondents objected to the inclusion of these documents in the record.
First and foremost, the claimant failed to introduce these documents, except for the letter from his attorney withdrawing, into the record at the hearing. The majority has denied the respondent's motion to strike based upon the fact that the respondent's argued Commission Rule 25(b). The respondent's argued that pursuant to Rule 25(b) the claimant was arguing factual issues on appeal that were not developed at the hearing. While technically this argument does not apply to the evidence, it is apparent that the claimant failed to comply with the provisions Ark. Code Ann. 11-9-705. Therefore, the respondent's Motion to Strike should be granted.
I agree that the Workers' Compensation Commission has broad discretion with reference to the admission of evidence, and its decision will not be reversed absent a showing of abuse of discretion. W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996); Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987);Southwest Pipe Supply v. Hoover, 13 Ark. App. 144, 680 S.W.2d 723 (1984); Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). I also agree that the Commission is given a great deal of latitude in evidentiary matters; specifically, Ark. Code Ann. § 11 9 705(a) (Repl. 2002) states that the Commission "shall not be bound by technical or statutory rules of evidence or by technical or formal rules of procedure. . . ." Additionally, the Commission is directed to "conduct the hearing, in a manner as will best ascertain the rights of the parties." Ark. Code Ann. § 11 9 705(a); Bryant v. Staffmark, Inc., 76 Ark. App. 64, 61 S.W.3d 856 (2001); Clark, supra.
However, with regard to additional evidence, Ark. Code Ann. § 11-9-705(c)(1)(A) (Repl. 2002) 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 the claimant was diligent in presenting the evidence to the Commission. Hargis Transport v. Chesser, 87 Ark. App. 301, 19 S.W.3d 309 (2004); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982); Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960).
Generally, the admissibility of rebuttal evidence and the exclusion of testimony offered on rebuttal lies within the discretion of the Administrative Law Judge. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Wilkins v. El Dorado Wesson R.R., 282 Ark. 236, 668 S.W.2d 6 (1984);Dinger v. Keith Watercare, Inc., Full Commission Opinion, Filed May 11, 2000 (Claim No. E713795). Moreover, one who offers evidence has the burden of proving its admissibility. Benson v. Shuler Drilling Co., 316 Ark. 101, 875 S.W.2d 552 (1994).
However, in Bryant, supra, the Court of Appeals, in reversing a prior decision by the Commission, stated:
In our view, it is clear that the Commission should be more liberal with the admission of evidence, rather than more stringent.
In Bryant, the Commission affirmed the decision of the Administrative Law Judge disallowing rebuttal witness testimony, although the rebuttal witness was present for cross-examination and, according to the Court, no prejudice would have resulted from the witness's testimony. Upon reversing the Commission, the Court concluded that the Administrative Law Judge's seven-day notice requirement for all rebuttal witnesses, and his refusal to even consider the possibility of allowing rebuttal testimony amounted to an abuse of discretion. Finally, the Court concluded that the Administrative Law Judge's "erroneous evidentiary ruling" was not harmless error.Bryant, supra.
The evidence is clear that the claimant failed to introduce this evidence at the hearing. Therefore, the claimant should not be allowed to introduce this evidence on appeal. Accordingly, I would grant the respondent's Motion to Strike. Therefore, for all the reasons set forth herein, I must dissent from the majority's order.
___________________________________ KAREN H. MCKINNEY, COMMISSIONER