Opinion
CLAIM NO. E805425
ORDER FILED NOVEMBER 16, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PAUL E. REEVES, Attorney at Law, Texarkana, Arkansas.
Respondent represented by the HONORABLE NELSON V. SHAW, Attorney at Law, Texarkana, Arkansas.
ORDER
This matter comes before the Full Commission on the claimant's motion for reconsideration of the Full Commission's decision filed August 12, 1999. After careful consideration of the claimant's motion, the respondents' response thereto, and all other matters properly before the Commission, we find no reason to disturb our August 22, 1999 decision. Therefore, we find that the claimant's motion must be, and hereby is, denied.
In his motion, the claimant asserts two grounds for reconsideration. First, the claimant asserts that the Full Commission's credibility determination unconstitutionally denied the claimant due process. Second, the claimant asserts that the administrative law judge applied an improper statutory interpretation to Ark. Code Ann. § 11-9-505, and that the Full Commission, therefore, erred in affirming the administrative law judge's finding that the claimant failed to establish that he is entitled to benefits under Ark. Code Ann. § 11-9-505(a).
As regards the claimant's second argument, we point out that we did not adopt the administrative law judge's rationale for denying benefits under Section 505(a). To the contrary, we found that the preponderance of the credible evidence failed to establish that the employer refused to return the claimant to work. Therefore, we see no merit in the claimant's second grounds for reconsideration.
As regards the claimant's first argument, the claimant is correct that credibility of witness testimony was at issue in our reversing the administrative law judge's finding that the respondent terminated the claimant on June 29, 1998, and we agree with the claimant that our credibility determination was at odds with the credibility determination reached by the administrative law judge. We also note that the claimant has filed a timely motion for reconsideration with regard to his constitutional challenge. We, therefore, find that the claimant has established both that he is a proper party to present the constitutional challenge and that he has timely raised the constitutional issue.Compare, Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 641 (1991); Guy v. Breeko Corp., 310 Ark. 187, 832 S.W.2d 816 (1992); Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989).
As regards the circumstances of this case in the due process context, the administrative law judge held an evidentiary hearing on December 10, 1998, and the same administrative law judge who conducted the hearing rendered a decision in an opinion and order on February 11, 1999. The Full Commission conducted a de novo review of the entire record, including the administrative law judge's opinion and order filed on February 11, 1999, and we reversed the administrative law judge's finding that the preponderance of the evidence establishes that the respondent terminated the claimant. For the reasons discussed below, we find that the claimant has failed to establish that our credibility determinations violate the claimant's due process rights under these circumstances.
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).
We find that 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); 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 (3rd 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.E.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, supra. 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 fact-finder 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 in Morgan, supra. InMorgan, 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 fact-finder 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 andAllentown 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) (Repl. 1996), 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) (Repl. 1996). 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) (Repl. 1996). 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) (Repl. 1996). 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.q., 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 contentions 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. State. 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 award, . . ."
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 findings 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 inPotlatch 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.q.,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 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);Adams v. AVX Corp., 509 S.E.2d 411 (N.C. 1998); 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); Lower 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 fond 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; Adams v. AVX Corp., 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 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) (Repl. 1996). 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 Worker's 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 (Repl. 1996). 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.]
Accordingly, for the reasons discussed herein, we find that the claimant's motion for reconsideration must be and hereby is, denied.
IT IS SO ORDERED.
_______________________________
MIKE WILSON, Commissioner
CONCURRING AND DISSENTING OPINION
[8] 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 our previous denial of benefits._______________________________ PAT WEST HUMPHREY, Commissioner