Summary
In Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989), and Hamilton v. Jeffery Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982), we held that the rule that prohibits presentation of constitutional issues for the first time on appeal applies with equal force to appeals from the Commission.
Summary of this case from Shaw v. Commercial RefrigerationOpinion
PER CURIAM:
Petition for Rehearing Denied.
COOPER, Judge, concurring.
I agree with the denial of the appellant's petition for rehearing but I write [28 Ark.App. 192-A] separately because, under the circumstances of this case, I have concluded the appellant's due process argument should have been addressed rather than dismissed on the ground that he failed to preserve it. Johnson v. Hux, 28 Ark.App. 187, 191, 772 S.W.2d 362, 364 (1989) (Cooper, J., dissenting).
After a hearing before the administrative law judge, the appellant's injury was found to be compensable. However, the full Commission reversed the administrative law judge's finding and based its opinion solely on the credibility of the appellant's testimony.
The appellant contends that our statutory system which allows the Workers' Compensation Commission to make its own findings concerning the credibility of witness and to disregard the credibility findings of the administrative law judge denies him due process. Citing St. Louis--San Francisco Ry. Co. v. Mangum, 199 Ark. 767, 136 S.W.2d 158 (1940), the appellant asserts that, because the administrative law judge has the opportunity to observe the witnesses and the Commission only reviews a cold record, unreasonable and arbitrary state action results and operates as a denial of due process.
In his brief the appellant cites a Wisconsin case which held that there may be a due process violation where the Commission's findings on credibility of witnesses is contrary to the credibility findings of the hearing examiner. Braun v. Industrial Comm., 36 Wis.2d 48, 153 N.W.2d 81 (1967). In Braun, the issue of whether or not the claimant's injury arose in the course of employment depended on the testimony and credibility of the claimant. The hearing officer found the claimant not to be credible and denied benefits. However, the Commission, without benefit of live testimony, reversed and found the injury to be compensable. In finding that the Commission's actions violated due process, the Supreme Court of Wisconsin noted that the ultimate responsibility for fact finding is upon the Commission and not the examiner, and that the reviewing court's duty is to scrutinize the Commission's findings to see if there is credible evidence to support the finding. The Court stated further, that when the Commission's findings as to credibility of the witnesses is contrary to those of the examiner, it is a denial of due process if the Commission does not have the benefit of the findings, conclusions, and impressions of the hearing officer who conducted the hearing.
However the majority of States are in accord with the [28 Ark.App. 192-B] Arkansas rule that the Commission, and not the administrative law judge, is the fact-finder on matters of credibility. 3 A. Larson, The Law of Workmen's Compensation, § 80.12(b) (1989). Larson classifies the Wisconsin method as a "modified majority rule" because credibility is the only finding by an administrative law judge that is binding on the Commission. All other factfindings are left to the Commission under this modified rule. 3 A. Larson, The Law of Workmen's Compensation, § 80.12(c) (1989). Furthermore, in Arkansas, the Commission has the benefit of the Administrative Law Judge's conclusions and findings because his opinion is part of the record reviewed by the Commission. The Commission may also rely on the administrative law judge's observations and comments concerning the claimant's demeanor, conduct, appearance, or reactions at the hearing. Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989).
The procedure used by the Commission must be fundamentally fair and due process requires a hearing before one's rights are adjudged, Duggan v. Potlatch Forests, Inc., 92 Idaho 262, 441 P.2d 172 (1968), and the hearing and review by the Commission must be conducted according to the prescribed statutory law and in a reasonable manner. Pollard v. Krispy Waffle # 1, 63 N.C.App. 354, 304 S.E.2d 762 (1983). Where a claimant is given appropriate notice and opportunity to be heard, it does not constitute a denial of due process for the Commission to make findings of credibility without the benefit of live testimony. Id; see also Eastham v. Whirlpool Corp., 524 N.E.2d 23 (Ind.App. 3rd Dist, 1988). In Bowman Transportation v. Arkansas-Best Freight, 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974), the United States Supreme Court held that, in matters of credibility, an agency is not bound by the findings of its hearing examiners.
In Arkansas, it is the Commission's duty to make findings of fact and to assess the credibility of witnesses. In exercising this duty, the Commission may hear the parties, their representatives and witnesses, Ark.Code Ann. § 11-9-704(b)(6) (1987), permit the introduction of additional evidence, Ark.Code Ann. § 11-9-705(c); study briefs in pending cases; Rules of the Commission, Rule 18; or hear oral arguments if requested by either the parties or the Commission; Rules of the Commission, Rule 17. Clearly the legislature and the Commission have provided statutes and Rules which provide a claimant with several opportunities to be heard without harming the purpose of speedy recovery. I believe that the procedure used in Arkansas does not violate due process.
MAYFIELD, J., joins in this opinion.