author: David Newbern, Judge. Marian F. Penix, Judge,

text:
    Agnes COPELAND v. DANVERS CORPORATION
    CA 79-232
    595 S.W. 2d 940
    Court of Appeals of Arkansas
    Opinion delivered February 13, 1980
    Rehearing denied March 12, 1980
    Petition for review denied March 24, 1980
    Released for publication March 26, 1980

      Everett E. Harber, for appellant.

      Reid, Burge & Prevallet, for appellee.
   David Newbern, Judge.

In this workers’ compensation case, we find there was no substantial evidence to support the commission’s determination that the claimant did not suffer an aggravation of a preexisting condition.

Agnes Copeland worked as a shoe crimper at the appellee’s factory. She developed a bunion on the foot she used to press the pedal on the crimping machine. Surgery was performed to remove the bunion, and the surgery unfortunately left the great toe on her right foot in a cocked or clawlike condition. Her medical bills were partially paid by a group insurance hospitalization policy, and no workers’ compensation benefits were paid in connection with the surgery.

From the time the appellant returned to her job after the surgery (February, 1975) until the incident which is the subject of the claim before us (March 7, 1978), she worked regularly, although her toe remained in an unsatisfactory condition.

On March 7, 1978, the appellant fell over some boxes while working, and injured the same foot. The injured part was the same great toe which had been left deformed. Diagnoses by two physicians revealed fractures of and contusions to the toe, respectively. The appellant was paid workers’ compensation benefits for some of her medical bills and temporary total disability for the period from March 8, 1978, to April 10, 1978.

The appellant has since undergone surgery which corrected the preexisting condition of her toe. She has not received compensation for that surgery or for the subsequent physical therapy she has taken. Her contention is she should receive such compensation because her injury on March 7, 1978, aggravated her preexisting condition, making the surgery and subsequent therapy necessary.

The evidence consisted, in part, of testimony by the appellant and her daughter that she is frequently in pain, both in her foot and in her back. The appellant considers herself unable to work at all. A personnel officer of the appellee also testified that the surgery performed to correct the deformity of the toe was said by the appellant to be unrelated to the March 7 injury. The appellant denied having said it, and this testimony is not mentioned in either the opinion of the commission or the brief of the appellee.

In his opinion, which was adopted by the full commission, the administrative law judge relied virtually exclusively on the medical testimony of a Dr. Lynch who treated the appellant. The doctor said:

This entire condition is certainly not related to an on-the-job injury, but I feel her symptoms will be more persistent and more long lasting than would ordinarily be the case until the toe is corrected.

Although there may be a fine distinction between saying an injury aggravates a preexisting condition and is thus compensable, on the one hand, and saying, on the other hand, a preexisting condition exacerbates a present injury, we cannot see it. Nor are we willing to give weight to the bare conclusion of the physician that the appellant’s condition was not related to an on-the-job injury. We suspect he meant to say her undisputedly compensable injury of March 7, 1978, was not responsible for her preexisting condition. He was thus merely stating the obvious when he said her “entire condition” was not caused by the March 7 incident.

We must affirm the commission if we find its decision supported by any substantial evidence. American Can Co. v. McConnell, 266 Ark. 741, 587 S.W.2d 583 (Ark. App. 1979); Dillaha Fruit Co. v. LaTourette, 262 Ark. 434, 557 S.W. 2d 397 (1977). We find the testimony of the doctor which was emphasized by the commission is not substantial evidence in support of its decision. Neither the opinion of the commission nor the appellee’s brief calls to our attention any other evidence in support of the commission’s finding, and we have found none in our own review of the record.

Reversed and remanded.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. The majority has conjectured as to what Dr. Lynch “meant to say”. As an appellate court we are not allowed to go outside the record and speculate as to what a witness intended by his words. This is a determination for the fact finder.

The credibility of a witness is a matter to be assessed by the fact finder — the Workers’ Compensation Commission. Dena Construction Company v. Herndon, 264 Ark. 791, 575 S.W. 2d 155 (1979); Mass Merchandise Inc. v. Harp, 259 Ark. 830, 536 S.W. 2d 729 (1976); May v. Crompton-Arkansas Mills Inc., 253 Ark. 1080, 490 S.W. 2d 794 (1973).

The Workers’ Compensation Commission decided in a unanimous opinion the surgery required for claimant’s toe was in no way necessitated by a job related injury. “To find that the March 7, 1978 incident aggravated this condition would be mere speculation and such finding is not warranted from the medical evidence.”

For the above reason I respectfully dissent.


source: Caselaw Access Project

author: Ernie E. Wright, Chief Judge.

license: Public Domain

text:
    Donald SPRINGSTON, Employee v. JONES TRUCK LINES, INC. et al
    CA 79-270
    595 S.W. 2d 247
    Court of Appeals of Arkansas
    Opinion delivered February 20, 1980
    Released for publication March 12, 1980

      Barry J. Watkins, for appellant.

      Wright, Lindsey & Jennings, for appellees.
   Ernie E. Wright, Chief Judge.

This is an appeal from a decision of the Workers’ Compensation Commission.

The appellant, Donald Springston, was injured in 1963 while in the employ of Jones Truck Lines, Inc. The injury was accepted as compensable and the appellant was paid $1,-765.00 for temporary total disability and $1,890.00 for 12% permanent partial disability to the body as a whole. He continued in the employ of appellee Jones Truck Lines and sustained a second compensable injury in July, 1974. He was paid $3258.50 for temporary total disability and $3591.00 for permanent partial disability.

Upon appeal from a decision of the administrative law judge the Commission upheld the determination that appellant was permanently and totally disabled as of July 5, 1974, as a result of the combined effect of the two injuries. The Commission further held Ark. Stat. Ann. § 81-1313 (f)(1) was applicable thereby limiting appellees’ total compensation payments made for both injuries in the total sum of $10,504.00. This resulted in an award of 278.13 remaining weeks of compensation payable aggregating $18,-496.00.

Appellant contends the Commission erred in applying Ark. Stat. Ann. § 81-1313 (f)(1); and if the section is applicable it was error to give appellees credit for the compensation paid incident to the 1963 injury.

The section of the statute in question as it existed at the time of the last injury reads:

(f) SECOND INJURY: In cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto:
(1) If an employee receives a permanent injury after having previously sustained another permanent injury in the employ of the same employer, for which he is receiving compensation, compensation for the subsequent injury shall be paid for the healing period and the permanent disability by extending the period and not by increasing the weekly amount. When the previous and subsequent injuries received result in permanent total disability, compensation shall be payable for permanent total disability but the sum total of compensation payable for previous and subsequent injuries shall not exceed 450 weeks or twenty-nine thousand dollars.

In Wooten v. Mohawk Rubber Co., et al, 259 Ark. 830, 536 S.W. 2d 729 (1976), the court had occasion to consider the same statute in the case of a worker who sustained a second permanently disabling injury in the same employment, and was awarded permanent total disability as a result of the combined injuries. At the time of the second injury the statute contained a provision limiting the total compensation for both injuries to $19,500.00. The court held where the combined effect of the two permanently disabling injuries in the same employment resulted in total and permanent disability the total compensation limit in § 81-1313 (f)(1) was applicable.

Prior to the last injury of the present claimant the statute had been revised to increase the maximum liability to $29,-000.00.

We are unable to agree with appellant’s contention the statute is applicable only when the employee sustains a subsequent injury while he is continuing to receive compensation for a previous permanently disabling injury suffered in the same employment. The broader language of the introductory sentence in § 81-1313 (f) indicates the legislative intent was otherwise. Also, there would seem to be no reasonable basis for the application of the section only to those workers who were still drawing compensation from the first injury as opposed to those who have drawn all compensation for the first injury when the final permanent injury occurred.

We conclude the decision of the Commission correctly determined the maximum statutory compensation to be $29,-000.00 for permanent total disability under these particular circumstances. Likewise the Commission was correct in holding appellees were entitled to credit for the compensation previously paid incident to both injuries.

Affirmed.


text:
    Robyn Lynne CRAIN v. STATE of Arkansas
    CA CR 79-132, 133, 134
    594 S.W. 2d 863
    Court of Appeals of Arkansas
    Opinion delivered February 20, 1980
    Release for publication March 12, 1980

      McArthur & Lassiter, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.

   Ernie E. Wright, Chief Judge.

Appellant was charged by three separately filed informations with three separate violations of Ark. Stat. Ann. § 82-2617 (Repl. 1976) for felonious delivery of controlled substances. Trial by jury was waived and the three charges were consolidated and tried before the court. The trial court found appellant guilty as charged on each of the three counts and imposed a sentence of fifteen years imprisonment with five years suspended on the charge of delivery of hydromorphone and a ten year suspended sentence on each of the two charges for delivery of heroin.

The only issue on appeal is the sufficiency of the evidence to support the verdicts.

To support the charge that appellant unlawfully and feloniously delivered heroin, a controlled substance, on or about April 17, 1978, Officer Hicks, a narcotics officer with the North Little Rock Police Department, and Rebecca Nease, who was cooperating with the police department, testified appellant delivered to her a package which was supposed to be heroin in the presence of Officer Hicks and she paid to appellant $100.00 provided by the officer. Officer Hicks gave similar testimony and quoted appellant as saying the, “Heroin was good stuff, not like the cheap stuff on the streets at this time.” Officer Hicks testified he delivered the substance to the State Crime Lab for analysis. The package containing the substance was introduced in evidence. An expert witness with the State Crime Lab testified he analyzed the substance in question and the result was positive for heroin. The appellant contends the evidence is not sufficient because Ms. Nease testified she was told by the police they would not pursue some charges against her if she would work with them. Officer Hicks denied such promise.

The appellant contends this conflict in testimony of the two state witnesses casts doubt on the credibility of the witnesses.

The credibility of witnesses is for the trial court to determine, and if there is substantial evidence to support the verdict we affirm. Milburn v. State, 262 Ark. 267, 555 S.W. 2d 946 (1977).

The conflict in evidence to which appellant refers did not relate to a material issue in the case.

Appellant contends the evidence is insufficient to support the verdicts on the other two charges because only the testimony of Officer Fulks of the Little Rock Police Department and the State Crime Lab Chemist was presented to establish the charges. The testimony was quite clear and detailed in establishing that appellant delivered controlled substances prohibited by § 82-2617 to the officer in return for money. A witness who was with the officer on each occasion was not called to testify. There is no indication the testimony of the witness not produced would be anything other than cumulative. It was held in Parker v. State, 265 Ark. 315, 578 S.W. 2d 206 (1979), that where there is no such indication there is no presumption or inference the testimony of the witness not called would be adverse to the state, and the state is not obligated to present cumulative evidence.

The appellant offered no evidence, and we find there was substantial evidence to support the verdicts on each count.

Affirmed.


author: M. Steele Hays, Judge.

text:
    Etta Edith TREADAWAY v. RICELAND FOODS
    CA 79-217
    594 S.W. 2d 861
    Court of Appeals of Arkansas
    Opinion delivered February 20, 1980
    Released for publication March 12, 1980

      Anthony W. Bartels, for appellant.

      Penix, Penix & Mixon, for appellee.
   M. Steele Hays, Judge.

This is a claim for death benefits under the Workers’ Compensation Act brought by the widow of an employee of Riceland Foods who dies on April 19, 1976, having had a history of heart disease. The death certificate attributed death to: a) organic heart disease and b) acute myocardial infarction. On March 22, 1976, the decedent, appellant’s spouse, was unloading bags of rice and moving them on a “two-wheeler.” During the afternoon he felt ill and rested for perhaps thirty minutes, declining the suggestion of others that he leave work and see a doctor. That evening the decedent consulted his physician, Dr. Floyd A. Smith, whose records reflected that he saw the decedent for an office visit on March 22, complaining of pain in chest and arms. Dr. Smith made an appointment for the decedent with Dr. Guinn in Jonesboro for March 25, where he was seen by Dr. Guinn’s associate, Dr. Whittington, and on March 26 by Dr. Guinn. EKG’s were performed and on both occasions with normal results. Decedent was diagnosed as having Ischemic heart disease due to coronary artherosclerosis. Medication was prescribed and decedent was sent home. He returned on April 2, still experiencing chest pain and shortness of breath on exertion. On April 17, decedent was admitted to the hospital as a result of chest pain and on April 19, he expired.

The Administrative Law Judge and the Full Commission denied death benefits upon a finding that there was no medical evidence which attributed either the decedent’s illness or his death to his work, and pointing to a letter from Dr. Floyd A. Smith dated July 6, 1977, which contained the following excerpt:

“Enclosed is a copy of my letter to an attorney in Jonesboro concerning Mr. Hugh Treadaway, deceased. This patient gave a history of angina, but his primary reason for the visit to my office was to be referred to another physician for hospitalization. Although he was not examined at the time of his visit, my impression was that he did have angina. However, I could not see how his illness could be classified as work related.” (Emphasis supplied)

The claimant asks us to reverse the Commission and hold that the death of the decedent was the result of the work he was engaged in on March 22, notwithstanding the fact that the only medical evidence in the record is to the contrary. To grant claimant’s supplication would require that we find substantial evidence where none exists and ignore evidence to the contrary that does exist. This we are unwilling to do. The law is clear — we must affirm the Commission if its findings are supported by substantial evidence, as they are said to have strong probative force, the same binding force as a jury verdict. American Casualty Co. v. Jones, 224 Ark. 731; Independent Stave Co. v. Fulton, 251 Ark. 1086; McGregor & Pickett v. Arrington, 206 Ark. 921.

Claimant cites the case of Kostamo v. Marquette Iron Mining Co., 274 N.W.2d 411 (Mich. 1979) as holding that “a claimant need establish causality only by preponderance of the evidence and that a medical testimony is not a prerequisite to a prima facie case for Workers’ Compensation. . . . ” We agree with the position taken by the court in Kostamo, but we do not find that the decision stands for the proposition claimant says it does. In the first place, the claimant did in fact offer medical evidence in support of the claim, as the opinion recites that a Dr. English testified in behalf of claimant. What the case does hold is that lay evidence of stress in heart cases may not be ignored, in effect, by giving preclusive weight to medical opinion. We agree. But there is nothing in the record before us from which we could conclude that that is what happened here. As a matter of fact, in addition to the absence of medical support, claimant’s lay evidence was virtually nonexistent relative to the stress factors which the court adverted to in the Kostamo case: “The stresses that may cause (heart) attacks include: anxiety, anger, fear, exhilaration, fatigue and environment (air, heat, cold).” The testimony on behalf of claimant in the present case produced none of these stresses, as the evidence was that the day of decedent’s onset (March 22) was not hot, the working area was spacious, the men were working at a leisurely pace, had not been working overtime, were engaged in “day-to-day” routine, moving “small” rice bags on to a two-wheeler which required only slight lifting. In short, there was an absence of either lay or medical evidence to bring this case within the bounds of the Kostamo case.

The fact is that in order to do what appellant-claimant asks us to do, we would be required to hold that a worker who experiences chest pain while engaged in his employment duties and who later collapses from heart disease is entitled to compensation as a matter of law. None of the cases cited throughout appellant’s brief stands for such a proposition and our own research fails to turn up a decision which goes to this extreme.

Appellant also insists that the Administrative Law Judge erred in not allowing proffered evidence from an expert as to the causation of the heart attack. But we find no merit in this argument.

At the close of claimant’s case, counsel for claimant advised the Administrative Law Judge that he had intended to call a Dr. Shepherd to interpret claimant’s charts and medical records, but that Dr. Shepherd was out of town, proposing that the record remain open. Counsel for respondent objected, to which counsel for claimant replied:

“I would be happy to settle for a written report from one of the three treating doctors, either Clopton, Burns, or Guinn . . . . ”

The Administrative Law Judge then ruled that the record would remain open for thirty days for a report from one of the treating physicians. Counsel for claimant offered no objection to this ruling, nor did he raise any objection on this point before the Full Commission. Additionally, the report from one of the treating physicians was never offered, nor was a proffer of Dr. Shepherd’s testimony ever made either to the Administrative Law Judge or to the Full Commission and in view of counsel’s failure to comply with Rule 14 of the Rules of the Workers’ Compensation Commission, a remand of the case on these circumstances would not possibly be warranted.

Affirmed.

Penix, J., not participating.


author: James H. Pilkinton, Judge. Marian F. Penix, Judge, David Newbern, Judge,

text:
    Dessie BOSWELL, Widow and James BOSWELL, Minor Child of George BOSWELL, Deceased Employee v. Elmer DAVIS and ROCKWOOD INSURANCE COMPANY
    CA 79-253
    595 S.W. 2d 942
    Court of Appeals of Arkansas
    Opinion delivered February 20, 1980
    Released for publication March 26, 1980

      Eugene Hunt, for appellants.

      Shackleford, Shackleford & Phillips, P.A. for appellees.
   James H. Pilkinton, Judge.

This is a workers’ compensation case. A claim for dependency benefits was filed by appellants, the widow and child of the decedent. Appellants took the position that the death of Mr. Boswell, who died on May 16, 1977, was related to a compensable injury which he had sustained on August 23, 1976. Appellee denied that the death of decedent was compensable within the meaning of the Arkansas Workers’ Compensation Act. A hearing was held before an Administrative Law Judge, and subsequently the deposition of a Dr. Bill Stewart, a thoracic surgeon, was taken and made a part of the record. The ultimate opinion expressed by Dr. Stewart was contrary to all other medical evidence, and contrary to his initial opinion, and prior statements, he had made and which were in evidence. Subsequently the Workers’ Compensation Commission entered its opinion finding that the claims of appellants should be denied on the ground that they had not met their burden of proof in establishing that the decedent, George Boswell, sustained an accidental injury arising out of and in the course of his employment which resulted in his death. Appellants have appealed from that determination by the Commission.

We find no substantial evidence to support the Commission’s determination.

The sole issue before this court is whether the retrospective conclusion of Dr. Bill Stewart, unsupported by lab reports (and contradicted by all the other evidence, including his own prior statements) that Mr. Boswell’s cyst was not traumatic in nature, constituted substantial evidence under the law. We hold that it did not, and that this case must be reversed and remanded.

The decedent had been employed by Elmer Davis Logging Company for about eight years. He was a good workman, and had not lost any time from work due to illnes in more than 18 years prior to the accident. Mr. Boswell was a loader operator and on the day of his injury was loading logs. A fellow worker saw that a tree six to eight inches in diameter was about to hit Mr. Boswell and attempted to warn him, but Mr. Boswell didn’t see it in time. The tree hit Mr. Boswell right in the face and knocked him off the loader. He fell backwards, off the rear of the loader, and tumbled off a little step. When Mr. Bobby C. Wheeler, the co-worker, reached him, Mr. Boswell was lying on the ground. Mr. Wheeler sent for help and then took the injured man to the doctor. The accident occurred on August 23, 1976. The injury was recognized as compensable, and decedent was paid temporary total disability compensation from that time until his death.

The record shows that Mr. Boswell had been married to Mrs. Dessie Boswell for 29 years. They were the parents of five children, but all were adults except the youngest son, James, who is in the ninth grade. Mrs. Boswell and her son were totally dependent upon decedent for support. They are now trying to live on Social Security benefits and have no other income. Mrs. Boswell said that her husband had diabetes, but it was controlled and he never took off from work. When the accident occurred, Mr. Boswell was taken to the Bradley County Hospital, and was attended by the family physician, Dr. Marsh.

After discharge from the hospital, and until his death, Mr. Boswell complained about his back and right side. His wife said he could not be turned on his right side due to pain; and that he could not stand for anyone to touch his right side. He constantly complained of pain a few inches beneath his armpit. The evidence is undisputed that Mr. Boswell would cough blood which would be expelled both from his mouth and nose. After the injury he could not bathe himself, and could not sit at the table. His wife attended to all his personal needs. He never was able to work again.

Mr. Boswell lost weight continuously from the time of his injury until he died. He wore a back brace and used a cane in his left hand. He could not hold the cane in his right hand. Sores broke out on his right side and on the lower part of his body before he died. There were no sores on the left side of his body. Dr. Marsh admitted Mr. Boswell to the Bradley County Hospital five days before he died. On recommendation of Dr. Marsh, he was transferred to a hospital in Little Rock one day before his death.

The discharge summary from Bradley County Memorial Hospital September 9, 1976, reads in material part as follows:

Patient was admitted to the hospital with injury to his head and chest. He began having rather severe chest pain soon after admission . . . repeat chest X-rays showed a cavitation in the right upper lobe and disturbance at the sixth thoracic vertebra. . . He is transferred to Dr. Stewart for evaluations of his chest problem . . .

The discharge summary authored by Dr. Bill Stewart dated September 9, 1976, disclosed the following relevant portions:

... A definitive diagnosis was not made on the cavity but it was felt that it represented a traumatic cavity in the right lung in as much as it was situated directly beneath a chest wall injury, there was tenderness in the chest wall . . .

The Medical Report from William Steele, M.D., to Bill Stewart, M.D., September 20, 1976, discloses:

“It was felt that the wedging of the thoracic was fresh and due to the incident of trauma and not to another process ...”

The Medical Report of Dr. Bill Stewart dated October 13, 1976, relates the decedent’s chest condition as:

“. . . The chest still demonstrated the cavitary appearing lesion in the right mid lateral lung but the walls are much thinner and it appears that this is probably resolving.”

The Medical Report of J. W. Marsh, M.D., on November 12, 1976, reported the following:

“ . . . Regarding his chest wall injury. He was found to have a traumatic cyst of lung ...”

Bill Stewart, M.D. reported on February 7, 1977, the following:

“ ... I do not hear anything in his chest, but X-rays show the sizable infiltrate in the right mid lung ...”

The discharge summary of Bill Stewart, M.D. on February 21, 1977, reported, inter alia:

“Patient wás hospitalized 5 months ago because of cavitary appearing lesion in the right mid lung ... he has some cough and some sputum ...”

On August 25, 1977, three months after the death of Mr. Boswell, Dr. Bill Stewart reversed his opinion and wrote a discharge summary saying that “the patient seems to have fungal disease ...”

The medical evidence in the record clearly shows that it was the belief and opinion of Dr. Marsh, Dr. Stewart and Dr. Steele, from the outset, that the cavitary lesion in the right lung of the decedent was due to the incident of trauma that occurred August 23, 1976. This conclusion, held by all of the doctors who saw and treated Mr. Boswell during his lifetime, was finally contradicted by Dr. Bill Stewart three months after Mr. Boswell’s death without anything, but his bare opinion, to back it up. His only explanation for his apparent contradiction with all other medical testimony, including his own prior opinions, was “this is a changing of my opinion simply because it did not work out the way I thought a traumatic cavity should”. Dr. Stewart admitted that laboratory work and cultures done did not support his latest theory. He was frank to say he did not know what caused Mr. Boswell’s death. We are persuaded that Dr. Stewart’s late conclusion, which was the only medical or other evidence in the record to contradict the “traumatic cyst” hypothesis, is based upon sheer speculation. Dr. Stewart admitted in his deposition that nothing was found to support his new conclusion.

Larson’s Workmen’s Compensation Law, Vol. I, Sec. 13:00, states in part:

“When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment ...”
Sec. 13:11 of Larson’s, supra, provides, inter alia:
“. . . once the work connected character of an injury. . . has been established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent non industrial cause ...”

Our Supreme Court set out one of the policy considerations underlying the Arkansas Workers’ Compensation Act and stated in Purdy v. Livingston, 262 Ark. 575, 559 S.W. 2d 24 (1977), “In viewing the statute, we must construe, interpret and apply it broadly and liberally in favor of the Claimant . . . The public has an interest in minimizing the risk of an injured employee becoming the object of public charity or public relief.”

Floyd Eddington v. City Electric Company, 237 Ark. 804, 376 S.W. 2d 550 (1964) seems to throw light on the pivotal issue in this case, where it is stated:

“. . .It appears there is no positive medical evidence that Claimant’s present condition was not caused ... by his injury. Giving the greatest possible weight to the doctor’s testimony, it only proves they do not know what caused Claimant’s present physical condition. That being the situation, we think this case is controlled by Hall v. Pittman Construction Company, 235 Ark. 104, 357 S.W. 2d 263, where we said, Tf the Claimant’s disability arises after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the Commission’s refusal to make an award.’ ”

The foregoing guidance finds ready application to the facts of this case. The peculiar meshing of the lay testimony in this record and the medical evidence demonstrates that appellants did meet their burden of proof.

This Court recently considered the wisdom of a holding in a Rhode Island case after a review of relevant Arkansas Law in deciding American Can Co. v. McConnell, 266 Ark. 741, 587 S.W. 2d 583 (Ark. App. 1979), and said:

. . . soon after an accident and at the very place where the force was applied and with symptoms observable to the ordinary person, there arises, in the absence of believed testimony to the contrary, a natural inference that the injury, whatever may be the medical name, was a result of the employment.”

Appellants argue a second point in which we find no merit; however, for the reasons already discussed, this case must be reversed and remanded inasmuch as we find , that appellants are entitled to death benefits as dependents of the deceased worker as provided by the Arkansas Workers’ Compensation law.

Reversed and remanded.

Newbern and Penix, JJ., dissent.

Marian F. Penix, Judge,

dissenting. We might argue, with some merit, that six Court of Appeals judges can better decide a Workers’ Compensation case de novo exclusively from a cold, typed record than can three Commissioners.

The legislature might well investigate the law that provides for an Administrative Law Judge, trained in the law, to hear live witnesses plus some depositions and reports and then render a decision in a Workers’ Compensation case. However, the Administrative Judge’s decision, when appealed, goes on to three Commissioners — one lawyer and two laymen. They decide the case de novo and their findings take on the high dignity of a jury verdict — reversible by us only for an absence of substantial evidence. Ark. Stat. Ann. 1947 (1979) Repl.) § 81-1325. But, we were not appointed by the Governor to make laws, only to construe those which have been made. We are restricted to viewing the evidence in a light most favorable to the Commission’s findings and to drawing all reasonable inferences in that light. We do not have the privilege of deciding whether the testimony would have supported contrary findings, but, rather whether the evidence supports the findings made by the Commissioners. Where medical testimony is conflicting, the resolution of that conflict is a fact for the Workers’ Compensation Commission. Purdy v. Livingston, 262 Ark. 575, 559, S.W. 2d 24 (1977); Barksdale Lumber Co. v. McAnally, 262 Ark. 375, 557 S.W. 2d 868 (1977).

In the words of the present Chief Justice of our Supreme Court “ ... we must continue to determine whether reasonable minds could reach the conclusion reached by the Commission, not whether the evidence would have supported another conclusion, or even whether the preponderance indicated a different result.” Oak Law Farms v. Payne, 251 Ark. 674, 474 S.W. 2d 408 (1972).

There is substantial evidence in this case to support the Commission’s findings.

I respectfully dissent.

David Newbern, Judge,

dissenting. The majority seems to say Dr. Stewart’s opinion should not be considered substantial evidence because he changed his mind. His testimony was that he had not reached a final diagnosis of traumatic cyst because the laboratory work was not in. His tentative diagnosis was that the cyst was trauma related. When he saw that the cyst did not improve, as in his medical opinion it should have, and when he saw that a second cyst developed, he realized these were not caused by the injury.

I think that, had I been the trier of fact in this case, I would have held the preponderance of the evidence favored the claimant. But as the majority recognizes, the job of this court is to determine if the result reached by the commission is supported by substantial evidence. I certainly agree with the conclusion we reached in the case of American Can Co. v. McConnell, 587 S.W. 2d 583 (Ark. App. 1979), however, it must be remembered that there we affirmed the commission’s decision in favor of the claimant. I would cite that very case in an opinion affirming the commission here, as I believe Dr. Stewart’s testimony, despite the fact he changed his tentative conclusion in the process of reaching his final one, constituted substantial evidence.


author: James H. Pilkinton, Judge. James H. Pilkinton, Judge.

text:
    CONTINENTAL INSURANCE COMPANY et al v. Mary Lou RICHARD, Administratrix of the Estate of Frank V. RICHARD, Deceased
    CA 79-259
    596 S.W. 2d 332
    Court of Appeals of Arkansas
    Opinion delivered February 20, 1980
    Rehearing Denied March 19, 1980
    Supplemental Opinion on Denial of Rehearing delivered March 19, 1980
    Petition for Review Denied March 24, 1980
    Released for Publication March 26, 1980

      Chester C. Lowe, Jr., for appellants.

      Shackleford, Shackleford & Phillips, P.A. for appellee.
   James H. Pilkinton, Judge.

This is an appeal by the Continental Insurance Company and The El Dorado Hunting Club, Inc., from a decision of the Arkansas Workers’ Compensation Commission which found that Frank V. Richard sustained a work related accidental injury arising out of and in the course of his employment with El Dorado Hunting Club. The Commission also determined that the estate of Frank V. Richard, deceased, was entitled to reimbursement for certain medical and funeral expenses, and that Mary Lou Richard, as guardian of the person and estate of his minor son, was entitled to receive dependency benefits for the child. Appellants question the findings and awards made by the Commission.

I

Appellants first argue that the evidence is insufficient to support the finding by the Commission that the injury and death of Frank V. Richard arose out of and in the course of his employment with The El Dorado Hunting Club.

Frank V. Richard and Mary Lou Richard were married in Las Vegas, Nevada, in 1960. In 1966 Frank Richard purchased equipment and merchandise of a business known as the Embers Steak House in El Dorado, Arkansas. He leased the premises from one Ira Craig. Frank and Mary moved to El Dorado and operated the restaurant. Unfortunately, the restaurant did not do well financially.

In 1966, a nonprofit corporation known as The El Dorado Hunting Club was chartered. In 1971, the incorporators transferred their charter to Frank and Mary Richard. Frank and Mary Richard solicited membership in the club, and obtained over one hundred dues-paying members. Amended Articles of Incorporation were filed with the Secretary of State, and Frank Richard, William Richard and Mary Richard were elected to the Board of Directors of the corporation. At a meeting of the Board of Directors, Frank Richard was appointed General Manager of the corporation at a salary of $350.00 per month. In addition, the Board allowed Frank Richard to reside on the premises and take his meals there. It is undisputed that this had a value of an additional $350.00 per month, making Frank Richard’s salary from the corporation $700.00 per month. Frank Richard leased certain personal property and equipment to the corporation and subleased to the corporation the premises he had under lease from Ira Craig.

Frank Richard and Mary Richard were divorced and Frank Richard remarried. Prior to his death, Frank Richard had divorced his second wife; and thereafter Mary Richard again became a director of the corporation and also an employee thereof.

The duties of Frank Richard embraced bartending, purchasing food and liquor, hiring and firing of other employees and general managerial duties.

On October 16, 1976, Frank Richard was assaulted by an intoxicated member of The El Dorado Hunting Club, Inc., whom he had ejected from the premises. As a result of the assault Frank Richard died on October 18, 1976.

The court on appeal is required to review the evidence in the light most favorable to the findings of the Commission, and give the testimony its strongest probative value in favor of the order of the Arkansas Workers’ Compensation Commission. The issue on appeal is not whether this court would have reached the same results as the Commission on this record, or whether the testimony would have supported a finding contrary to the one made; the question here is whether the evidence supports the findings which the Commission made. Herman Wilson Company v. Hughes, 245 Ark. 168, 431 S.W. 2d 487 (1968). When the Commission makes a finding of fact, that finding carries the weight of a jury conclusion. Taylor v. Plastics Research and Development Corp., 245 Ark. 638, 433 S.W. 2d 830 (1968). The decision of the Commission must stand if supported by substantial evidence. American Can Co. v. McConnell, 266 Ark. 741, 587 S.W. 2d 583 (Ark. App. 1979).

The sole basis for the argument of appellants that the appellee is not entitled to benefits is based upon a proposition that during the last three years of his life Frank Richard filed tax returns reflecting a sole proprietorship. As stated by the Workers’ Compensation Commission, this is a matter between the decedent’s estate and the Internal Revenue Service and not the Arkansas Workers’ Compensation Commission. An extremely similar argument was recently raised before the Arkansas Supreme Court, and such argument was rejected by it. Henry et al v. Goodwin et al, 266 Ark. 95, 583 S.W. 2d 29 (1979). In that case, Mrs. Goodwin conveyed real property to her niece (Mrs. Henry) pursuant to an agreement whereunder her niece would reconvey the property. The purpose of the arrangement was to make Mrs. Goodwin eligible for supplemental social security benefits. After the niece died, an action was commenced to determine ownership to the land by the heirs of the niece. The heirs argued that since Mrs. Goodwin apparently misrepresented her position (relative to ownership of any real property) to the Social Security Administration she became precluded from asserting her ownership to the land by estoppel or the clean hands doctrine. In rejecting this argument, the Supreme Court said:

Of course, what we say in this opinion is not binding upon the Social Security Administration, which is not a party to this case and may be in a position to recover whatever payments were made to Mrs. Goodwin. We cannot say, however, in balancing the equities, that Mrs. Goodwin’s conduct was so reprehensible that she should lose the property which she has apparently occupied as her home since 1913.

In the case at bar, as in the Henry case, supra, the issue becomes whether the action of Mr. Richard in filing an erroneous tax return would preclude his dependent from workers’ compensation benefits. It might in some circumstances, but in this case, as in the Henry case, supra, the record does not disclose the applicable regulations. The record also does not disclose the reasons for Mr. Richard’s filing the particular returns in the manner in which he did. The bare tax returns were introduced. It is conceivable that the particular filing was done at the insistence or upon the advice of an auditor or accountant, to take advantage of particular legal tax loopholes. We do not know why the filings were done in the way in which they were. We do know that the filings were prepared by a certified public accountant, William P. Cook. This is confirmed by his signature as the preparer. Certainly, there is no evidence that this Court could hold that Mr. Richard’s conduct was so reprehensible that his child should lose the workers’ compensation benefits to which he is otherwise entitled. In the face of the written contract of hire, the existence of the corporate entity which was the employer, and all the testimony in the record, the appellants assert in this Court that because of the filings with the IRS the minor child of the decedent should be denied benefits. This argument wilts under scrutiny.

Ark Stat. Ann. § 81-1302(a) (Repl. 1976) defines “employer” to be any individual, partnership, association or corporation carrying on any employment. There was introduced into the record Articles of Incorporation of The El Dorado Hunting Club, Inc., together with a certificate from the Secretary of State, State of Arkansas, that the articles and amended articles had been duly filed in such office. There is no dispute that Continental Insurance Company insured the employer, The El Dorado Hunting Club, Inc., within the meaning of the Arkansas Workers’ Compensation Act on the date of Mr. Richard’s death.

Ark. Stat. Ann. § 81-1302(b) of the Workers’ Compensation Act defines “employee” to be any person in the service of an employer under any contract of hire or apprenticeship, whether written or oral, expressed or implied. There was an expressed, written contract of hire which is contained in a corporate minute book, duly introduced into evidence, showing that the Board of Directors employed Frank Richard as General Manager.

It is true that Frank Richard was a corporate officer of the respondent employer. However, he was also a bartender, cook, door checker, bouncer, and supervisor of other employees. As stated by Professor Larson, when a corporate officer’s duties involve distinctly nonexecutive, nonsupervisory or even manual work, the compensation act should apply. Larson, Workmen’s Compensation, § 54.20, Corporate Officers. Professor Larson goes on to say, at the same section:

“With very little difficulty, the courts also extended coverage to corporate officers where their duties were of a supervisory character, such as those of foreman, superintendent of construction, superintendent of a department, and even, with near unanimity, a general manager, since these are all jobs that, in ordinary circumstances, would make the holder an employee. (Emphasis added.)

We find no merit in the first point argued by appellant that there is no substantial evidence to support the finding of employer-employee relationship in this case.

II

The appellants also argue that appellee has failed to prove that Craig Stephen Richard is entitled to benefits. The appellants cite Roach Mfg. Company v. Cole, 265 Ark. 908, 582 S.W. 2d 268 (1979) in their brief. That holding is against their position here.

The Roach case, supra, is squarely in point relative to this claim. To understand the Roach case, supra, however, a review of the applicable law is in order. Section 10 (Ark. Stat. Ann. § 81-1310) of the Act formerly provided that compensation for death of an employee shall be paid to those persons who were wholly dependent upon him. In the case of Chicago Mill and Lumber Company v. Smith, 228 Ark. 876, 310 S.W. 2d 803, the Arkansas Supreme Court held that although the child of the decedent was not receiving support from her father at all, nonetheless she was entitled to benefits. The Arkansas Supreme Court said:

“We believe the legislature used the term ‘wholly dependent’ in the sense of applying to those ordinarily recognized in law as dependents, and this would certainly include wife and children.”

The Supreme Court based its ruling in the Chicago Mill case, supra, upon a proposition that a father has a duty to support his minor children, and consequently the child becomes entitled to workers’ compensation benefits based upon this duty rather than based upon any actual support. At that time the legislature had defined a dependent to be a person “wholly dependent” upon the decedent.

In 1976 the legislature amended Section 10 to include the words “and actually”, making Section 10 read as follows:

“. . . compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon him . . . .”

The Roach case then construed the Act as now amended, using the words “and actually”. In the Roach case the child of the decedent father was not actually dependent upon him as the decedent father had not contributed to the child’s support during the eleven months the decedent fáther had been separated from the child’s mother. The Supreme Court reaffirmed its decision in the Chicago Mill Company case, supra, and stated that the test of “wholly dependent” was met by the duty of support. The “actual support” included and embraced “reasonable expectation of support”. The Supreme Court said in the Roach case, supra, that the child had a “reasonable expectation of support” notwithstanding the fact that her decedent father had not supported her since he had separated from her mother, a period of eleven months.

The case at bar is somewhat stronger than the Roach case, supra. In the case at bar there is undisputed testimony that the decedent regularly contributed to the support of his mentally deficient child. Since he did this, the test of “wholly dependent” is met with the definition in the Chicago Mill Company case, supra which was reaffirmed by the Roach case, supra. The test of “actual” dependency has been satisfied beyond the definition of the Roach case in that Frank Richard contributed to the support of his child and the child was “actually” dependent upon his father.

The Workers’ Compensation Act is highly remedial and is entitled to a liberal construction; it should be accorded a broad construction in doubtful cases resolved in favor of compensation. McGehee Hatchery v. Gunter, 237 Ark. 448, 373 S.W. 2d 401 (1963). The Act should be broadly and liberally construed, and doubtful cases resolved in favor of the claimant. Cummings v. United Motor Exchange, 236 Ark. 735, 368 S.W. 2d 82 (1963).

Supplemental opinion on denial of rehearing delivered March 19, 1980

We find substantial evidence to support the findings and awards of the Commission.

Affirmed.

James H. Pilkinton, Judge.

Under Point II of our original opinion we incorrectly referred to Section 15 [Ark. Stat. Ann. § 81-1315(c)], the statute being discussed, as Section 10 (Ark. Stat. Ann. § 81-1310) of the Arkansas Workers’ Compensation Act. One purpose of this supplemental opinion is to correct this citation.

Since our initial opinion, the Arkansas Supreme Court has provided further clarification of Ark. Stat. Ann. § 81-1315(c) (Repl. 1976) in the case of Doyle’s Concrete Finishers et al v. Moppin, Guardian, et al, 268 Ark. 167, 594, S.W. 2d 243 (1980). We are fully aware of the holding in Doyle’s Concrete Finishers that the dependency of a minor child is no longer a conclusive presumption in workers’ compensation cases. However, the recent decision in the Doyle case, supra, does not call for a change in the result of the case before us. Here the Commission found that the child, Craig Richard, was dependent upon his father, Frank Richard. There was uncontroverted testimony that the deceased father contributed to the support of his son although the parents were divorced and the child was in the custody of the mother.

As pointed out in our original opinion, we find substantial evidence to support the findings and award of the' Commission; therefore, we adhere to our holding affirming this case.

Rehearing denied.


author: George Howard, Jr., Judge. Marian F. Penix, Judge, David Newbern, Judge,

text:
    Norma Sue WATSON v. CONWAY MEMORIAL HOSPITAL
    CA 79-244
    595 S.W. 2d 946
    Court of Appeals of Arkansas
    Opinion delivered February 20, 1980
    Released for Publication March 26, 1980

      Paul F. Henson, for appellant.

      Laser, Sharp, Haley, Young & Huckabay, for appellee.
   George Howard, Jr., Judge.

The question submitted for resolution is whether the Workers’ Compensation Commission’s finding that appellant’s cerebral vascular condition was not related to her compensable injury of February 20, 1976, is supported by substantial evidence.

It is undisputed that on February 20, 1976, appellant, while in the course of her employment, sustained an injury to her left knee while attempting to move a desk in the surgery department of the Conway Memorial Hospital. Dr. John Smith, a Conway physician, was immediately summoned to render medical assistance to the claimant. Dr. Smith prescribed Talwin as a pain medication. Three days later, while still in pain and on crutches, claimant consulted her family physician, Dr. Bob Bannister. Dr. Bannister immediately referred claimant to Dr. Leighton Millard, a Little Rock orthopedic surgeon. Dr. Millard concluded that claimant had sustained a torn cartilage in her knee joint and recommended surgery.

A few days after surgery, appellant experienced double vision, difficulty in focusing on objects, slurred speech, in-coordination, her tongue and throat felt paralized, could not sit up, nor hold her head up, could not walk, could not control her facial expressions, realized difficulty in lifting her arms, developed shortness of breach and could not feed herself. Emotional problems encountered by the claimant may be briefly characterized as crying and laughing hysterically.

Dr. Millard concluded that claimant had suffered a cerebral vascular accident and referred claimant to Dr. Robert Galbraith, a Little Rock neurologist.

The Commission, in a split decision, found that the claimant failed to prove by a preponderance of the evidence that the cerebral vascular accident was related to her compensable injury. This finding is predicated upon the opinion of Dr. Thomas M. Fletcher, a Little Rock neurosurgeon, who examined claimant, at the request of appellee-respondent, approximately one year after claimant sustained her injury. Dr. Fletcher’s opinion may be briefly summarized by quoting from his medical report of February 28, 1977:

“After examining this patient and reviewing the history notes and examination of the hospitalization at Baptist Hospital from February 29,1976 to March 16,1976, it is my opinion that the neurological impairment that she sustained very likely was due to cerebral embolism possibly related to her thrombophlebitis, although this has not been definitely confirmed, it would appear to be the most likely probability.” (Emphasis added)

We believe an analysis of Dr. Fletcher’s opinion within the context of relevant factual matters demonstrates the hollowness of Dr. Fletcher’s theory of the cause of claimant’s cerebral vascular accident. We are persuaded that the dissenting opinion of one of the Commissioners illustrates the insubstantiality of Dr. Fletcher’s report and, accordingly, we quote from a portion of this opinion:

“The one overriding factor that the majority ignores in this case is the exact time relationship between the surgery required by the injury and the numerous symptons experienced by the claimant immediately after the surgery.
Despite the fact that the medical evidence of record evinces equal support for the two most probable causative factors (i.e., (1) the injury and/or surgery to correct the injury and (2) a condition of thrombophlebitis, the only evidence of which was of a questionable nature) the majority chose to select the factor separated by a time element of one year, rather than the factor having an immediate time relationship.
“Claimant had never, before the surgery, experienced such things as double vision, dizziness, speech difficulties, loss of muscle tone, shortness of breath, and, as described by Dr. Galbraith, a ‘labile emotional problem’ that did ‘reflect frontal lobe injury.’ Yet, immediately after regaining consciousness from surgery, claimant began to experience these symptoms. Only Dr. Fletcher places more emphasis on the supported thrombophlebitis condition of one year earlier as the more likely cause of claimant’s condition after surgery, and the majority’s decision obviously relied upon Dr. Fletcher’s opinion as a basis for denying this claim. Yet, the existence of a thrombophlebitic condition one year before claimant’s ‘cerebral vascular accident’ was never conclusively established, thereby creating even more question as to the value of Dr. Fletcher’s conclusion. This is indicated by Dr. Fletcher’s deposition at page 12 where the following testimony appears with reference to a report which Dr. Fletcher had read from claimant’s personal physician of one year earlier:
‘Well, I think the fact that he placed her on anticoagulants would be a strong implication that he thought she did have a thrombophlebitis in October . . .’ (Emphasis added)
“It should suffice to say, even though additional diagnostic testing might have assisted in arriving at a more definite conclusion, that the physicians were unanimous, in their feeling that the claimant’s post-surgery symptoms and clinical findings were consistent with a classical type of cerebral vascular accident.
“Further, and of even greater significance than Dr. Fletcher’s supposition concerning pre-existing thrombophlebitis, is the fact that Dr. Millard, who performed claimant’s surgery, after which the above described symptoms arrived, stated that there was ‘mo evidence of thrombophlebitis’ (emphasis added) during the period of his treatment of the claimant.”
Dr. Millard testified on direct examination:
Q. On April 22,1976, Doctor, I believe you wrote a letter to Mr. Hill, (insurance adjuster) and on that date you expressed an opinion as to the cause of her entire problem.
A. Yes, sir, I did. I felt at that time and still feel that the problem was related to the straining injury that she had at work.
Dr. Fletcher testified on cross-examination:
Q. Doctor, is it your opinion that the injury of Mrs. Watson sustained on February 20, 1976, could have precipitated or have a triggering effect on her thrombophlebitis condition?
A. It’s possible that it could—that it could aggravate it or make it apparent or by the stress of the stretching out the leg, that it could cause a sudden pain.
Q. Do you have an opinion as to whether or not, or as to whether the cerebral embolism occurred subsequent to the February 20, 1976, injury?
A. The February 20th was the date that she hurt her knee.
Q. Yes, sir. She was working at the time.
A. Well, I do not believe that—I mean, I would think that it would have occurred after that time, sometime after that time.
Q. And the resulting symptoms which you’ve described would also, of course, have occurred after February 20, 1976?
A. Yes, because Dr. Bannister doesn’t mention them in his letter as being noticed at that time.

It is settled law that a decision of the Workers’ Compensation Commission will be affirmed if there is substantial evidence to support it. On the other hand, if the evidence falls short of substantiality, appellate courts are duty bound to reverse. What constitutes substantial evidence is a question of law. Boyd Excelsior Fuel Co. v. McKown, 226 Ark. 174, 288 S.W. 2d 614 (1956); Cummings v. United Motor Exchange, 236 Ark. 735, 368 S.W. 2d 82 (1963). After a careful examination of the record and applicable law, we are persuaded that the Commission’s holding is not supported by substantial evidence.

It is universally recognized that our Workers’ Compensation Law should be liberally construed, as opposed to a strict interpretation, and that doubtful cases and all disputed evidence should be resolved in favor of the claimant. Boyd Excelsior Fuel Co. v. McKown, supra; Eddington v. City Electric Co., 237 Ark. 804, 376 S.W. 2d 550 (1964); Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976); Jacob Hart Seed Co. v. Thomas, 253 Ark. 176, 485 S.W. 2d 200 (1972); Southwestern Bell Telephone Co. v. Brown, 256 Ark. 54, 505 S.W. 2d 207 (1974). If this ruleof law has any meaning, force or effect, it would, indeed, unduly tax the imagination to conceive of a circumstance requiring its application more so than in the instant case.

In American Can Co., Employer v. Charles McConnell, Employee, 266 Ark. 741, 587 S.W. 2d 583 (Ark. App. 1979), the Arkansas Court of Appeals made the following relevant observation regarding the necessity of conclusive medical evidence:

‘To appraise the true degree of indispensability which should be accorded medical testimony, it is first necessary to dispel the misconception that valid awards can stand only if accompanied by a definite medical diagnosis. True, in many instances, it may be impossible to form a judgment on the relation of the employment to the injury, or relation of the injury to the disability, without analyzing in medical terms what the injury or disease is. But this is not invariably so. In appropriate circumstances, awards may be made when medical evidence on these matters is inconclusive, indecisive, fragmentary or even nonexistent.’’ (Emphasis supplied)

While we are convinced that there is ample, competent medical evidence to establish a causal relationship between appellant’s knee injury and her cerebral vascular accident, it is plain that appellant sustained a compensable injury necessitating surgery to her left knee; and that she had never, prior to the surgery, experienced the numerous problems and difficulties detailed in this record.

Accordingly, the decision of the Arkansas Workers’ Compensation Commission is reversed and this cause is remanded to the Commission for further proceedings consistent with this opinion.

Newbern and Penix, JJ., dissent.

Marian F. Penix, Judge,

dissenting. For all of the reasons set forth in my dissent filed today in Boswell v. Davis & Rockwood Insurance Co., 268 Ark. 662, 595 S.W. 2d 942 (Ark. App. 1980), with regard to substantial evidence, I respectfully dissent from the majority opinion in this case.

David Newbern, Judge,

dissenting. The commission had ample substantial evidence upon which to conclude the injury and consequent surgery was not the cause of the stroke. The majority opinion of this court quotes extensively from the dissenting commissioner’s opinion which criticized Dr. Fletcher’s report. The commissioners’ job was to determine the preponderance of the evidence, whereas ours is to determine whether there was substantial evidence to support the commissioners’ determination.

I find no fault with the dissenting commissioner’s review of Dr. Fletcher’s report, but I regard it as irrelevant to our determination. I am more impressed with Dr. Fletcher’s testimony before the commission:

Q. Dr. Fletcher, assuming that we’re dealing with what you say in terms of the thrombophlebitis factors, is this something that would have occurred without the knee problem, the knee accident occurring?
A. Yes, sir, most probably.

He further stated it was more likely than not that the condition of the claimant was not caused by the accident and surgery.

I certainly agree with our decision in American Can Co. v. McConnell, 587 S.W. 2d 583 (Ark. App. 1979), and with the part emphasized by the majority opinion in this case. However, in that case we affirmed the commission’s determination in favor of a claimant even though medical evidence was inconclusive. I agree with the majority that there was ample substantial evidence to hold in favor of the claimant here. Had the commission done so, I would have voted to affirm. As it did not, I see only the substantial evidence question, and Dr. Fletcher’s testimony alone is sufficiently substantial for me to say the commission’s decision should be affirmed.


author: David Newbern, Judge.

text:
    Roy Edward DUCKETT and Vincent DUCKETT v. STATE of Arkansas
    CA CR 79-125
    600 S.W. 2d 18
    Court of Appeals of Arkansas
    Opinion delivered February 20, 1980
    Petition for Review denied March 24, 1980
    Petition for Rehearing denied March 26, 1980
    Petition for Stay of Mandate denied April 16, 1980
    Released for publication April 16, 1980

      Jimmy Eaton, for appellants.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

A question in this case is whether use of the prosecutor’s subpoena power to obtain the presence of a witness for questioning by a police officer, absent the prosecutor, is illegal. We hold that it is. Another question presented is whether incriminating evidence seized in a search to which consent was obtained from one of the appellants, was admissible in view of the fact that the search was instigated by information obtained through illegal questioning of a third party. The facts presented here show the evidence to have been “fruit of a poisonous tree” which was probably not sufficiently attenuated by the consent given for the search. However, we find we must affirm the convictions because of a matter not discussed in the parties’ briefs. The appellants have no standing to assert the illegality of the questioning of another person.

The appellants have asked us, as well, to say the court erred in refusing to give a requested instruction. We deal with that point summarily at the outset. Although the instruction was requested, the appellants’ lawyer admitted to the judge the instruction was inconsistent with the appellants’ defense. Thus, we cannot give serious consideration to the point as the request seems to have been withdrawn despite the fact that when the court announced its decision not to give the instruction the lawyer asked that his “exception” be saved, giving no reason. This point will not be discussed further.

A check for $5000, was written to Janis Hamilton on an Arkansas Power and Light Co. check form. It bore the forged signature of an A.P. & L. official. The money was deposited in a bank account in the name of Janis Hamilton. It was the only deposit ever placed in that Janis Hamilton account. Two checks in the amounts of $1100 and $3500, respectively, were written on that account. The one for $1100 to “cash” was endorsed by the appellant Vincent Duckett. The one for $3500, also to “cash,” showed no indorsement, but other evidence showed it was deposited to a bank account held in the name of Roy E. Duckett, who is the other appellant and Vincent Duckett’s brother.

After the $5000 check was discovered to be a forgery, the police investigation centered on the appellants because of their obvious relationship to the money resulting from their receipt of two large checks written on the Hamilton account. The investigation also fochsed on Rhunita Bryant, a former A.P. & L. employee, who had recently been fired for forging an A.P. & L. check.

A police officer prepared “prosecutor’s subpoenas” for the appellants and Ms. Bryant. The subpoenas were signed by a deputy prosecutor. The appellants appeared at the police station, as subpoenaed, on July 10, 1978, and were questioned by a police officer. They were, according to the officer’s testimony, not considered suspects after they were questioned. No prosecutor participated in the questioning.

Rhunita Bryant did not appear at the time required by the subpoena for her. The police officer then spoke with her father by phone, informing him of the subpoena. Her father said he would give her the message. The day after she was to have appeared in response to the subpoena, Rhunita Bryant called the officer and arranged a meeting at which she was questioned. As a result of this questioning and a subsequent affidavit Ms. Bryant executed, the officer knew a typewriter believed to have been used to type the forged check was in the possession of the appellants.

Based on Ms. Bryant’s affidavit, a search warrant was obtained to search the dwelling premises of the appellants. No typewriter was found there, but an A.P. & L. check made out to Toni M. Dobbins was found, and the appellants were arrested. After the arrest, Vincent Duckett consented to a search of a night club, apparently operated by the appelants, known as “The Rooster Tail Country Club.” It was there that a typewriter and cartridge-type ribbon were found which were ultimately identified as having been used to prepare the forged check.

The trial judge refused to suppress this evidence. He seemed to recognize the impropriety of using the prosecutor subpoena in a police investigation, but held that the interrogation of Ms. Bryant was as a result of her voluntary participation in the investigation.

I. Use of the Subpoenas

We have no hesitancy in agreeing with the appellants that the prosecutor subpoena authority has been sorely abused in this case. It is not necessary to go so far; as do the appellants, to say the prosecutor’s investigation is equivalent and in every way analogous to a grand jury investigation. Ark. Stat. Ann. § 43-801 (Repl. 1977), which as the basic statutory authority for use of the subpoena makes it clear the power is to be used only for a prosecutor’s investigation. Ark. R. Crim. P. 2.2 and 2.3 make it even clearer, for those rules prohibit the police from doing the very thing the subpoena is designed to do, i.e., coerce an appearance at an investigation.

Although we agree with the appellee’s strongest statement on this matter, which is to the effect that no Arkansas cases have held directly that the prosecutor’s subpoena may not be used in aid of a police investigation, the following cases indicate the concern of our supreme court and a federal court with the possibilities of abuse of this power and the need for strict construction and limitation of it: State, ex rel. Street v. Stell. 254 Ark. 656, 495 S.W. 2d 846 (1973); Gill v. State, 242 Ark. 797, 416 S.W. 2d 269 (1967); Taylor v. State, 220 Ark. 953, 251 S.W. 2d 588 (1952); Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark.) aff'd per curiam, 393 U.S. 14 (1968). See also, Hall, The Prosecutor’s Subpoena Power, 33 Ark. L. Rev. 122, 126 (1979).

We cannot understand the basis for the trial judge’s finding that the interrogation of Ms. Bryant was unrelated to the subpoena. The mere fact that she did not appear on the date commanded is hardly important when it is apparent she arranged to meet with an officer after being reminded of the subpoena through the officer’s conversation with her father.

II. Poisoned Fruit?

The questioning, both of the appellants and of Rhunita Bryant, was illegal, but the illegal questioning of the appellants led to no evidence which incriminated them. If it had, we would have a clear poisonous tree problem and would be faced with the question whether Vincent Duckett’s consent to the search so attenuated it as to detoxify the incriminating fruit. Analogizing to the cases which have dealt with this problem in its 4th amendment context, we might well have found the consent not sufficiently attenuating. See, e.g., U.S. v. Rubalcava-Montoya, 597 F. 2d 140 (9th Cir. 1978). Cf., U.S. v. Carsello, 578 F. 2d 199 (7th Cir. 1978), cert. den., 99 S. Ct. 565.

It was, however, the illegal questioning of Rhunita Bryant which led to the evidence incriminating the appellants. We find no Arkansas case which helps us directly on the question of whether the appellants had standing to raise the illegal questioning of Ms. Bryant as a basis of the motion to suppress the evidence to be used against them. In Fuller v. State, 246 Ark. 138, 437 S.W. 2d 780 (1969), our supreme court held that a person who was legally, by permission of the owner, on premises which were illegally searched had standing to move to suppress evidence obtained in that search, citing Jones v. U.S., 362 U.S. 257, 80 S. Ct. 725 (1960). Although our supreme court said an accused who is present has an “interest in the property” sufficient to afford him protection from illegal search, it seems the basis of the Jones decision was that the mere presence of a person on illegally searched premises gives him the right to complain as long as that presence is not unlawful. Regardless of the distinction there may be between the rationales of these cases, however, in both of them an illegal search affected directly the person who later complained of it. In the case before us, the illegal questioning of Rhunita Bryant was not in any way directly affective of any of the rights of the appellants.

Although Claifornia law, for example, would prohibit admission of evidence illegally obtained regardless of whose rights were violated, Kaplan v. Superior Court of Orange County, 6 Cal. 3d 159, 98 Cal. Rptr. 649, 491 P. 2d 1 (1971), we do not find it necessary to go that far.

In a case which arose in this state, U.S. v. Barber, 557 F. 2d 628 (8th Cir. 1977), the U.S. Eighth Circuit Court of Appeals dealt with a problem arising from an illegal arrest. Two persons were charged with a federal currency law violation. Evidence which was taken in connection with an illegal arrest was said to be inadmissible in the case of the person illegally arrested, but held admissible in the case of the other defendant. We find a strong analogy to the case before us, and we hold these appellants cannot complain that evidence used against them was obtained in violation of the rights of another person.

This opinion obviously could have been terser. We have dwelt upon the illegal use of the subpoena power because we regard the matter as very serious, and we hope we will never again have before us a case in which that power is so abused.

Affirmed.

       The appellant’s statement of the case inaccurately says the checks were made out, one each, to the appellants.


text:
    Willene FLOWERS et al v. SOUTHERN ROAD BUILDERS and BITUMINOUS INSURANCE COMPANY
    CA 79-309
    594 S.W. 2d 865
    Court of Appeals of Arkansas
    Opinion delivered February 27, 1980
    Released for publication March 19, 1980

      Ralph M. Cloar, Jr. and Charles E. Houston, Jr., Waiterboro, S.C., for appellants.

      Friday, Eldredge & Clark, by Frederick S. Ursery, for appellees.
   Ernie E. Wright, Chief Judge.

This is an appeal by the widow of Grady Flowers from a decision of the Workers’ Compensation Commission denying widow’s benefits.

The Commission awarded benefits to the three minor children of the deceased, and the only issue on appeal is whether the Commission erred in failing to award benefits to the widow on the ground the evidence failed to establish she was dependent upon the deceased at the time of his death.

At the time of Mr. Flowers’s death he and his wife had lived separate and apart for the preceding sixteen months during which time the deceased had provided no support to appellant and there was no contact between the parties. For the most of this period appellant lived in a house with another man who supported her. The appellant testified her husband told her before he left the home he was going to save up money and buy a new house on his return. There was no evidence corroborating the testimony of appellant. The decision of the Commission apparently discounted this testimony, and the rule is well settled that the testimony of an interested party will not be regarded as undisputed in determining the legal sufficiency of the evidence. Bridges v. Shapleigh Hardware Company, 186 Ark. 993, 57 S.W. 2d 405 (1933). Also, we cannot say the Commission erred if it considered such statement as having been made, but regarded it as falling short of establishing dependency.

In Roach Manufacturing Co. v. Cole, 265 Ark. 908, 582 S.W. 2d 268 (1979), the court held that when the legislature amended Ark. Stat. Ann. § 81-1315 in 1976 to provide compensation for the death of an employee under the Workers’ Compensation Law, would be payable only “to those persons who were wholly and actually dependent upon him”, by adding the word actually, intended to remove any conclusive presumption of dependency; and that where the widow is not living with her husband at the time of his death, there must be some showing of actual dependency.

In light of the undisputed evidence in the present case showing total lack of support of appellant by her husband for sixteen months immediately prior to his death and evidence she was being supported by another man, we conclude there is substantial evidence to support the finding of the Commission that dependency by appellant was not established.

Affirmed.


author: M. Steele Hays, Judge. Marian F. Penix, Judge,

text:
    Dorothy ALRED v. JACKSON ATLANTIC, INC.
    CA 79-313
    595 S.W. 2d 249
    Court of Appeals of Arkansas
    Opinion delivered February 27, 1980
    Released for publication March 19, 1980

      Henry J. Osterloh, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   M. Steele Hays, Judge.

This is a workers’ compensation case. Claimant, Dorothy Aired, suffered a compensable injury in July of 1970. This injury arose out of and in the course of her employment with the respondent, Jackson Atlantic, Inc. Claimant was awarded temporary total disability benefits and payment of all medical bills and 75% of all hospital costs. In addition, the Administrative Law Judge awarded all “reasonable future medical expenses”, recognizing a need of future medical treatment of the claimant. No appeal was taken from this judgment.

Claimant was initially treated by Dr. John Lohstoeter for her injuries. However, subsequent to the time, of the award, claimant began seeing Dr. C. G. Pearce. She continued seeing Dr. Pearce until July or August of 1976. The last payment made to Dr. Pearce by the respondent was August 11, 1976.

In March of 1978, claimant went back to see Dr. Lohstoeter because of pain in her leg and neck. According to Dr. Lohstoeter, claimant was found to have a “discal and inflammatory problem which was with an almost complete blockage of cerebral spinal fluid due to ruptured disc”. Surgery was recommended and performed in April of 1978. Medical and hospital bills related to the surgery were sent to the respondent. Respondent controverted all payments, alleging that the claim was barred by the statute of limitations set forth in Ark. Stat. Ann. § 81-1318 (b).

A hearing was held before the Administrative Law Judge on June 19, 1979. At the hearing, it was undisputed that drug payments were made by the respondent between the time that the last payment was made to Dr. Pearce and the time the present claim was made for surgery and related expenses. However, in an affidavit presented by the Insurance Administrator showing payments made by the respondent, the payments for medicine were not included. It was alleged that drug payments do not toll the statute of limitations in § 81-1318(c) as interpreted by the Arkansas Supreme Court in Mohawk Rubber Company v. Thompson, 265 Ark. 16 (1979). The Administrative Law Judge agreed with respondent and held that the claim was barred by the statute of limitations. The commission affirmed the holding of the Administrative Law Judge with one commissioner dissenting. Claimant now brings this appeal.

The issue before this court is whether payments for medicine by a respondent are considered “payment of compensation” for purposes of tolling the statute of limitations. This is not a case of first impression in Arkansas. Ark. Stat. Ann. § 1318(b) states:

In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one (1) year from the date of the last payment of compensation, or (2) years from the date of the injury, whichever is greater.

Hence, we must now determine whether payments for medicine come within the purview of “payment of compensation” as set forth in the statute. The Workers’ Compensation Act provides in Ark. Stat. Ann. § 81-1302(i):

‘Compensation’ means the money allowance payable to the employee or to his dependents, and includes the allowances provided for in [§ 81-1311], and funeral expenses.
Ark. Stat. Ann. § 81-1311 provides:
The employer shall promptly provide for an injured employee such medical, surgical, hospital, and nursing services, and medicine ... as may be reasonably necessary for the treatment of the injury received by the employee.

Hence, we conclude that payments for medicine are a part of “compensation” within the meaning of the Workers’ Compensation Act. The Arkansas Supreme Court has interpreted the act accordingly. Reynold Metals Company v. Brumley, 226 Ark. 388, 290 S.W. 2d 211 (1956); Ragan v. Great American Indemnity Company, 224 Ark. 387, 273 S.W. 2d 524 (1954).

Nevertheless, respondents contend that the 1968 Amendment to § 1318(b) changed the meaning of the statute to the extent that payment for medicine does not constitute “compensation”. The amendment to the statute added this sentence:

The time limitations of this subsection shall not apply to claims for replacement of medicine, crutches, artificial limbs and other apparatus permanently or indefinitely required as the result of a compensable injury, where the employer or carrier previously furnished such medical supplies.

We fail to see how this amendment to the statute altered the existing rule that payment for medicine is still considered “compensation” under the Act.

Respondent contends that the Arkansas Supreme Court interpreted the amendment to mean that “replacement of medicine, crutches, artificial limbs and other apparatus” will not toll the statute in the case of Mohawk Rubber Company v. Thompson, supra. In order to better understand the holding of Mohawk, the sequence of events should be set out:

August 31, 1971: Claimant’s foot was injured
August 24, 1972; Lump sum settlement
August 10, 1973: Claimant was seen by Dr. Chakalas and furnished a pair of orthopedic shoes
November 8, 1973: Carrier paid for shoes
December 13, 1973: Carrier paid Dr. Chakalas
August. 28, 1974: Claimant was furnished with a second pair of shoes
January 23, 1975: Carrier paid for the second pair
May 27, 1975: Present claim for additional benefits [extracted from 265 Ark. at 17]

First of all, the court held that the statute is tolled by the “actual furnishing of services”, and will not be tolled again when the services are paid for. Hence, the statute ran uninterrupted from August 10, 1973, to August 28, 1974, when claimant was furnished a second pair of shoes. The commission held that the furnishing of the second pair tolled the statute again. But the Arkansas Supreme Court reversed, holding that the statute had already run, and that because of the 1968 amendment, respondent would be liable for the cost of the orthopedic shoes, but this would not start a new period for purposes of the statute of limitations. The court specifically adverted to this point:

This case illustrates the beneficient purpose of the amendment, for without it this claimant would not have been able to obtain a second free pair of orthopedic shoes on August 28, 1974, because both the two-year and the one-year statutes had already run . . . The exception cannot fairly be broadened to mean, for example, that simply because a crutch furnished by the employer happens to break and need replacement ten years later, a new period of limitations should begin to run with regard to claims for surgery, permanent partial or total disability, and all the other benefits provided by the Act.

With this rule in mind, we can draw a distinction between Mohawk Rubber Company v. Thompson and the instant case. In Thompson, the statute of limitations had already run uninterrupted for a period over one year when the second pair of orthopedic shoes was furnished. Hence, although the respondent was liable under the 1968 amendment for the cost of the second pair of orthopedic shoes, it did not start a new period with respect to the statute of limitations.

In the instant case, there is evidence in the record to indicate that claimant may have been receiving medicine during the period in which respondent claims that the one year statute of limitations had run uninterrupted. For instance, a letter dated May 24, 1978, from respondent to Dr. Lohstoeter states:

Munford, Inc., is continuing under responsibility to provide medical benefits to Dorothy Aired as the result of July 3, 1970 injury. We, as you may know, are continuing to receive various hospital bills and bills from other suppliers for treatment to Mrs. Aired.

Also, claimant testified at the hearing that she was receiving medication for pain during the period in question. Finally, an affidavit by the Insurance Administrator reflecting various payments expressly stated that it was “exclusive” of any payments made for medication.

For the reasons stated above, we find that payments for medicine constitute “payment of compensation” within the meaning of Ark. Stat. Ann. § 81-1318(b). The Workers’ Compensation Act is highly remedial and is therefore entitled to a liberal construction. Mohawk Tire & Rubber Company v. Brider, 257 Ark. 587, 518 S.W. 2d 499 (1975); McGeehee Hatchery v. Gunter, 237 Ark. 448, 373 S.W. 2d 401 (1963). This holding does not mean that a claimant may toll the statute merely by refilling a prescription. The statute specifically says medication which is “reasonably necessary” for the injury suffered. What is considered “reasonably necessary” will depend on the facts and circumstances of each case.

Therefore, the case is reversed and remanded with directions to the commission to accept evidence of payments for medicine, to determine if such medicine was “reasonably necessary” for treatment of this injury, and, if so, to treat such services as “compensation”.

Reversed and remanded.

Penix, J., dissents.

Marian F. Penix, Judge,

dissenting. The last payment of “compensation” was made to Dr. C. G. Pearce on August 11, 1976. After this date the claimant received payment foe drugs. In March 1978 the claimant saw Dr. Lohstoeter ancl was operated on by him. More than one year had elapsed and the administrative Judge and the Commission found the payment of the medical bills arising from Dr. Lohstoeter’s surgery and treatment to be barred by the one (1) year Statute of Limitations.

The Commission found the drug payments made after August 11, 1976, do not toll the Statute of Limitations set forth in Ark. Stat. Ann. § 81-1318(b) as interpreted by the Arkansas Supreme Court in Mohawk Rubber Co. v. Thompson, 256 Ark. 16 (1979). The Court in Mohawk, supra, said:

. . . The scope of a reasonable and logical exception to the rule of limitations should not be extended beyond the defect that it was evidently designed to correct. Even a liberal construction of a statute must still be consistent with its basic intent.

The respondent paid for claimant’s “replacement of medicine”. Ark. Stat. Ann. § 81-1318(b). This did not toll the Statute.

In the Administrative Judge’s order of September 18, 1974, he provided: “The respondents shall pay for the claimant’s reasonable future medical expenses.” This language does not serve to allow future medical expenses ad infinitum. Such an order is not possible. The correct interpretation of Judge Rebsamen’s order is that the respondent is responsible for the payment of all reasonable future medical expenses provided claims are made within the time permitted by the Statute of Limitations.

The majority opinion attempts to change the law in Arkansas regarding the time frame within which compensation claims must be made.

I respectfully dissent.


author:
M. Steele Hays, Judge.
      Per Curiam.

text:
    Gary Lee HAYS v. STATE of Arkansas
    CA CR 79-136
    597 S.W. 2d 821
    Court of Appeals of Arkansas
    Opinion delivered February 27, 1980
    Supplemental Opinion on denial of rehearing April 9, 1980
    Review denied April 14, 1980
    Released for publication April 30, 1980

      Darrell W. Johnson, for appellant.

      Steve Clark, Atty. Gen., by Ray Hartenstein, Asst. Atty. Gen., for appellee.
   M. Steele Hays, Judge.

Appellant was charged and convicted of possession of five pounds of marijuana with intent to deliver in violation of Act 590 of 1971, “The Controlled Substances Act.” The jury imposed a fine of $3000.00 and a sentence of three years in the Department of Corrections. Appellant brings this appeal charging that numerous errors in the proceedings below demand reversal.

I

Appellant argues that the trial court erred in permitting the prosecuting attorney to mention in closing argument the detrimental effects of marijuana upon high school students, no evidence having been introduced in this regard. We find the argument to be unconvincing for more reasons than one. The comments are essentially the mere expression of an opinion and were not offered as statement of fact outside the record. We believe the jury would be discerning enough to recognize the difference, particularly in the light of the court’s instruction that the opening statements and closing arguments were not evidence and should not be regarded as such by the jury. Words of a similar import were argued to the jury in closing argument in Hall v. State, 264 Ark. 885, and approved by a majority:

In the final argument to the jury, the Prosecuting Attorney made reference to the deterioration of the community due to its young people injecting heroin into their bodies. Appellant pointed out that there was no evidence in the record to support such argument and moved for a mistrial. The trial court overruled the objection and appellant raises the same issue here. We find no merit to the contention for there is no error in arguing to the jury matters about which courts will take judicial notice . . .

Justice Fogleman, concurring, took some exception to the use of the term “judicial notice’ but agreed that it is not prejudicial for an attorney to make comments which are a matter of common and general knowledge. But, an added problem here is that no objection was raised and in the absence thereof, the point will not be considered on appeal. Rowland v. State, 263 Ark. 77.

II

Similarly, appellant argues that the trial court erred in permitting the Prosecuting Attorney to argue in closing that a co-defendant not on trial would spend three years in the penitentiary. Appellant relies on Jackson v. State, 215 Ark. 420, and Hammond v. State, 173 Ark. 674, as holding such comment to be reversible error. But again, no objection was offered and the point cannot be raised for the first time on appeal. Nor do the Jackson and Hammond cases deal with comment in closing argument, as stated. Rather, the error in these cases was in receiving evidence of the conviction of a co-defendant.

Clearly, this information, properly objected to, is not admissible evidence and, it follows, not suitable for closing argument. But in the case before us not only was no objection voiced but to some extent the comment was invited by the defense. After having introduced evidence showing that the three co-defendants, Pegues, Rodriguez and Foster were also charged with the same crime as appellant, counsel asked the jury to consider why they had waited around the courthouse all day to testify against the appellant, creating, we think, a veiled inference that justified some comment by the prosecution. If appellant felt that comment went too far, it was incumbent upon him to object. The point is that where no objection arises, the court is deprived of an opportunity to correct such inferences, and a party cannot wait for review to raise the issue.

Ill

Appellant next contends that it was error to permit a police officer, Mr. Yates, to “volunteer” information from the police intelligence files concerning appellant and to permit the Prosecuting Attorney to discuss the matter in closing argument. We disagree with appellant’s contention that this witness’ answer to a question was not responsive or was the result of “the most careful deliberation.” On the contrary, the answer complained of was directly responsive to the question framed to the witness:

BY MR. JOHNSON (T.P. 254);
Q: At that time you had no knowledge of Gary Hays, and your police informant had given you no name or address or telephone number of Gary Hays, is that true?
A: We had information about Gary Hays.

The question was a compound question, and the witness chose to answer the first párt dealing with whether he had, as a member of the narcotics squad, information about the appellant. The answer was not unresponsive and doesn’t appear to be “carefully deliberate”, particularly in view of the answer to a question just preceeding (TP. 254):

Q: You never ever had cause to charge him, you had not run across him at all, you haven’t run across his name have you.
A: Yes, we have

It is evident that counsel hoped to elicit from the prosecution’s own witness that appellant was unknown to the police engaged in narcotic intelligence, and risked the questions he did; the fact is the answers were responsive, although not those anticipated; and having been received as evidence it was not improper for either side to mention it in argument. Additionally, as there was no objection at trial, the error appellant now asserts will not be considered.

IV

Appellant filed motions in limine to preclude the introduction of taped conversations between a police informant, Joe Fiori, and a co-defendant, James Pegues, and urged the exclusion of these conversations at a pretrial hearing. The conversations took place on March 30 and April 5, 1978, and were primarily the discussion of a proposed purchase of five pounds of marijuana for a price of $675.00. Appellant was not named or identified, directly or indirectly, in the conversation — in fact the only words remotely suggesting the involvement of someone else are: (T. p. 230):

Fiori: . . . Fd like to do some business with you, you know.
Pegues: Well, it’s not up to me.

At the hearing on appellant’s motions in limine counsel strenuously objected to the introduction of the tapes, but the court ruled that they were admissible as to Pegues, a co-defendant, and did not implicate the appellant in any fashion. We think the ruling of the trial court was proper. The conversations were part of the prearrangements for the purchase of marijuana on April 6, which was the sale for which appellant was being tried and we find no error in receiving this evidence. It is perhaps inevitable that some circumstances or conversations preceeding prearranged drug purchases are likely to come before the jury and it is the responsibility of the trial court under Rule 404 and 403, Ark. Stat. Ann. § 28-1001, to weigh the probative value of the evidence against whatever prejudicial impact it may have. Here there was little of either in the content of the tapes and we think the court was justified in overruling the motions in limine and in receiving the tapes into evidence at trial, particularly in view of counsel stating “no objection” as each tape was offered in evidence.

Counsel argues that the tapes were hearsay, and we agree with him, in that they became objectionable as hearsay evidence after the codefendant, Pegues, was severed from the case; however, this objection should have been renewed at trial and the record at pages 224 and 228 make it clear that the tapes were not objected to.

V

Finally, appellant urges that it was error to permit the introduction of evidence of other marijuana sales by the appellant to show intent, motive, and design where appellant intended to take the stand and admit the fact of his possession of marijuana with intent to deliver. We need not reach the heart of this rather ingenious argument, for the reason that we are unable to agree that testimony of other sales by the appellant was in fact received in evidence. Officer Yates testified to the purchase of one pound of marijuana by Joe Fiori at the residence of James Pegues and Teresa Rodriguez at 2123 Churchill Street on two separate occasions, one on March 14 and another on March 23. However, there was no evidence, direct or circumstantial, linking the appellant to these sales and therefore, we do not consider the evidence to be analogous “to the other offenses” within the exclusionary rule.

Supplemental Opinion on Denial of Rehearing delivered April 9, 1980

We do not find, viewing this case overall, that there was prejudicial error mandating a reversal. In arriving at that conclusion we are swayed by the fact that the appellant not only admitted the offense with which he was charged, as well as the requisite intent, but he also admitted being the supplier of marijuana for at least five or six people over what seems an extended period of time. Appellant’s admission of guilt of the offense he was charged with largely removes the risk which was cited in Alford v. State, 223 Ark. 330, as the reason for the exclusion rule, i.e., the danger of an innocent defendant being convicted. A trial is, or should be, a search for the truth of the guilt or innocence of the accused, and not an exercise in legal theatrics to determine whether all the rules of evidence and procedure (with the many shades of gray) can be kept inviolate. Where guilt is assured from the accused’s own testimony in the form of a judicial confession, we think the scrutiny of appellate review should be relaxed at least where the penalty is within the law.

Appellant hoped, obviously, for a suspended sentence. The fine and sentence of three years does not strike us as unreasonable in the least, all things considered. There can be no assurance that simply because an accused has no previous record he is justified in thinking he was mistreated if not given a suspended sentence. Some are so fortunate but absolute uniformity in such matters has not, as yet, been realized.

Finding no prejudicial error, we affirm.

Per Curiam.

In its petition for rehearing, appellant argues that the original opinion clouds the rule that a party need not renew an objection to evidence at trial which has been objected to by a motion in limine. Appellant cites Bell v. State, 120 Ark. 530, which does not support the point. However, because appellee agrees, in part, with appellant’s argument, although not agreeing that the case should be reheard, the original opinion is clarified by pointing out that the decision did not turn on the issue of whether the objection is preserved throughout the trial by a motion in limine, but rather on the fact that the appellant plainly and unmistakable waived whatever earlier objection he had made by stating “no objection” in each instance when the tapes were introduced. When the first tape was offered the following occurred (p. 223):

MR. FILYAW:
Q. I will show you what has been marked as Plaintiffs Exhibit #4, which is a typewritten copy of a transcript of a conversation, and ask you to glance over that carefully and tell me if you are familiar with that?
A. Yes, sir, that’s the telephone conversation of March 30.
Q. Is that the transcript of the tape that you have there?
A. That’s correct.
Q. Well, is this correct with the conversation?
A. That’s correct.
Q. That is a correct and accurate transcript?
A. Yes, sir, it is.
MR. JOHNSON: No objection.
When the second tape was offered (p. 227):
MR. FILYAW:
Q. And I will show you Plaintiffs Exhibit #5, another transcript. Would you please read through that. Is that an accurate transcription of the conversation that day?
A. That’s correct.
Q. You did tape that?
A. Yes, I did.
Q. And you have that tape with you today?
A. Yes, sir, I do.
MR. JOHNSON: No objection.

Appellant cannot affirmatively remove his objection when evidence is offered at trial and seriously contend on appeal that reversible error has occurred.

Petition denied.