CLAIM NO. F204378
Before the Arkansas Workers’ Compensation Commission
ORDER FILED AUGUST 16, 2005
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE FREDERICK S. SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondent represented by HONORABLE CAROL L. WORLEY, Attorney at Law, Little Rock, Arkansas.
ORDER
The above-styled matter is currently before the Full Commission on the claimant’s MOTION TO RECUSE AND MOTION TO REMAND FOR SUPPLEMENTAL HEARINGBEFORE INDEPENDENT JUDICIARY. After reviewing all of the relevant pleadings before us, the Full Commission denies the claimant’s motions.
The claimant’s MOTION TO RECUSE, which entails a recusal of the entire workers’ compensation system’s administrative law judges and Commissioners, is not based on any objective showing of bias or a communication of bias and is therefore denied.
The court in Turner v. N.W. Ark. Neurosurgery Clinic, ___ Ark. App. ___, ___ S.W.3d ___ (2005) held the following in regard to recusal:
When recusal is in issue, a judge has a duty to sit on a case unless there is a valid reason to disqualify. Perroni v. State, ___ Ark. ___, ___ S.W.3d ___ (June 17, 2004). It is a rule of long standing that there is a presumption of impartiality on the part of judges. Kimbrough v. Kimbrough, 83 Ark. App. 179, 119 S.W.3d 66 (2003). A judge’s decision whether to recuse is within his discretion and will not be reversed absent abuse of that discretion. Id. The party seeking recusal must demonstrate bias. Id. Further, unless there is an objective showing of bias, there must be a communication of bias in order to require recusal for the implied bias. Id. The fact that a judge has ruled against a party is not sufficient to demonstrate bias. Searcy v. Davenport, 352 Ark. 307, 100 S.W.3d 711 (2003).
The claimant has not produced evidence that could be held as an objective showing of bias, nor has an actual communication of bias which would require a recusal for implied bias been produced. Without any actual evidence of bias there is no requirement to recuse. Since the claimant has failed to demonstrate prejudice or a conflict of interest against the claimant’s attorney or his client by any member of the workers’ compensation system, administrative law judges or commissioners, the Full Commission denies the motion for recusal.
The claimant’s MOTION TO REMAND FOR SUPPLEMENTAL HEARING BEFOREINDEPENDENT JUDICIARY is also denied. The claimant has failed to produce evidence which would require the disqualification of the administrative law judges or Commissioners. The relevant section of the Act in reference to independent judiciaries is Ark. Code Ann. § 11-9-201(c)(1), which states:
When any member of the commission is disqualified for any reason to hear and participate in the determination of any matter pending before the commission, the Governor shall appoint a qualified person to hear and participate in the decision on the particular matter. The special member so appointed shall have all authority and responsibility with respect to the particular matter before the commission as if the person were a regular member of the commission but shall have no authority or responsibility with respect to any other matter before the commission.
The claimant has failed to show any valid reason for the disqualification of any administrative law judges or Commissioners, therefore the motion to remand for a supplemental hearing before an independent judiciary is denied.
Scope of review on appeal is set forth in AWCC RULE 25(b), which states:
All legal and factual issues should be developed at the hearing before the Administrative Law Judge or single Commissioner. The Commission may refuse to consider issues not raised below. (Effective March 1, 1982).
The Commission is required to rule on constitutional questions that are properly before it in order to provide the appeals court with fact-findings sufficient to decide the constitutional issue. Green v.Smith Scott Logging, 54 Ark. App. 53, 922 S.W.2d 746 (1996). All legal and factual issues should be developed at the hearing before the administrative law judge. See, Ester v. National Home Centers, Inc., 61 Ark. App. 91, 967 S.W.2d 565 (1998) (citing American TransportationCo. v. Payne, 10 Ark. App. 56, 661 S.W.2d 748 (1982)). Because the claimant did not raise these issues before the administrative law judge, we find that it is improper for the Full Commission to address these new issues for the first time on appeal. See, Lawrence v. Sunbeam OutdoorProducts, Full Commission Opinion, Filed June 3, 1998 (Claim No. E704127); Gary R. Toombs v. Griffin Petroleum, Full Commission Opinion, Filed April 13, 1998 (Claim No. E616161); Dorothy Ponder v. PattersonCleaners, Inc., Full Commission Opinion, Filed March 10, 1997 (Claim No. E514528). However, even if it were proper to raise the constitutional issue for the first time after the hearing, we would still find that the Arkansas Workers’ Compensation statutes are constitutional.
Arkansas’ Supreme Court has previously denied constitutional challenges to Arkansas Workers’ Compensation Law. Arkansas Workers’ Compensation Law is valid “as against general objections that they are unconstitutional, and as against the objections that they are class legislation, and make unreasonable classifications, deny equal protection and due process of law, impair the obligation of existing contracts, though applying such contracts, and interfere with the right to contract, the right to jury trial, and vested rights by abolishing existing statutory and common-law remedies and that they abridge privileges and immunities.” Young v. G.L. Tarlton, Contractor, Inc., 204 Ark. 283, 162 S.W.2d 477 (1942); also see, Hagger v. Wortz BiscuitCo., 210 Ark. 318, 196 S.W.2d 1 (1946). Although the Court was referencing Act 319 of 1939 and not the present ACA 11-9-101 et al, we believe that this holding is still germane and that constitutional challenges of the Arkansas Workers’ Compensation Laws in toto, fail.
The constitutionality of the composition of the Commission was previously addressed in Kathryn Stewart v. Med Tech., Full Commission Order, Filed July 12, 1995 (Claim No. E020924). The court said “The Commission acts in a quasi-judicial capacity and its awards are in the nature of judgments. The Act provides a symmetry for the composition of the tripartite commission.” Webb v. WCC, 292 Ark. 349, 730 S.W.2d 222
(1987). In Stewart, it was specifically held that the composition of the Full Commission does not violate or deny a party due process of law.
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 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.
The designation of members of a quasi-judicial tribunal as representatives of specified groups does not violate due process. [Internal citations omitted]. 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 or biased by virtue or (sic) his or her designation. [Internal citations omitted]. 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. [Internal citations omitted]. 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. [Internal citations omitted].
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. [Internal citations omitted]. 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.
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. [Internal citations omitted]. 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. [Internal citations omitted]. 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.
In Stiger v. State Line Tire Serv., 72 Ark. App. 250, 35 S.W.3d 335
(2000), the court discusses the powers and duties of the Commission.
Arkansas Code Annotated section 11-9-207 (Repl. 1996) grants to the Commission the power and the duty to determine all claims for compensation. In addition, the statute gives the Commission the authority to appoint administrative law judges to conduct hearings and investigations and make whatever orders, decisions, and determinations are required by a rule or order of the Commission. See Ark. Code Ann. § 11-9-205 (Repl. 1996).
The court in Stiger also discusses the constitutionality of a statute.
Statutes are presumed to be constitutional and the burden of proving otherwise is placed upon the party challenging the legislation. Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998). All doubts are resolved in favor of a statute’s constitutionality. Id. The U.S. Supreme Court has identified three factors to be considered when determining what type of due process is warranted. These factors, which were adopted by our court in Quinn v. Webb Wheel Prods., 59 Ark. App. 272, 957 S.W.2d 187 (1997), are:(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional procedural safeguards, and (3) the government’s interest, including the fiscal and administrative burdens that additional or substituted procedures would entail. Id.
After reviewing the Arkansas procedure, the foreign case law cited by the appellant, and the opinion expresses in 3 A. Larson, The Law of Workmen’s Compensation, Judge Cooper concluded in Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989):
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 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.
The claimant implies that the Arkansas Workers’ compensation system does not have any safeguards in place to assure claimants due process. This issue was addressed by the Full Commission in Douglas v.International Paper Co., Full Commission Opinion, Filed August 18, 1994 (Claim Nos. E213574 E212573):
. . . the workers’ compensation system is replete with safeguards. The primary focus of the due process safeguards is that everyone has a fair trial, not the best trial. The focus is on the opportunity to be heard. North Georgia (sic) finishing, Inc. v. Dillihue, 419 U.S. 601
(1975); Arnette v. Kennedy, 416 U.S. 134 (1974); Maekey v. Montrym, 443 U.S. 101 (1979). Under our workers’ compensation system, a claimant is afforded much more than the minimal elements of due process. Claimants have the right to a hearing, can compel discovery, subpoena witnesses, and appeal an unfavorable decision.
An act of the General Assembly violates the separation-of-powers doctrine when it deprives the courts of the power to decide a judicial question. Ball v. Roberts, 291 Ark. 84, 722 S.W.2d 829 (1987). One such judicial function is the ascertainment of the facts of a particular case. McConnell v. State, 227 Ark. 988, 302 S.W.2d 805 (1957). The U.S. Supreme Court in Mistretta v. U.S., 488 U.S. 361 (1989) announced a test to determine a violation of Judicial separation of Powers. “First, that the Judicial Branch neither be assigned nor allowed `tasks that are more properly accomplished by [other] branches,’ and, second, that no provision of law `impermissibly threatens the institutional integrity of the Judicial Branch’.” Id. at 383 (citations omitted). The first part of the test is without issue. In support of part two, an allegation against institutional integrity, the claimant offers the affidavits of two former administrative law judges. Both affirm that they were fearful of the power of the executive branch. However, any factual violations of their judicial independence or integrity by this power are missing. The affiants allege neither that they were unable to ascertain facts in a case nor that the Workers’ Compensation laws threatened their institutional integrity.
The framers of the United States Constitution were concerned with overt attempts to subvert the tripartite system of government. James Madison wrote that separation of powers “d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul (sic) over the acts of each other,” but rather “that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted.” The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961) (emphasis in original). Instead claimant and affiants allege a “subconscious effect of undue influence” as a subversion of the separation of powers. Madison was concerned that one branch would wield power over another branch. Subconscious influence could hardly exert the immense power required to control judicial powers and violate the separation of powers doctrine.
“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet TubeCo. v. Sawyer, 343 U.S. 579, 635 (1952) (concurring opinion). The claimant alleges that the interdependence between the executive, legislative, and judicial branches of Arkansas’ government are violated by the Workers’ Compensation law. Furthermore, the claimant alleges that executive pressure upon and by the Workers’ Compensation Commission violates judicial integrity. There is no law prohibiting the executive branch from voicing a political stratagem, in this case a pro-business environment for Arkansas, and announcing it to the judiciary. It is the nature of the judiciary that they have forsworn to maintain their integrity against political, external or internal pressures.
A Legislative declaration in reference to the Arkansas Workers’ Compensation statute is set forth in Ark. Code Ann. § 11-9-1001:
The Seventy-Ninth General Assembly intends to restate that the major and controlling purpose of workers’ compensation is to pay timely temporary and permanent disability benefits to all legitimately injured workers that suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom, and then to return the worker to the work force. When, and if, the workers’ compensation statutes of this state need to be changed, the General Assembly acknowledges its responsibility to do so. . . . 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.
It is not in the Full Commissions power to change the Arkansas Workers’ Compensation Statute, that right is designated to the legislature. It is our duty to enforce the statute as set forth by the legislature. In the event that out interpretation of the statute is not agreed upon by either party to a claim, either party may then opt to appeal the claim for further review.
The Full Commission again denies the claimant’s motions for recusal and remand to an independent judiciary. We also find that the constitutional issues raised by the claimant are not properly before this Commission and should have been raised below in front of the administrative law judge. In the alternative, if it was proper to raise the constitutional issues for the first time before the Full Commission after the hearing, we would still find that the Arkansas Workers’ Compensation laws are constitutional.
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ SHELBY W. TURNER, Commissioner
________________________________ KAREN H. McKINNEY, Commissioner