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Tidwell v. Walker Construction12/16/2004
Opinion Vote: AFFIRMED.
Shrum and Barney, JJ., concur
Opinion:
Gene Tidwell (claimant) appeals a final award of the Labor and Industrial Relations Commission (the commission) denying compensation. This court affirms.
Chronology
This appeal has followed a procedurally tortured path. The following is a chronology of relevant events occurring prior to reaching this court.
August 17, 2001 Claim for Compensation filed
October 10, 2002 Hearing before Administrative Law Judge (ALJ)
November 4, 2002 Final Award Denying Compensation entered by ALJ
November 25, 2002 Claimant filed his Application for Review by the commission
February 7, 2003 Claimant filed pleading denominated "Motion to Consider Additional Evidence and to Suspend Briefing Schedule"
March 10, 2003 Pleading opposing claimant's request of February 7 filed by C.A. Walker Construction Co. (employer) and Frank Gates U.S.A. (insurer)
March 14, 2003 The commission entered order stating claimant's request was granted and remanded case to ALJ "to hold a hearing to allow [claimant] to introduce additional evidence . . . and for the employer to respond or object as appropriate"
April 8, 2003 Hearing before ALJ to receive evidence as directed commission's March 14, 2003 order
May 15, 2003 Parties file joint motion requesting the commission to remand case for ALJ to enter award upon consideration of all the evidence
May 30, 2003 Motion to remand to ALJ to render new award denied
February 10, 2004 Final Award Denying Compensation entered by the commission
Facts
Claimant filed a claim for workers' compensation based on injuries he alleged were suffered July 2, 2001. Claimant asserted he was injured while using a chain saw to remove a tree trunk while working for employer; that he felt a pull in his low back while working with the chain saw that worsened as he continued working. Following a hearing, the ALJ found claimant did not sustain an accident resulting in injuries arising out of and in the course of his employment on the date alleged. The ALJ entered an award denying compensation. Claimant sought review of the ALJ award by the commission.
The commission entered the final award denying compensation that is the subject of this appeal. The commission's order includes the findings:
Subsequent to the trial of this matter and after the award of the was issued, the employee filed a motion to present additional evidence. The Commission remanded the matter to the Division of Workers' Compensation (Division) for an evidentiary hearing to introduce this evidence for consideration by the Commission.
The transcript of that remand hearing was received by the Commission, and after careful review, the Commission finds that the evidence is not newly discovered and was available to the employee prior to the trial and further that even if admitted into evidence the proposed evidence lacks the probative value necessary to cause a change in the underlying decision to deny the employee benefits. Therefore the Commission denies the employee's motion to introduce new evidence.
The commission found the award of the ALJ was supported by competent and substantial evidence and was in accordance with The Workers' Compensation Law. The commission affirmed the ALJ's award of no compensation and incorporated the award and decision of the ALJ in the commission's award by incorporation by reference.
The findings adopted by the commission include:
The claima
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