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Brees v. Gulley Enterprises5/5/2000
under subdivision (a)(6) presents either a jurisdictional or fundamental issue, and her argument is not considered.
Brees argues that Dr. Metz should be heard as to whether he is of the opinion that Brees suffered an injury on August 31 that materially aggravated her pre-existing condition and caused the need for surgery. She does not argue that Dr. Metz has newly discovered evidence to provide. We review denials of motions under Rule 59(a)(7) for abuse of discretion. Shaw v. Shaw, 544 P.2d 1004, 1006 (Wyo. 1976). Evidence available at the time of the hearing or which can be inferred was available cannot be the basis for the grant of a new hearing as newly discovered. Id. (citing Barbour v. Barbour, 518 P.2d 12, 15 (Wyo. 1974)). Brees has not made any showing that she exercised due diligence in attempting to secure this information, or that it is such newly discovered evidence as contemplated by the rule, and we find no abuse of discretion. Id.
The order of the district court upholding the denial of benefits and the denial for reconsideration is affirmed.
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