GREEN v. SMITH SCOTT LOGGING, 1996 AWCC 191

CLAIM NO. E217823

CALVIN GREEN, EMPLOYEE, CLAIMANT, v. SMITH SCOTT LOGGING, EMPLOYER, RESPONDENT, and CAPITAL CITY INSURANCE COMPANY, INC., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED AUGUST 26, 1996

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.

Respondents represented by W. LEE TUCKER, Attorney at Law, Bryant, Arkansas.

[1] ORDER
[2] This matter comes on for review by the Full Commission from a remand by the Arkansas Court of Appeals, directing this Commission to rule on the constitutional question raised by claimant herein. Specifically, claimant has alleged that Ark. Code Ann. § 11-9-521 (Repl. 1996), better known as the “scheduled injury” statute, is violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

[3] In remanding this case, the Arkansas Court of Appeals stated that:

We believe that requiring the Commission to decide constitutional issues will ensure that the Commission takes a “hard look” at the question, thereby giving us the benefit of its experience and expertise. See Sierra Club v. Robertson, 784 F. Supp. 593 (W.D. Ark. 1991), aff’d 28 F.3d 753
(8th Cir. 1984). Such a requirement would also serve the important purpose of presenting us with fact-findings sufficient to permit the constitutional issues to be decided. This will permit many needless remands, in keeping with our policy of discouraging piecemeal appeals in workers’ compensation cases. See, e.g., Balder Electric Co. v. Jones, 29 Ark. App. 80, 777 S.W.2d 586 (1979).

[4] Green v. Smith Scott Logging, 54 Ark. App. 53, 922 S.W.2d 746 (1996). [5] On the record and briefs before us, we are unable to accomplish the clearly stated objectives of the Court of Appeals in remanding constitutional issues for our consideration. Claimant first raised the constitutional issue in the instant case on appeal to the Full Commission, so that it did not receive development at the trial level. [6] In addition, we are faced with little more than an assertion that the statute in question is unconstitutional, and are directed to little, if any, controlling or otherwise illuminating case law by the parties’ briefs. We accordingly find the record before us to be an insufficient one on which to make a ruling as to the constitutionality of the scheduled injury statute. [7] As part of our mandate from the Court of Appeals, this Commission has the discretion to conduct “such further proceedings as it deems necessary consistent with this opinion.” Id. at 55. [8] We thus hereby direct the Clerk of the Commission to establish a briefing schedule concerning the constitutional issues raised by claimant. If either party believes an additional hearing is necessary, the party should request a remand to an Administrative Law Judge. [9] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner ALICE L. HOLCOMB, Commissioner