Opinion
CLAIM NO. E020924
ORDER FILED JULY 12, 1995
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondent represented by JOHN BEASLEY, Attorney at Law, Fort Smith, Arkansas.
ORDER
This matter comes on for review by the Full Commission on claimant's Objection to Review by the Full Commission.
Claimant contends that the Commission's de novo review of the findings of the Administrative Law Judge would deprive her of due process because such a review involves credibility determinations. Additionally, claimant contends that the statutorily mandated composition of this Commission deprives her of due process.
After consideration of claimant's motion, respondent's objection thereto, and all other matters properly before the Commission, we find that neither our de novo review of this claim nor the composition of this Commission deprives claimant of any due process rights. Therefore, we deny claimant's motion.
The due process provisions of the United States Constitution and the Arkansas Constitution require adequate procedural safeguards to protect against the mistaken or unjust deprivation of a protected property interest. Consequently, where the constitutionality of any procedure is challenged on due process grounds, the primary focus is on the fairness and accuracy of decisions resulting from that procedure. United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (Blackmun, J. concurring);Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Arkansas General Assembly has designed a scheme for resolving contested workers' compensation claims which assures fair and accurate results by vesting the ultimate power and authority to decide claims in a balanced Commission composed of members representing the divergent interests involved in the workers' compensation system as well as an undesignated member. Our de novo review of the record and the composition of this Commission are both essential components of this legislatively mandated scheme.
This Commission's statutorily mandated de novo review of the record, including our consideration of credibility issues, does not result in any denial of due process even though we do not normally personally hear and observe the live testimony of witnesses. In this regard, the United States Supreme Court and other courts considering this issue have found that due process does not require an authority ultimately responsible for making factual findings, such as this Commission, to personally hear and observe the live testimony of witnesses. See, Raddatz, supra; Federal Communications Commission v. Allentown Broadcasting Corp., 349 U.S. 358, 75 S.Ct. 855, ___ L.Ed. ___ (1955); Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); National Labor Relations Board v. Mackay Radio and Telegraph, 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938);Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936) (hereinafter Morgan I); Moore v. Dubois, 848 F.2d 1115 (10th Cir. 1988); Hameetman v. City of Chicago, 776 F.2d 636 (7th Cir. 1985); Guerrero v. New Jersey, 643 F.2d 148 (3 Cir. 1981); Bates v. Sponberg, 547 F.2d 325 (6th Cir. 1976); Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129 (2d Cir. 1967); Pollard v. Krispy Waffle #1, 304 S.E.2d 762 (N.C.App. 1983); Travelers Insurance Co. v. Buice, 124 Ga. App. 626, 185 S.W.2d 549 (1971); Eastham v. Whirlpool Corp., 524 N.E.2d 23 (Ind.App. 3 Dist. 1988); Goodyear Tire Rubber v. Pierce, 363 S.E.2d 433 (Va.App. 1987); see also Annotation, Administrative Decision by Officer Not Present When Evidence Taken 18, A.L.R.2d 606, § 3. Furthermore, the United States Supreme Court and other courts have found that the rejection of a hearing officer's credibility findings by an ultimate fact-finder who has not personally heard and observed the live testimony does not violate due process. Allentown Broadcasting Corp., supra; Universal Camera Corp., supra; Moore, supra; see also, Pollard, supra; Buice. In fact, these courts have found that due process does not even require an ultimate fact-finder to receive a report on credibility from the hearing officer who personally observed the testimony. Morgan, supra; Mackay Radio and Telegraph, supra: Utica Mutual Insurance Co., supra; National Labor Relations Board v. Stocker, 185 F.2d 451 (3rd Cir. 1950);Hameetman, supra;
In Raddatz, supra, the United States Supreme Court found that a district court judge's de novo determination of credibility findings does not violate due process even though the district court judge does not personally hear and observe the live testimony. Although Raddatz involved an evidentiary hearing on a motion to suppress in a criminal action, the Court analogized the issue to administrative agency cases and made the following statements:
Generally, the ultimate factfinder in administrative proceedings is a commission or board, and such trier has not heard the witnesses testify. [Citations omitted].
While the commission or board — or an administrator — may defer to the finding of a hearing officer, that is not compelled. [Citations omitted].
Notably, in reaching its decision, the Court recognized the importance of the interest involved by noting that the result of suppression motions often determined the outcome of the case.
The United States Supreme Court actually dispelled any contention that due process is violated where the ultimate decision-maker does not personally hear and observe the live testimony of witnesses over fifty years ago inMorgan, supra. In Morgan, the Secretary of the Agriculture entered an order based on the record of testimony taken before a hearing examiner, and it was contended that the Secretary's failure to personally hear the testimony violated due process. Although the Court concluded that a full hearing was a fundamental procedural requirement, the Court also concluded that the requirement for a hearing is satisfied if the decision-maker personally considers and evaluates testimony presented before a hearing officer. The Court did state that "[t]he one who decides must hear." However, the Court clarified this statement by expressly stating that it is permissible for the decision to be based solely on testimony taken before someone other than the ultimate decision-maker. According to the Court the requirement of a hearing only mandates that the ultimate decision-maker personally consider and appraise the evidence so gathered. Consequently, it is recognized that the Court used the term "hear" in the technical sense of requiring actual consideration and evaluation of the evidence by the authority ultimately responsible for making decisions. See, Allentown Broadcasting Corporation, supra; Raddatz, supra; Universal Camera Corp., supra; Utica Mutual Insurance Co. v. Vincent, supra; National Labor Relations Board v. Stocker Manufacturing Co.; see, also Annotation, Administrative Decision by Officer Not Present When Evidence Was Taken, 18 A.L.R.2d 606, § 3.
In Universal Camera, supra, and Allentown Broadcasting, supra, the United States Supreme Court found that a hearing officer's findings can be rejected by an administrative tribunal statutorily charged with the ultimate authority and duty to make factual findings, even though that authority does not hear the live testimony. Furthermore, in both cases, the Court rejected the contention that due process prevents rejection of a hearing officer's findings unless they were "clearly erroneous". In fact, in Allentown Broadcasting, the Court found that an ultimate factfinder may reject the credibility findings of a hearing officer even though it did not personally hear and observe the live testimony.
In Allentown Broadcasting Corporation, supra, hearings were initially held before a hearing officer who entered findings and a decision which were based, in part, on his observations of the witnesses' demeanor. However, without taking any additional evidence, the Federal Communications Commission rejected the hearing officer's findings and decision. On appeal, the Court of Appeals reversed the Commission, concluding that "the Examiner's findings based on demeanor of a witness are not to be overruled by a Board without a `very substantial preponderance in the testimony as recorded.'" However, the Supreme Court reversed the Court of Appeals, noting that the enabling legislation gave the Commission the ultimate authority to make decisions. With reference to the decision of the Court of Appeals, the Supreme Court made the following comments:
We think this attitude goes too far. It seems to adopt for examiners of administrative agencies the "clearly erroneous" rule . . . applicable to courts. In Universal Camera Corp. v. Labor Board, 340 U.S. 474, 492, 71 S.Ct. 456, 467, 95 L.Ed. 456, we said, as to the Labor Management Relations Act hearings:
"Section (10)(c) of the Labor Management Relations Act provides that `If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact * * *.' [Citations omitted]. The responsibility for decision thus placed on the Board is wholly inconsistent with the notion that it has power to reverse an examiner's findings only when they are `clearly erroneous.' Such a limitation would make so drastic a departure from prior administrative practice that explicitness would be required." [Emphasis added].
That comment is here applicable.
Just as the statutory provisions in Universal Camera and Allentown Broadcasting Corporation place the ultimate decision making responsibility on those administrative bodies, the Arkansas Workers' Compensation Law places the ultimate responsibility for resolving disputed workers' compensation claims on this Commission. Under Ark. Code Ann. § 11-9-207 (a)(1) (1987), this Commission is granted the power and duty to determine all claims for compensation. In fulfilling this duty, we are statutorily authorized to appoint administrative law judges "to conduct hearings and investigations and to make such orders, decisions, and determinations as may be required by any rule or order of the commission." Ark. Code Ann. §§ 11-9-205 (b)(1) (c) (1987). Nevertheless, the statute mandates that this Commission shall review any decision of an administrative law judge if a timely application for review is filed by either party. Ark. Code Ann. § 11-9-704 (b)(6) (Supp. 1993). Moreover, if an application for review is filed, the statute also mandates that this Commission shall review the evidence and make findings of fact and rulings of law based on a preponderance of the evidence in the record. Ark. Code Ann. §§ 11-9-704 (b)(6) 11-9-704 (c)(2) (Supp. 1993). In conducting our review, the statute provides that we may, "hear live testimony from the parties, their representatives, and witnesses." Ark. Code Ann. § 11-9-704 (b)(6). However, nothing in the statute requires this Commission to personally hear the live testimony of any witness. Furthermore, nothing in the statute precludes this Commission from rejecting any finding made by an administrative law judge, including findings pertaining to the credibility of witnesses, regardless of whether we have personally heard live testimony or not. For almost fifty years Arkansas's appellate courts have repeatedly interpreted these statutory provisions to require this Commission to conduct a de novo review of the record.See, e.g., Parker Stave Co. v. Hines, 209 Ark. 438, 190 S.W.2d 620 (1945); Arkansas Coal Co. v. Steele, 237 Ark. 727, 375 S.W.2d 673 (1964); Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S.W.2d 166 (1964); St. Michael Hospital v. Wright, 250 Ark. 539, 465 S.W.2d 904 (1971); Dedmon v. Dillard Department Stores, Inc., 3 Ark. App. 108 (1981);Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983); Linthicum v. Mar-Bax Shirt, 23 Ark. App. 26, 741 S.W.2d 275 (1987); McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989); Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989); White v. Air Systems, Inc., 33 Ark. App. 56, 800 S.W.2d 726 (1990); Woods v. Best Western, 32 Ark. App. 196, 799 S.W.2d 565 (1990). Moreover, for almost fifty years, Arkansas's appellate courts have repeatedly held that this Commission is not bound by an administrative law judge's findings, including credibility findings, even though we do not personally hear live testimony. See, Hines, supra; Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S.W.2d 528 (1963); Steele, supra; Smith, supra; Dedman, supra; Linthicum supra; Roberts, supra.
Furthermore, the Arkansas Supreme Court and the Arkansas Court of Appeals have both expressly rejected the contention that this Commission cannot reject the credibility determinations of an administrative law judge when we have not observed and heard the live testimony.Steele, supra; Smith, supra; Wright, supra; Dedmon, supra; Linthicum, supra. In Smith, supra, the Commission reversed the decision of the Administrative Law Judge, and, in affirming the Commission's decision, the Court made the following comments:
Preliminarily, we might dispose of one of the arguments advanced by appellee. It is pointed out that the referee, who originally tried this case, heard all of the witnesses in person, both for claimant and the company, and on appeal, no additional testimony was presented to the Commission. Appellee states that the referee, therefore,
". . . was the sole and exclusive judge of the weight of the evidence and the credibility of the witnesses. In case of contradictions or inconsistencies he had the right to accept the testimony of the witnesses he believed to be most worthy of credit and reject the testimony of those he believed less worthy of credit, or accept, any part he believed true and reject any part he believed untrue. He was in position to take into consideration all the surrounding circumstances of each witness, and of particular importance, the manner and demeanor of each witness on the witness stand.
This contention must be rejected. [Emphasis added]. As recently as October 21 of last year, we had occasion in Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S.W.2d 528, to comment upon this contention, stating,
"We take this occasion to point out that it is the duty of the Commission to make a finding according to a preponderance of the evidence, and not whether there is any substantial evidence to support the finding of the Referee."
Likewise, in Steele, supra, the Commission reversed the referee's denial of compensation, and, in affirming the Commission's decision, the Court made the following comments:
On appeal appellants, Arkansas Coal Company and Commercial Standard Insurance Company, first contend for reversal that "the Full Commission, sitting as a reviewing body, was without authority to pass upon the credibility of witnesses without having heard any witness, and consequently were without authority to reverse the findings of the Referee. . . . In other words, it is appellant's contention that the Full Commission is without authority to reverse the findings of the Referee where an appeal is presented to the Commission solely on the transcript of the record made before the Referee. We do not agree. [Emphasis added]. The authority of the Commission to review an appeal from the findings and award made by the Referee is vested in the Commission by Ark. Stat. Ann. § 81-1323 (b) (Repl. 1960) [currently codified at Ark. Code Ann. § 11-9-704 (b)(6) (Supp. 1993)]. In pertinent part this statute reads:
"* * * the full commission shall review the evidence or, if deemed advisable, hear the parties, their representatives and witnesses, and shall make awards, together with its rulings of law,".
In the very recent case of Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S.W.2d 166, we rejected the very argument the appellants advance in the case at bar. . . .
Then, in Wright, supra, the Court again rejected the contention with the following comments:
Appellants first contend that due to the fact that the referee was the first person who had an opportunity to personally hear the testimony of the claimant and the other witnesses, his decision to disallow recovery should somehow be given more consideration than the commission apparently gave it, particularly in the instant case since the commission's order was the result of a two to one vote. Needless to say, there is no basis in any of our decisions for appellants' suggestion. . . . [Emphasis added].
The Arkansas Court of Appeals also rejected the same contention in Dedmon, supra, with the following comments:
First, it is said that since the pivotal issue here is credibility and only the administrative law judge saw and observed the witnesses, it is his findings of fact which we should test by the substantial evidence rule. This is not the first time this argument has been made. In Ark. Coal Co. v. Steele, 237 Ark. 727, 375 S.W.2d 673 (1964) the court rejected the argument relying upon two previous decisions and two sections of the Workers' Compensation Act. One section of the Act relied upon is now Ark. Stat. Ann. § 81-1325 (b) (Supp. 1981) [currently codified at Ark. Code Ann. § 11-9-711 (b)(3) (Supp. 1993)] and provides:
Upon appeal to the Court of Appeals no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the Commission, within its power, shall be conclusive and binding upon said Court and shall be given the same force and effect as in cases heretofore decided by the Supreme Court of Arkansas, . . .
The other statutory section relied upon is now Ark. Stat. Ann. § 81-1323 (b) (Repl. 1976) [currently codified at Ark. Code Ann. § 11-9-704 (b)(6) (Supp. 1993)], the pertinent part of which provides that on appeal to the full commission it "shall review the evidence or, if deemed advisable, hear the parties, their representatives and witnesses, and shall make awards, . . ."
In relying upon the above sections the court in Ark. Coal Co. v. Steele, pointed out that it had said in Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S.W.2d 528 (1963) that "`it is the duty of the Commission to make a finding according to a preponderance of the evidence and not whether there is any substantial evidence to support the finding of the referee." And the court in Ark. Coal Co. v. Steele also pointed out that in Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S.W.2d 166 (1964) it had rejected the contention that where no additional testimony is presented to the commission the referee is the sole and exclusive judge of the evidence and credibility of the witnesses because he was in position to see and consider the manner and demeanor of each witness who testified.
In concluding that this Commission is not bound by the findings of the administrative law judge, including credibility findings, Arkansas follows the majority rule.See, 3 A. Larson, Larson's Workmen's Compensation Law, § 80.12 (b) (1993). When comparing Arkansas's procedure to the procedure in other jurisdictions, it must be remembered that the scope of administrative review is established by statute and that statutory procedures vary among the various jurisdictions. In this regard, some jurisdictions have statutes which limit the scope of administrative review. However, the legislative bodies of numerous other states have chosen to vest the ultimate power and duty to make factual findings and decisions in an administrative commission or board such as the Arkansas Workers' Compensation Commission, and, in the absence of statutory limitations on the scope of review, courts have found that the commission or board is not bound by the hearing officer's findings. See, e.g., Western Electric Co. v. Workers' Compensation Appeal Board, 160 Cal.Rptr. 434, 99 C.A.3d 629 (Cal.App. 1979); Ero Industries v. Phillips, 162 Ga. App. 432, 428 S.E.2d 181 (1993); Travelers Insurance Co. v. Buice, 124 Ga. App. 626, 185 S.E.2d 549 (1971); Berry v. Industrial Commission, 76 Ill. Dec. 828, 99 Ill.2d 401 459 N.E.2d 963 (1984); Crain Industrial Commission, 57 Ill.2d 158, 311 N.E.2d 156 (1974); Dillon v. Industrial Commission, 195 Ill. App.3d 599, 552 N.E.2d 1082 (Ill.App. 1 Dist. 1990); Transit Motor Express, Inc. v. Smith, 289 N.E.2d 737 (Ind.App. 1972); Giere v. Aase Haugen Homes, Inc., 146 N.W.2d 911 (Iowa 1966); Walker Manufacturing Co. v. Cantrell, 577 So.2d 1243 (Miss. 1991); Hatter v. Cleaning Service Co., 814 S.W.2d 951 (Mo.App. 1991); Jones v. Jefferson City School District, 801 S.W.2d 486 (Mo.App. 1990); French v. Ford Motor Company, 720 S.W.2d 24 (Mo.App. 1986); Blaine v. Big Four Industries, Inc., 233 N.Y.S.2d 386 (N.Y.A.D. 1962); Pollard v. Krispy Waffle #1, 304 S.E.2d 762 (N.C. 1983); Erch v. Brown Oldsmobile, 311 Or. 519, 815 P.2d 1251 (1991); International Paper v. McElroy, 101 Or. App. 61, 789 P.2d 269 (1990); Lowe v. Am-Can Transport Services, Inc., 283 S.C. 534, 324 S.E.2d 87 (S.C. PP (1984); McGuffin v. Schlumberger v. Sangamo, 414 S.E.2d 162 (S.C. 1992);Bullion Hollow Enterprises, Inc. v. Lane, 418 S.E.2d 914 (Va.App. 1992); Goodyear Tire Rubber Co. v. Pierce, 363 S.E.2d 433 (Va.App. 1987; Williams v. Auto Brokers, 6 Va. App. 570, 370 S.E.2d 321 (1988); Rosales v. Department of Labor and Industries, 700 P.2d 748 (Wash.App. 1985); Braun v. Industrial Commission, 36 Wis.2d 48, 153 N.W.2d 81 (1967); Boyd v. Merritt, 177 W. Va. 472, 354 S.E.2d 106 (1986). Moreover, the courts in the majority of these jurisdictions have expressly found that the reviewing board or commission is not bound by the hearing officer's credibility findings, even though the reviewing body does not hear any testimony in addition to that taken at the initial hearing. See, Urlwin v. KCG Builders, supra; Western Electric Co. v. Workers' Compensation Appeal Board, supra; Ero Industries v. Phillips, supra; Travelers Insurance Co. v. Buice, supra; Berry v. Industrial Commission, supra; Crain v. Industrial Commission, supra; Dillon v. Industrial Commission, supra; Hatter v. Cleaning Service Co., supra; Jones v. Jefferson City School District, supra; French v. Ford Motor Company, supra; Blaine v. Big Four Industries, Inc., supra; Pollard v. Krispy Waffle #1, supra; Erch v. Brown Oldsmobile, supra; International Paper v. McElroy, supra; McGuffin v. Schlumberger v. Sangamo, supra; Lowe v. Am-Can Transport Services, Inc., supra; Rosales v. Department of Labor and Industries, supra.
Certainly, the demeanor of orally testifying witnesses is one factor to be considered when assessing the credibility of live testimony. Consequently, where the credibility of witnesses is at issue, this Commission may rely on, and does consider, any observations and comments regarding witnesses' demeanor which are reported by the administrative law judge. Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989). However, demeanor is merely one factor to be considered when credibility is evaluated. Credibility may also be affected by many other factors, such as the plausibility of the witness' testimony, the consistency of the witness' testimony with other evidence, the interest of the witness in the outcome of the case, and the witness' bias, prejudice, or motives. See, Universal Camera, supra. Moreover, these factors may be determined from the record of the proceeding before the administrative law judge. See, Kroger Company v. Morris, 415 S.E.2d 879 (Va.App. 1992). This Commission's statutory duty to determine cases based on the preponderance of the evidence demands that we consider all factors affecting the weight of the evidence, including but not limited to, any observations reported by the administrative law judge.
In short, the constitutionality of our de novo review is well established by the decisions of the United States Supreme Court and other courts that have considered this issue. Those decisions clearly show that our de novo review does not result in any denial of due process even though we do not personally hear live testimony. Furthermore, the scope of administrative review is a matter to be determined legislatively, and our General Assembly has clearly mandated this Commission's de novo review of claims. The provisions establishing our scope of review were included in the original Workmen's Compensation Act enacted by the General Assembly and approved by the citizens of Arkansas in 1940 and 1948. 1939 Ark. Acts 319; 1949 Ark. Acts, Init. Meas. No. 4; see also, J. L. Williams Sons, Inc. v. Smith, 205 Ark. 604, 170 S.W.2d 82 (1943). The General Assembly is presumed to be aware of the fact that our Courts have held for almost fifty years that this Commission is not bound by the findings of the administrative law judge, including the administrative law judge's credibility findings, and that the Courts have held that our statutory authority to reject the credibility findings of the Administrative Law Judge is not affected by the fact that we do not observe the live testimony of the witnesses. However, although the General Assembly has amended the Arkansas Workers' Compensation Law on numerous occasions, it has not seen the need to change this long standing procedure. In fact, the General Assembly expressly reaffirmed its commitment to this Commission's de novo review of the record as recently as 1981, when it added the provision that "administrative law judges and the Commission shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence." Act No. 290 of 1981 (codified at Ark. Code Ann. § 11-9-704 (c)(2) (Supp. 1993). Furthermore, individual members of our appellate Courts have questioned this procedure on at least two occasions, and at least one of these justices expressly suggested that the General Assembly should change the standard of review. Webb v. Workers' Compensation Commission, 292 Ark. 349, 730 S.W.2d 222 (1987) (Newbern, J., concurring); Hamby v. Everett, 4 Ark. App. 52, 627 S.W.2d 266 (1982) (Glaze, J., concurring); See, also, Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991). In 1993, subsequent to these decisions and after intense scrutiny of the Workers' Compensation Law, the General Assembly did make broad changes to the law. However, despite the concurring opinion in Webb and Hamby, which essentially invited the General Assembly to change the standard of review, no such changes were made. Furthermore, the General Assembly expressly affirmed its satisfaction and commitment to the standard of review currently exercised by the Commission by issuing an admonishment against any judicial changes in that standard. Ark. Code Ann. § 11-9-1001 (Com. Supp. 1993). In this regard, Ark. Code Ann. § 11-9-1001, contains the following:
In the future, if such things as the statute of limitations, the standard of review by the Workers' Compensation Commission or courts, the extent to which any physical condition, injury, or disease should be excluded from or added to coverage by the law, or the scope of the workers' compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers' Compensation Commission, or the courts. [Emphasis added.]
Furthermore, the composition of this Commission does not result in any denial of procedural due process. The Arkansas Workers' Compensation Law provides for a Commission composed of three members who are appointed by the Governor. Pursuant to Ark. Code Ann. § 11-9-201 (a)(1) (1987), one member is to be a representative of employers, and this member must have at least five years of experience as an employer based on his or her previous vocation, employment, or affiliation. Pursuant to Ark. Code Ann. § 11-9-201 (a)(2), a second member is to be a representative of employees, and this member must have at least five years of membership in a bona fide labor organization on account of his or her previous vocation, employment, or affiliation. The third member, the Chairman, has no designated interest. Instead, the only requirement for the Chairman is that he or she be an attorney with at least five years experience in the active practice of law. Furthermore, the 1995 General Assembly modified A.C.A. § 11-9-201 (a)(1) and (a)(2). However, the modifications did not change the tribunal nature of the Commission. One member still comes from an employee background, the other comes from an employer background and the third is still to be an attorney with at least five years active practice experience. Presumably, if the General Assembly had wished to change the construction of the Full Commission, they would have during the 1995 session.
The designation of members of a quasi-judicial tribunal as representatives of specified groups does not violate due process. Williams v. Hofley Manufacturing Co., 430 Mich. 603, 424 N.W.2d 278 (1987); Ratliff v. General Motors Corp., 127 Mich. App. 410, 339 N.W.2d 196 (1983);Warren v. Motor Wheel Corp., 110 Mich. App. 731, 313 N.W.2d 286 (1981); Pitoniak v. Borman's, Inc., 104 Mich. App. 718, 305 N.W.2d 305 (1981); Board of Education v. International Union of Operating Engineers, 262 A.2d 426, 109 N.J. Super. 116 (1970); see also, Prygoski, Due Process and Designated Members of Administrative Tribunals, 33 Admin. L. Rev. 441 (1981). Although the designated representatives on this Commission are not obligated or expected to be partisan or biased, due process is not violated even where two members on a tripartite commission or board are actually obligated or expected to be partisan and biased by virtue or his or her designation. Hotel Association of Washington v. District of Columbia Minimum Wage and Industrial Safety Board, 318 A.2d 294 (D.C. 1974); J. Abbott Son, Inc. v. Holderman, 46 N.J. Super. 46, 133 A.2d 705 (1957); Young v. Neale, 457 S.W.2d 358 (Ky. 1970); Arnold v. United Airlines, 206 F.2d 191 (7th Cir. 1961); Henry v. Delta Airlines, 759 F.2d 870 (11th Cir. 1985); United Steel Workers of America v. Union Railroad Co., 648 F.2d 905 ( ___ Cir. 1981). With such commissions and boards, fundamental fairness is preserved because the opposing interests counterbalance each other, causing the decision of the third member, who is undesignated to necessarily be controlling. Therefore, any potential for a biased decision by the commission or board is eliminated by the participation of the neutral and impartial member. Hotel Association of Washington, supra; Holderman, supra; Young, supra; see also Williams, supra. In addition, the very nature of such tribunals promotes fairness and affords procedural protection by assuring that the viewpoint of both interests is included in the decision-making process. Hotel Association of Washington, supra.
However, nothing in the Arkansas Workers' Compensation Law obligates the designated representatives on this Commission to always rule in favor of, or be an advocate for, any particular party. On the contrary, each member of this Commission, including the designated representatives, is statutorily charged with the duty of deciding cases "impartially and without giving the benefit of the doubt to any party." Ark. Code Ann. § 11-9-704 (4) (1987). Consequently, no Commissioner is free to act in a capricious fashion, with disregard for the facts and the law, regardless of his or her statutory designation. Furthermore, the law is well settled that public officers, such as the members of this Commission, are presumed to act lawfully, sincerely, and in good faith in the execution of their duties. United States v. Morgan, 313 U.S. 409 (1940) (hereinafter Morgan II); Withrow v. Larkin, 421 U.S. 35 (1974); Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981). Therefore, it must be presumed that each member of this Commission, including the designees, will impartially decide cases on the basis of the facts elicited and in conformance with the law.
In light of each Commissioner's statutory duty to decide cases impartially, the General Assembly obviously created the designations to assure fair consideration of the varying philosophies, points of view, and policies inherently unique to each of the interests involved in the workers' compensation system. See, Board of Education v. International Union of Operating Engineers, supra. Clearly, like any adjudicator, each Commissioner has underlying philosophies and points of view regarding issues to be decided and policies that guide his or her decision. As a matter of human nature, these philosophies and points of view obviously reflect the past experience which qualify the designated representatives for appointment to this Commission, and, due to the different nature of these experiences, at times these philosophies and points of view may produce differences of opinion regarding the disposition suggested by the facts of a case.
Therefore, even assuming arguendo, that such "policy bias" exists, it would not be constitutionally disqualifying. See, K. Davis, Administrative Law Treatise, § 19.1 (2d ed. 1980 and Supp. 1993). Constitutionally impermissible bias only occurs if the adjudicator's direct and personal interest or relationship with the parties, the subject matter, or the adjudicative facts of the particular case being decided creates a constitutionally impermissible probability that the adjudicator will be incapable of rendering a fair decision on the facts presented. See, Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. Village of Monroeville, 409 U.S. 57 (1972); Gibson v. Berryhill, 411 U.S. 564 (1973); Withrow v. Larkin, 421 U.S. 57 (1975);Johnson v. Mississippi, 421 U.S. 57 (1975); see also,Lambert v. Baldor Electric, 44 Ark. App. 117, 868 S.W.2d 513 (opinion delivered Dec. 15, 1993). Assuming, arguendo, that a decision-maker has a preconceived philosophy or position about policy, law, or legislative facts is simply not sufficient in itself to create the presumption that the member is incapable of rendering a fair decision on the facts presented. See, FTC v. Cement Institute, 333 U.S. 683 (1948); Morgan v. U.S., 304 U.S. 1 (1938); NLRB v. Donnelly Garment Co., 330 U.S. 219 (1947); Hortonville Joint School District No. 1 v. Hortonville Education Association, 429 U.S. 482, 491-92 (1976); see also, Laird v. Tatum, 409 U.S. 824 (1972). Consequently, decisions influenced by philosophical predispositions and general points of view pertaining to questions of law or policy do not violate due process. If such policy predispositions constituted impermissible bias, disqualification would be mandated any time a judge reflected a policy position through his or her past decisions. See, Laird v. Tatum, 409 U.S. 824 (1972).
In this regard, the designated representatives do not gain any direct benefit, by virtue of the designations or otherwise, from ruling one way or another. Consequently, "there exists no `possible temptation' to rule in a biased manner," and no member of this Commission has "any incentive to rule contrary to the law." Lambert, supra. In fact, the impartiality of this Commission was recently recognized by the Arkansas Court of Appeals in Lambert, supra.
Moreover, there is no risk of erroneous deprivation inherent in the composition of this Commission. Instead, the composition of this Commission reduces the risk of erroneous deprivation by assuring that the viewpoint of both groups involved in the workers' compensation system are considered in the decision-making process. Consequently, any bias inherent in the participation of a commissioner identified with one interest group is counterbalanced by the participation of another commissioner identified with the other group. Therefore, even assuming, arguendo, that the designated Commissioners were obligated or predisposed to always rule in favor of the party aligned with his or her group, which we do not assume, the decision of the undesignated chairman would necessarily be controlling. Consequently, the possibility of a biased decision is absolutely eliminated.
Moreover, the resolution of disputes related to occupational accidents and diseases requires a special understanding and knowledge of the work-place environment. This environment is composed of employers and employees, and, due to the differing experience of these groups in the work-place, both acquire unique knowledge and expertise. That knowledge and expertise is essential in determining the appropriate weight to give evidence pertaining to occupational accidents and diseases. See, Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S.W.2d 41 (1960); see also, Wright v. Arkansas State Plant Board, 311 Ark. 125, 842 S.W.2d 42 (1992). Consequently, vesting the ultimate power and duty to determine claims in a commission which includes individuals whose backgrounds reflect the differing experiences and interests inherent in the work-place is a rational means of promoting informed decision making and fundamental fairness, and the elimination of the designations from the scheme designed by the General Assembly would remove this necessary expertise from the decision making process. We also note that without the statutorily mandated representatives, there would be a possibility that all or a majority of the Commission would be aligned with one interest group. Obviously, the General Assembly concluded that such a lack of balance before a specialized administrative tribunal such as the Workers' Compensation Commission would increase the risk of erroneous deprivation of protected interests. Consequently, to guarantee against such unbalance, the General Assembly created a scheme designed to assure equal representation. Clearly, this scheme protects the rights of all litigants before the Workers' Compensation Commission greater than any alternative scheme.
In short, the composition of this Commission does not result in a denial of due process. By vesting the ultimate power and duty to determine claims in a balanced commission composed of members representing the divergent interests involved in the workers' compensation system, the Arkansas General Assembly established a scheme for resolving contested workers' compensation claims which assures fundamental fairness and minimizes the risk of erroneous deprivation of protected interests. Furthermore, the statutorily mandated composition of this Commission and our de novo review of claims are both essential components of this scheme, and neither results in any denial of due process.
Accordingly, for the reasons stated herein, we find that neither our de novo review of claims nor the composition of this Commission results in any denial of due process. Therefore, we find that the claimant's motion must be, and hereby is, denied.
IT IS SO ORDERED.