HENSLEY v. AID TEMPORARY SERVICES, 2001 AWCC 46

CLAIM NO. E815157

JERRY D. HENSLEY, EMPLOYEE, CLAIMANT v. AID TEMPORARY SERVICES, INC., EMPLOYER, RESPONDENT, INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 13, 2001

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

Claimant represented by HONORABLE FREDERICK S. “RICK” SPENCER, Attorney at Law, Mountain Home, Arkansas.

Respondent represented by HONORABLE GLENN LOVETT, JR., Attorney at Law, Jonesboro, Arkansas.

ORDER
This matter is currently before the Commission on the claimant’s Motion to Reconsider. After considering the claimant’s Motion, the respondents response thereto, and all other matters properly before the Commission, we find that the Motion of the claimant should be denied.

On December 5, 2000, the Commission issued an Order and Opinion finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. The Commission’s Opinion reversed the decision of the Administrative Law Judge that was filed on March 7, 2000, finding that the claimant proved that he suffered a compensable injury. On December 28, 2000, the claimant filed a Motion to Reconsider and also filed a Notice of Appeal to the Court of Appeals. In his Motion, the claimant argues that the claimant’s constitutional guarantee of due process of law under the 14th Amendment of the Constitution of the United States and the Arkansas Constitution was violated because the Commission made credibility determinations that were in contrast and opposite of what the Administrative Law Judge made. The claimant argues that the Administrative Law Judge was the only person to actually see and make determinations regarding the demeanor for the witnesses. The claimant contends that the Full Commission is not in a position to make credibility determinations based upon the “cold record”.

On January 8, 2001, the respondents filed a response to the claimant’s Motion to Reconsider. The respondents request that the Motion be denied.

This issue has been addressed recently by the Arkansas Court of Appeals in the case of Stiger v. State Line Tire Service, ___ Ark. App. ___, ___ S.W.3d ___ (Dec. 20, 2000). The Court found that the claimant’s due process rights had not been violated. The Court stated:

“When the Commission reviews a cold record, demeanor is merely one factor to be considered in credibility determinations. Numerous other factors must be included in the Commission’s analysis of a case in reaching its decision, including the plausibility of the witness’s testimony, the consistency of the witness’s testimony with the other evidence and testimony, the interest of the witness in the outcome of the case, and the witness’s bias, prejudice, or other motives. The flexibility permitted the Commission adequately protects the claimant’s right of due process of law.”

Therefore, after considering the claimant’s Motion, the respondent’s response thereto, and all other matters properly before the Commission, we find that the claimant’s Motion for Reconsideration should be denied.

IT IS SO ORDERED.

_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
_______________________________ SHELBY W. TURNER, Commissioner

Commissioner Turner concurs and dissents.

While I concur with the order of the majority concerning the constitutional issue raised by claimant, I must respectfully dissent from the denial of claimant’s motion to reconsider the Commission’s previous denial of benefits.

______________________________ SHELBY W. TURNER, Commissioner