Lead Opinion

Subsequent to the hearing before Deputy Commissioner Young, the parties took the deposition of Dr. Forney Hutchinson on 17 July 1997. Following this, plaintiff moved for an extension of time in order to produce additional medical evidence contending that Dr. Hutchinson's testimony was inconsistent with his own notes and records. When this Motion was denied, plaintiff moved for a Voluntary Dismissal Without Prejudice, which also was denied.

After reviewing this matter, the Full Commission has determined that plaintiff's Motion for a Voluntary Dismissal Without Prejudice should have been granted and that in the interest of justice, he should have had the opportunity to present additional medical evidence.

Based on the above and after careful consideration, the Full Commission hereby VACATES the prior Opinion and Award and ORDERS that this matter is REMANDED to a Deputy Commissioner for the taking of additional medical evidence. Upon submission of such evidence, the Deputy Commissioner shall then render a decision based upon the entire record of evidence.

Defendants shall pay the costs.

S/ ______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/ __________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING IN SEPARATE OPINION:

S/ __________________ RENÉE C. RIGGSBEE COMMISSIONER

Concurrence Opinion

I concur in the result because I believe that plaintiff should have been allowed to take a voluntary dismissal pursuant to Industrial Commission Rule 613. Although defendant will incur some additional expense, defendant has denied the claim and, therefore, will not be paying benefits in the interim. The Deputy Commissioner's Order denying plaintiff's motion for an extension of time to take additional medical evidence was, however, appropriate. The procedural result is without significant distinction.

S/ _______________ RENÉE C. RIGGSBEE COMMISSIONER