text:
    SALINE COUNTY BOARD OF EDUCATION and ARKANSAS DEPARTMENT OF EDUCATION v. HOT SPRING COUNTY BOARD OF EDUCATION and MAGNET COVE SCHOOL DISTRICT NO. 8
    80-144
    603 S.W. 2d 413
    Supreme Court of Arkansas
    Opinion delivered September 8, 1980

      Hall, Tucker, Lovell, Alsobrook & Moudy and Roger Giles, Asst. Atty. Gen., for appellants.

      Glover, Glover & Walthall, for appellees.
   Frank Holt, Justice.

Rural Dale School District No. 4, consisting of portions of Saline and Garland Counties, was administered by the Saline County Board of Education. Since Rural Dale failed to achieve an “A” rating before June 1, 1979, the Saline County Board of Education abolished the Rural Dale District, as required by the Quality Education Act, Act 229 of 1969, Ark. Stat. Ann. § 80-4601, et seq. (Repl. 1980). The Saline Board then ordered that most of the dissolved district be annexed to the contiguous Benton School District in Saline County. The remaining portion, all located in Garland County, was ordered annexed to the contiguous Magnet Cove School District No. 8 in Hot Spring County. Patrons in this smaller portion so petitioned. The Hot Spring County Board of Education and Magnet Cove School District objected and petitioned the circuit court of Hot Spring County for a writ of certiorari, contending the annexation as to Magnet Cove was void. That court found that the Saline County Board of Education had no authority to assign territory within its jurisdictional boundaries to any school district outside its jurisdictional boundaries and held the assignment to the Magnet Cove District was void. The Saline County Board of Education and the Arkansas Department of Education, which was permitted to intervene, appeal from this ruling.

The controlling issue on appeal involves an interpretation of the Quality Education Act, § 80-4601, et seq. Section 80-4602 provides that any public elementary or secondary school with a rating of less than “A” is to be eliminated by June 1, 1979. Any district operating such a school shall be dissolved and annexed to another district or districts in which all schools have at least an “A” rating. That statute then provides in pertinent part:

. . . The County Board of Education shall abolish said districts and shall annex the territory of such districts to the receiving district or districts in a geographically contiguous manner. The receiving district or districts shall be designated by the County Board of Education and said receiving district or districts are hereby mandated to accept such district or parts of districts.

Another section of the Act, § 80-4615, further provides in pertinent part in regard to administering the annexation:

If an independent school district having territory in more than one county is to be annexed under the provisions of this act [§§ 80-4601—80-4615], the county board of education in which the district is administered shall be responsible for such annexation or annexations, unless said county board voluntarily releases to another county board or boards territory within their counties for the purpose of the annexation of said territory to an eligible district within their legal jurisdiction. Such county boards, if they accept such territory, and acceptance or rejection shall be at their option, are hereby mandated to take action in keeping with the dissolution and annexation provisions of this act.

We agree with appellant that these statutes authorize the assignment made by the Saline County Board to the contiguous Magnet Cove District in Hot Spring County. The Quality Education Act indicates the legislature intended that county lines are not controlling. To interpret the Act otherwise could result in confusion and diminish the purpose of the Act; namely, to improve the quality of educational opportunities. We do not perceive this is an impingement of the constitutional integrity of counties. We have long recognized, in matters of education, that our constitution (Article 14, § 1, as amended) vests in the legislature the duty and authority to make provisions for the establishment, maintenance and support of a common school system in our state. See Lemaire v. Henderson, 174 Ark. 936, 298 S.W. 327 (1927). The pertinent statute gives the administering county board, as here, the absolute authority to designate the receiving district, and such district is mandated by the legislature to accept the district or parts of districts to be annexed. The legislature has provided that the only limitation on this authority is the annexation must be done “in a geographically contiguous manner.” There is no contention here that the annexation does not meet this criterion.

The Saline County School Board could have voluntarily released territory to the Garland County Board as to the administering of the mandated annexation, providing it was acceptable to the latter. § 80-4615. The Saline County Board, however, retained and properly exercised its authority.

Reversed and remanded for proceedings consistent with this opinion.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    STATE of Arkansas v. Otha Lee CONLEY
    CR 80-53
    603 S.W. 2d 415
    Supreme Court of Arkansas
    Opinion delivered September 8, 1980

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellant.

      Robert A. Newcomb, for appellee.
   John I. Purtle, Justice.

Robert Newcomb was appointed to defend the indigent appellee in a criminal proceeding in the Pulaski Circuit Court. At the conclusion of the proceedings, the trial court allowed the attorney a fee of $1,500.

The only question on appeal is whether Ark. Stat. Ann. § 43-2419 (Repl. 1977) limits the amount of compensation by court appointed attorneys to $350.

This same problem was discussed in our opinion in State v. Ruiz and Denton, 269 Ark. 331, 602 S.W. 2d 625 (1980), where we stated:

We hold that the trial court was bound by the provisions of the legislature and that each of the attorneys in the present case cannot receive more than $350 each for their services plus $100 each for investigation expense, and in doing so we necessarily hold Ark. Stat. Ann. § 43-2419 to be constitutional.

In State v. Ruiz and Denton, supra, we considered this same statute, Ark. Stat. Ann. § 43-2419, which reads in part:

*** The amount allowed for investigation expense shall not exceed One Hundred Dollars ($100.00) and the amount of the attorney’s fee shall not be less than Twenty-Five Dollars ($25.00) nor more than Three Hundred and Fifty Dollars ($350.00), based upon the experience of the attorney and the time and effort devoted by him in the preparation and trial of the indigent, commensurate with fees paid other attorneys in the community for similar services.

Appellee does not argue that the statute is unconstitutional but that the proper interpretation allows a trial court to award appointed attorneys a fee commensurate with those paid to other attorneys in the community for similar services. If it were not for the plain, unambiguous words limiting such fees to $100 and $350, we would probably agree with appellee’s contentions. However, to interpret the statute as urged by appellee would render the enumerated fee section of the statute meaningless.

We construe a statute by the meaning of the expressed words of the statute. Garrett v. Cline, 257 Ark. 829, 520 S.W. 2d 281 (1975). If the language is clear and unambiguous, we must construe it in accordance with the language employed. Mears, County Judge v. Ark. State Hospital, 265 Ark. 844, 581 S.W. 2d 339 (1979); Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W. 2d 881 (1965).

This statute imposes a burden upon the counties to pay fees to attorneys representing indigents which the counties would not be responsible for otherwise. Considering the purpose and language of the statute, we hold the General Assembly intended the dollar amounts expressed to be controlling. Therefore, we find no ambiguity and declare the trial court was in error in awarding a fee of $1,500.

Reversed and remanded with directions to enter an order allowing an attorney’s fee of $350, plus investigative expenses, if any, not to exceed $100.

Reversed and remanded.


author: John F. Stroud, Justice.

text:
    Leonard Harold MILLS v. STATE of Arkansas
    CR 80-73
    603 S.W. 2d 416
    Supreme Court of Arkansas
    Opinion delivered September 8, 1980
    Rehearing denied September 29, 1980

      Lessenberry & Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

Appellant, a 31 year-old male, was charged with two counts of rape and one count of attempted rape for allegedly engaging in deviate sexual activities by forcible compulsion with three Boone County teen-aged boys during the 1979 county fair. The charges arose from appellant’s having performed oral sex (fellatio) on two of the youths and attempting to do so on the other. Appellant was tried before a jury on October 16, 1979, and convicted of all charges. He was sentenced to terms of imprisonment of thirty, years for each rape and twelve years for attempted rape, the sentences to run concurrently. Alleging that the state failed to prove that.the acts engaged in by him were done by forcible compulsion, appellant brings this appeal. We agree with appellant.

Rape is defined in Ark. Stat. Ann. § 4l-1803(l)(a) (Repl. 1977) as follows:

(1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(a) by forcible compulsion; . . .

Deviate sexual activity is defined in Ark. Stat. Ann. § 41-1801(l)(a) (Repl. 1977) as “any act of sexual gratification involving: (a) the penetration, however slight, of the anus or mouth of one [1] person by the penis of another person; . . .”

Forcible compulsion is defined in § 41-1801(2) as “physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person.”

The sole question on this appeal is whether the state presented substantial evidence that appellant employed forcible compulsion in performing the two deviate sexual acts, and in attempting to perform the other such act. As to the attempted rape charge, the record indicates that appellant neither threatened nor employed physical force against the youth, and allowed him to leave the motel room after rejecting appellant’s advances. We, therefore, reverse and dismiss the conviction for attempted rape.

There was insufficient evidence of forcible compulsion in the incidents that led to the rape charges. In the incident with the 14 year-old, appellant offered him a ride home from the fairgrounds, but instead drove to a remote area outside of town. The only evidence of any physical force or threat employed by appellant was brought out in the testimony of the youth that after the appellant had performed an act of oral sex on him and they were on their way back to tQwn, appellant threatened to “kick his butt” if he told anyone. It is highly doubtful that this conduct amounted to forcible compulsion as defined by the statute, but even if it did, the conduct would not support the conviction, as it followed rather than preceded the deviate sexual activity. The boy also testified that he was scared of being killed or beaten up by appellant if he resisted, but there is no evidence that appellant ever threatened him before he committed the act. Subjective feelings of fear of physical injury by the victim must be based on some act of the accused that can be reasonably interpreted to warrant such fear. We do not think the evidence adduced at trial was sufficiently substantial to support the verdict of the jury of guilty of rape of the 14 year-old youth.

The other incident that led to a rape charge occurred in appellant’s motel room. Appellant had lured the boy there under the pretext of meeting two girls, and talked him into getting undressed while waiting for the girls to arrive. The testimony of this 15 year-old boy reveals that after appellant threatened to “tell everyone that you’re a chicken” if he did not consent to the act, the boy “said okay.” This seems to have been a case of consensual sexual activity and was certainly not an act carried out by forcible compulsion as defined by the statute.

In those instances where the evidence does not support conviction on a particular offense, but does clearly show the defendant’s conduct to have been violative of a lesser offense, this court has often modified the judgment of the circuit court to indicate conviction for the lesser offense and imposed a lesser sentence. Clark v. State, 246 Ark. 876, 440 S.W. 2d 205 (1969); Bailey v. State, 206 Ark. 121, 173 S.W. 2d 1010 (1943); Phillips v. State, 190 Ark. 1004, 82 S.W. 2d 836 (1935). As the proof of the two rape charges is deficient in regard to forcible compulsion, we must reduce both rape convictions to convictions of carnal abuse in the third degree. Ark. Stat. Ann. § 41-1806 (Repl. 1977) provides:

(1) A person commits carnal abuse in the third degree if being twenty (20) years old or older, he engages in sexual intercourse or deviate sexual activity with another person not his spouse who is less than sixteen (16) years old.
(2) Carnal abuse in the third degree is a Class A misdemeanor.

Pursuant to Ark. Stat. Ann. §§ 41-901 and 41-1101 (Repl. 1977), punishment for conviction of a Class A misdemeanor is “a term of imprisonment not exceeding one year” and “fine not exceeding $1,000.” As urged by appellant’s counsel, we reduce appellant’s sentence to one year imprisonment for each conviction, to run concurrently, and impose a fine of $1,000 on each.

Modified and affirmed in part and reversed in part.

Hickman, J., agrees to the reduction in sentence only because the appellant asked for it.


text:
    Nolan McCOY v. STATE of Arkansas
    CR 80-93
    603 S.W. 2d 418
    Supreme Court of Arkansas
    Opinion delivered September 8, 1980

      E. Alvin Schay, State Appellate Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

Appellant was convicted by a jury and sentenced to 10 years for possession of phencyclidine and sentenced to one year in the Pulaski County jail for misdemeanor possession of marijuana, with the sentences to run concurrently. Pie alleges three points of error on appeal, and as we agree that one of the points is meritorious, we reverse the judgment and remand the case for retrial.

A search warrant was issued by a municipal judge in Little Rock on February 9, 1979, authorizing a search for heroin of a particular apartment on Schiller Street. Appellant was taken into custody incident to the search of the apartment. The police officers found in the freezer compartment of the refrigerator a tinfoil packet containing a white powdery substance, which analysis later proved to be phencyclidine (PCP). A plastic ziplock bag containing a green vegetable matter was found in the bathroom closet lying on top of towels and this substance was later established to be marijuana. A total of 13 tinfoil packets containing a brown substance were found inside two matchboxes, which one of the officers testified appeared to be heroin and field tested to be heroin. Appellant denied any knowledge of the substances seized, but he admitted that they occasionally had “pot” parties there and that he was cleaning the floor for a “pot” party to be held that night. Although appellant was alone in the apartment at the time of his arrest, he denied it was his residence, claiming that he only stayed there occasionally and received mail at that address.

During the booking procedures of appellant at the Little Rock Police Station, the 13 foil packets of the substance suspected to be heroin disappeared from the matchbox. The other substances had been locked up, but these were still on the desk in the interrogation room when the detective turned to answer the phone. Detective Sylvester testified that when he turned back, he saw the matchbox open, the contents removed and the appellant with his hand at his mouth. Although he did not see appellant put anything in his mouth, he testified that he saw him swallowing with his hand over his mouth. After talking with his attorney and a doctor, appellant agreed to have his stomach pumped and x-rays taken, but no trace of the heroin was found. Consequently, appellant was not charged with possession of heroin. Prior to trial, the court denied appellant’s motion to suppress the admission of the drugs as evidence and also denied his motion in limine to prevent any mention of the heroin or appellants alleged swallowing of it. Appellant was tried on September 24, 1979, convicted of possession of phencyclidine and marijuana, and sentenced to terms of imprisonment of 10 years and one year, respectively. Appellant brings this apeal, alleging that the evidence was insufficient to support his conviction, that the trial court erred in denying his motion to suppress the evidence, and that it was error to allow testimony about heroin when he was not charged with possession of heroin.

We agree with appellant’s contention that his conviction should be reversed due to the prejudicial effect of the testimony concerning the substance field tested to be heroin, which was allowed into evidence by the trial court over the objections of appellant. In the present case, the trial court allowed several witnesses to testify about the heroin and its subsequent disappearance, ruling that the evidence was relevant to some knowledge or absence of mistake by appellant and therefore admissible. Ark. Stat. Ann. § 28-1001, Uniform Rules of Evidence, Rule 404(b) (Repl. 1979) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

It is well-settled that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, is not admissible at the trial of the accused. Moser v. State, 266 Ark. 200, 583 S.W. 2d 15 (1979); Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). Even if the events comprising the objectionable testimony were considered to be a part of the same transaction or proof of knowledge, opportunity, etc., there are instances where evidence of other offenses should not be admitted, particularly where its prejudicial impact substantially outweighs its probative value. U.S. v. Moody, 530 F. 2d 809 (8th Cir. 1976); Moser, supra. Ark. Stat. Ann. § 28-1001, Uniform Rules of Evidence, Rule 403 (Repl. 1979), provides, in part:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, . . .

Here, as there was no positive proof that appellant actually swallowed the substance or proof by laboratory analysis that it was actually heroin, we think the testimony about it was prejudicial and of little or no probative value in determining appellant’s guilt of possession of the PCP and marijuana. Accordingly, we think the trial court committed reversible error in admitting this testimony, and we reverse and remand this case for retrial.

We find no merit in appellant’s contention that the evidence in this record was insufficient to prove that he possessed the controlled substances, and recognizing that the evidence will not be identical on retrial, we do not elaborate on the details of appellant’s contention nor our reasons for rejecting it. Appellant’s remaining point of error on this apeal is that the trial court erred in failing to suppress the evidence seized in the search. We likewise decline to dwell on this point, but we find no reversible error in the ruling of the trial court allowing the drugs seized in the search being admitted into evidence.

Reversed and remanded.


author: Richard L. Mays, Justice. John F. Stroud, Justice,

text:
    CARTER-FLEMING et al v. KIRBY BUILDING SYSTEMS, INC. and August KHILLING
    80-104
    603 S.W. 2d 421
    Supreme Court of Arkansas
    Opinion delivered September 8, 1980

      Shaw & Ledbetter, for appellants.

      Bethell, Callaway & Robertson, for appellees.
   Richard L. Mays, Justice.

Our mechanics’ lien statute requires actual notice to the landowner before the assignment of a lien against his land is enforceable. Since no specific time limitation is set out by the statute, the court below enforced a lien against the land of appellants in which the assignor of the lien continued to claim an interest six months after the assignment and in which no actual notice of the assignment occurred for seven months, and only then through legal pleadings seeking to enforce the lien. Although appellants do not claim prejudice, they argue that enforcement of a lien under such circumstances would completely emasculate the statutory requirement of “actual notice.” We agree and, accordingly, reverse.

In January, 1977, Khilco Industrial Electric, Inc. (hereinafter called Khilco) filed a materialman’s lien against appellants, Carter-Fleming, a partnership, for electrical work done by Khilco as a subcontractor for appellants’ general contractor responsible for erecting two buildings on appellants’ property. On February 12, 1977, Khilco assigned the lien to appellee, August Khilling, and filed evidence of the assignment with the circuit clerk. On July 25, 1977, Khilco re-asserted an interest in the lien in litigation involving apellants. Approximately three weeks later on August 17, 1977, appellants were first notified of the assignment at the same time that appellee sought to enforce the lien.

Ark. Stat. Ann. § 51-626 (Repl. 1971), provides that no assignment or transfer of a mechanic’s lien shall “be enforced against the owner or proprietor of the ground or buildings unless such owner or proprietor shall have actual notice of such assignment so as to protect himself.” [Emphasis supplied.] Although no specific time limitation for notice of the actual lien assignment is prescribed by statute, we hold that the requirement of “actual notice” at least contemplates a notice reasonably contemporaneous with the assignment of the lien. Since the requirement of notice is not conditioned upon actual prejudice, there is a time beyond which the giving of notice of the assignment will not be sanctioned. We hold that that time was exceeded under the circumstances before us today.

Reversed.

Fogleman, C.J., and Holt and Stroud, JJ., dissent.

John F. Stroud, Justice,

dissenting. I respectfully disagree with the finding of the majority that the giving of actual notice of the assignment of a mechanics’ lien on August 17, 1977, was untimely and void for a lien actually assigned on February 12, 1977. If the legislature had intended a time limitation, I believe it would appear in Ark. Stat. Ann. § 51-626 (Repl. 1971). The statute indicates the only limitations to be that it “shall not be enforced” until the actual notice is given and indicates the purpose is “to protect himself.” Appellant here had notice prior to the enforcement of the lien and has shown no prejudice to the lapse of six months and five days. The facts are undisputed that the assignment was merely from the company to the president and owner of the company and there was no action appellee could possibly have taken to protect himself if he had been given actual notice on the day of assignment. I would affirm the judgment of the trial court.

Fogleman, C.J., and Holt, J., join in this dissent.


author: Ernie E. Wright, Chief Judge.

text:
    Ronnie Weeks v. COCA COLA BOTTLING COMPANY and ROYAL GLOBE INSURANCE COMPANY
    CA 80-190
    604 S.W. 2d 566
    Court of Appeals of Arkansas
    Opinion delivered September 10, 1980
    Rehearing denied October 15, 1980

      J. R. Nash, for appellant.

      Chester C. Lowe, Jr., for appellees.
   Ernie E. Wright, Chief Judge.

The Appellant Ronnie Weeks sustained a compensable back injury in the course of his work for Appellee Coca Cola Bottling Company in November, 1974. In December, 1976, he suffered a second compensable back injury while at work for the same employer.

Upon appeal to the Workers’ Compensation Commission by the employer and insurance carrier from the decision of the administrative law judge, the Commission made certain final determinations with respect to the claim, but remanded certain issues to the administrative law judge for decision after the development of further evidence.

We do not review those portions of the Commission’s decision which are remanded to the administrative law judge. There has been no final determination as to such matters, and same are not properly before this court for review. Ark. Stat. Ann. § 27-2101 (Repl. 1979); Luker v. Reynolds Metals Co., 244 Ark. 1088, 428 S.W. 2d 45 (1968); Johnson v. Bear Brand Roofing Co., 234 Ark. 733, 354 S.W. 2d 277 (1962).

The Commission found claimant had sustained a ten percent permanent partial disability to the body as a whole resulting from the 1974 injury, but had been paid all medical benefits and temporary and permanent compensation therefor. This determination is not challenged on appeal. We, therefore, limit our review and. discussion to final determinations made by the Commission as follows:

(1) Finding that appellant’s healing period ended December 6, 1977, thus ending temporary total disability benefits for the last injury.
(2) Finding that claimant has a permanent partial anatomical disability of fifteen percent to the body as a whole from the last injury.
(3) Finding that appellees have controverted compensation benefits in excess of five percent permanent partial disability, and have not controverted rehabilitation benefits and related expenses.

First, appellant contends the Commission erred in failing to find the claimant is totally disabled and eligible for compensation payments. He argues the evidence shows he is in need of further medical treatment, continues to be unable to work, and that he should continue to receive temporary total disability benefits with such payments not chargeable to the satisfaction of any permanent disability award. Appellant cites no authority to support payment of temporary disability benefits after the end of the healing period, and has therefore failed to establish this point for reversal. Wallis v. Smith’s Pie Company, 261 Ark. 622, 550 S.W. 2d 453 (1977).

Next appellant contends the Commission erred in determining his healing period had ended on December 6, 1977. However, claimant makes no argument in support of this point and cites no authority. There was unrefuted medical evidence to support the finding of the Commission as to the end of the healing period, and on appeal we do not consider an assignment of error presented in the brief not supported by convincing argument or authority unless it is apparent without further research that the asserted error is well taken. Hazen v. City of Booneville, 260 Ark. 871, 545 S.W. 2d 614 (1977).

Appellant next contends the Commission erred in determining he has a permanent anatomical disability rating of fifteen percent to the body as a whole arising out of the injury in question, and argues that so long as medical treatment is required to alleviate pain arising out of the injury the healing period should not be said to be ended. Claimant points to the additional medication he was taking after December 6, 1977, pursuant to direction of his physician who performed surgery on his back, and to the circumstances of his surgeon referring him to Dr. Warren Boop, a neurosurgeon, for treatment in a pain control program. No authorities are cited in support of this point for reversal, and the appellant has failed to show error on the part of the Commission. The determination of claimant’s ultimate benefits for permanent disability compensation within the meaning of the statute was reversed pending further evidence and determination by the administrative law judge after further exploration of rehabilitation for the claimant. In the final determination of permanent disability benefits, the loss of the capacity of the claimant to earn wages or other income remains open for final determination.

Claimant next argues the Commission erred in failing to determine that he is entitled to change physicians at the expense of the employer. We point out that the Commission has made no final determination of claimant’s right to payment of medical benefits incident to the treatment by Dr. Boop for relief from residual pain, but has remanded certain questions with reference to this issue to the administrative law judge. Therefore, the issue is not properly before us for review.

Finally, claimant contends the Commission erred in determining that respondents have not controverted all benefits payable after October 15, 1978, the date on which the appellees discontinued compensation benefits.

The Commission found that appellees have not controverted vocational rehabilitation and related expenses but have controverted payment of permanent partial disability benefits in excess of five percent to the body as a whole. The Commission made no final determination as to whether expenses incident to Dr. Boop’s treatment were controverted, and this issue remains open for determination by the Commission when appellees’ liability for the expenses is determined.

We find nothing in the record warranting a holding that appellees have controverted claimant’s right to rehabilitation benefits if he undertakes a rehabilitation program. At the time of the hearing before the Commission the claimant had not selected or elected to pursue a rehabilitation program. We -find no error on the part of the Commission in limiting its finding as to controversion of benefits at this point to the finding that appellees have controverted payment of permanent partial disability benefits in excess of five percent to the body as a whole.

The burden is upon appellant to demonstrate error in the findings and order of the Commission, and after a careful examination of the record, we conclude appellant has failed to do so.

Affirmed.


author: Steeue Hays, Judge. Marian F. Penix, Judge,

text:
    Geneva Lee BALDWIN v. CLUB PRODUCTS COMPANY and FIREMAN’S FUND INSURANCE
    CA 80-228
    604 S.W 2d 568
    Court of Appeals of Arkansas
    Opinion delivered September 10, 1980
    Rehearing denied October 15, 1980

      J. R. Nash, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, for appellees.
   Steeue Hays, Judge.

This is a workers’ compensation case. Claimant, Geneva Lee Baldwin, injured her right arm, shoulder and back while under the employ of appellee, Club Products Company. She had been hired as a “packer” on an assembly line. At the time of her injury, she was doing heavy lifting while cleaning the plant. The issue before the Administrative Law Judge was whether appellant was barred from receiving Workers’ Compensation benefits by reason of making false representations on an employment application form. Also at issue was whether claimant was entitled to a change of physician. The Administrative Law Judge determined that appellant did knowingly make a false representation on her application form with regard to her physical condition. He further found that the employer relied on this representation in the hiring of appellant and that the misrepresentation had a causal relationship to the injury. This decision was affirmed by the full commission. Claimant now brings this appeal.

The first point for reversal is that the commission erred in its determination that claimant was denied benefits due to her false representation on her application form and that such determination is contrary to the law.

In the case of Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W. 2d 232 (1979), the Arkansas Supreme Court adopted the Larson test (stated in Larson’s, Workers’ Compensation Law § 47.53) for deciding when a false statement in an employment application form will bar benefits. The test requires three factors to be present:

(1) The employee must have knowingly and willfully made a false representation as to his physical condition.
(2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring.
(3) There must have been a causal connection between the false representation and the injury.

In the Stepp case, claimant received a back injury while working for Shippers Transport of Georgia. He had falsely represented on his application form that he had not received any previous injury while on the job. In fact, he had suffered three previous back injuries. On appeal, the respondents contended that claimant was precluded, as a matter of law, from receiving Workers’ Compensation benefits. The Supreme Court reversed the decision of the commission, stating the commission did not use Larson’s test in its determination. The court stated that appellants presented ample testimony to establish the first two points, but that as to the third point, they merely argued that it was common knowledge that three previous back injuries left him with a weakened back. The Arkansas Supreme Court recognized appellee’s testimony that he had been advised by his doctor that he was in good physical condition, that he had no back limitation, and that he had worked as a mechanic for the past six years without incident. The case was reversed to determine if all factors of the Larson’s test were present.

In the instant case, appellant had made a false statement on her employment application form that she had never been injured on the job and that she had never filed a workers’ compensation claim. The evidence in this record indicates that claimant had suffered an injury which affected her left hand and arm on August 26, 1969, and Doctor Fletcher had performed surgery upon claimant’s left wrist to correct carpal tunnel syndrome. On July 9, 1977, claimant suffered the present injury to her “right upper extremity.”

We agree with appellant that there is no substantial evidence in the record to support the commission’s finding that a causal connection existed between the disputed injury and the prior injury. In their brief, appellees state the following:

The third factor necessary under the Shippers Transport of Georgia v. Stepp, supra, is supported by the appellant’s medical history of neck and back injuries, and her own testimony that she was protecting her left arm from further injury and, therefore, straining with her right arm. The appellees submit that the Commission was justified in finding that there was a causal connection between the false representation and the injury.

We do not believe that this evidence is substantial to establish the third factor of Larson’s test. Appellant cites a Tennessee case which gives some helpful information on what type of evidence is needed to establish the third factor. In Laminate Plastics Manufacturing Company v. Greene, 561 S.W. 2d 458 (Tenn. 1978), the court stated:

The causal connection required is a factual showing that the injury upon which the workmen’s compensation claim is based is causally related to the employee’s prior injuries or physical condition which were wrongfully concealed from the employer. Except in the most obvious cases, such causation must be established by expert medical testimony. (Cases omitted.) (Emphasis added.)

In the case of Daniels v. Gudis Furniture Company, 541 S.W. 2d 941 (Tenn. 1976), claimant was employed to work on a furniture assembly line. He injured his back while lifting a “triple” dresser. The chancellor found that claimant was permanently partially disabled to the extent of 40%, but disallowed benefits because claimant had made a false statement when applying for the job that he had never been injured on the job and that he never had filed a claim for workers’ compensation. In fact, appellant had suffered a back injury in 1969 and was paid workmen’s compensation benefits based on a rating of 5% permanent partial disability.

On appeal, the Supreme Court of Tennessee reversed the decree of the chancellor and remanded the case to the chancery court with directions to enter an award in favor of appellant. The court held that there was no evidence of a causal connection between the false representation and the injury sustained by claimant. On this issue, the court stated:

. . . The only testimony is that of Doctor David L. Greene, who testified as follows:
Q. All right, now, Doctor, is there a causal connection, in your opinion, between the psychogenic disorder that you found to exist on the dates of your examination, a causal connection between that and the injury that he says he sustained on March 11, 1975?
A. In my opinion, there is a causal connection.
* * *
Q. Doctor, what are some of the things, well, first of all, did Mr. Daniels relate to you other injuries that he had prior to the March 11, 1975 injury?
A. Yes, he did.
Q. O.K., then from a psychiatric standpoint, and particularly in performing a psychiatric examination, then did you go into occurrences prior to March 11, 1975, the date of the accident and occurrences subsequent to that date?
A. I did.
Ji. JL
*lv 'TV' •VV
Q. Doctor, the — do you relate the psychological disorder, is it directly attributed, in your professional opinion, to the March 11, 1975, accidental injury?
A. Yes, sir, it is.
Q. And you considered all past history in connection with the evaluation and assessment, right?
A. I considered his other injuries and accidents that he related to me.
Neither Doctor Greene nor the other medical witness, Doctor Gary R. Chambers, undertook to testify that appellant’s injury and resulting disability was in any way related to his back injury of 1969, nor that the 1969 injury made appellant a more likely candidate for a back injury than a workman who had not had such an injury. There being no medical evidence tending to show a causal connection between the false representation made by appellant in his application for employment and the injury he sustained while working for appellee, appellant is entitled to benefits for the work-connected, permanent partial disability found by the chancellor.

In the instant case, all of the medical testimony supported the appellant’s position. Doctor John Hundley’s report of August 7, 1979, specifically states:

The records and letters you provided me all refer to complaints referable to the left upper extremity. There is no way any of these complaints could be related to the problems that were caused by the accident of July 8, 1977., which was and has always been referable to the right upper extremity . . .
... In summary, the accident of 1969 is in no way related to the accident of July 8, 1977. She remains temporarily totally disabled, her healing period has not ended and there will remain permanent functional impairment of the body as a whole. (R. 44-45)

There is no expert medical testimony to the contrary. Although appellees mention in their brief the reports of Doctor Thomas Fletcher, we do not find these reports in the record. In fact, a thorough scrutiny of the record fails to reveal any medical evidence touching on a causal relationship between the injury in 1969 and the current injury, except Doctor Hundley’s report to the exact contrary, and, thus, we are baffled by the findings of both the Administrative Law Judge and the Commission that the causal requirement of Shipp is supported by “medical evidence.” There is none. Claimant conceded on cross-examination that Doctor Fletcher had told her not to accept a job that required heavy lifting after the 1969 injury, however, we do not believe that this can be termed “medical evidence” and for us to treat it as substantial evidence which satisfies the requirement of a causal connection between the two injuries would require that we make conclusions that are clearly in the medical realm. Under the authorities mentioned, we find that there was no substantial evidence to support the commission’s finding that there was a causal connection between appellant’s prior injury and the present injury for which she is claiming disability-

The second point for reversal is that the commission erred in its determination that claimant is not entitled to a change of physicians. It appears that the commission never resolved this issue. Since the commission never made a determination as to the question of claimant’s entitlement to a change of physician, we would remand the case back to the commission to now make such a determination.

Hence, the case is reversed and remanded to proceed in accordance with this opinion.

Reversed and remanded.

Pendí and Newbern, JJ., dissent.

Marian F. Penix, Judge,

dissenting. In reviewing the record I find the third factor required by Shippers Transport of Georgia v. Stepp, 265 Ark. 365 (1979) to be present. The record supports the finding there was a causal connection between the Claimant’s false representation and her injury.

The Claimant testified Dr. Thomas Fletcher treated her for an injury to her left arm in 1969 and she drew 5% disability. She testified Dr. Fletcher told her to avoid heavy lifting and to avoid employment or activity that involved continuous (use of) hands, wrists and shoulders. At the time of the Claimant’s July 9, 1977 injury she was doing heavy lifting in the process of cleaning the plant. By her own testimony, when Dr. Fletcher performed the surgery November 10, 1969, to correct carpal tunnel syndrome he warned against heavy lifting and repetitive wrist motion. At that time Dr. Fletcher learned the Claimant had mild cervical osteo-arthritis which was aggravated by exertion and heavy lifting. The Claimant testified she injured her right hand and avoided injury to her left hand “because I was protecting it.”

The majority relies upon Shippers Transport of Georgia v. Stepp, supra. That case was remanded by the Supreme Court to the Commission for further findings in accordance with the third required factor.

... As to the third factor, i.e., a causal connection between the false representation and the present injury the appellants argue it is common knowledge that appellee’s three previous back injuries left him with a weakened back which is prone to serious injury. However, according to appellee, he was advised by his doctor that he was in good physical condition to do manual labor (he had back surgery in each injury), he had no back limitation, and he had worked for the past 6 years as a mechanic without incident until this injury occurred.

The case at hand is distinguishable. Unlike the claimant in Shippers Ms. Baldwin herself testified she had been told by Dr. Fletcher to avoid lifting and repetitive use of her left wrist. The Claimant herself provided the evidence which the Commission found to be substantial to support its finding there was a causal connection between the misrepresentation and the current injury. For this court to hold otherwise amounts to rewarding an employee who has deliberately lied and deceived her employer in order to obtain employment. Shippers Transport, supra, does not require such an illogical, inequitable and unjust result.

I respectfully dissent.

Newbern, J., authorizes me to state he joins in this dissent.

      Commission Rule No. 21 provides that a claimant may obtain a change in treating physicians to a physician of the claimant's choice provided . . (5) no unresolved issue exists over whether claimant is legally entitled to medical care at the expense of respondents.” Since the commission found that the claimant was barred from receiving Workers’ Compensation benefits because of her false statements on the employment application form, it never decided the issue of whether claimant was entitled to a change of physicians.


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

text:
    J. A. WARREN v. L. C. WARREN
    CA 80-69
    603 S.W. 2d 472
    Court of Appeals of Arkansas
    Opinion delivered September 10, 1980

      Bob Scott, for appellant.

      Mitchell, Williams, Gill & Selig, by: Theodore C. Skokos and Beverly Bassett, for appellee.
   James H. Pilkinton, Judge.

This is a divorce case but the issues on appeal are confined only to (1) the division of property, (2) the trial court’s failure to allow alimony and (3) the sufficiency of the award of attorney’s fees made by the trial court for appellant’s counsel.

Judy A. Warren and Lonnie C. Warren had been married for fifteen years at the time of the trial but had been separated for the last two years. Dr. Warren is in private practice as a dentist and teaches at the University of Arkansas Dental Hygiene School. Mrs. Warren is not employed, except on a part-time basis. Mrs. Warren filed a petition for divorce in October of 1978 and Dr. Warren filed a counterclaim also asking for a divorce. The court granted a divorce to the wife.

The trial court awarded Mrs. Warren all of the household furnishings, a 1976 Buick automobile, one-half of Dr. Warren’s equitable interest in some real property which he owns jointly with his father, and one-half of the proceeds from the sale of Dr. Warren’s 1971 Datsun automobile. Dr. Warren was awarded all of his dental office equipment and furnishings, and a 1977 Jeep. The court also ordered that the home, in which Mrs: Warren and the children are living, be sold and the proceeds divided equally between the parties. The court did not award Mrs. Warren any interest in her husband’s accounts receivable. However, the trial court did order the husband to pay all of the family debts. The parties are the parents of two minor children, Bryce, age 11, and Rachelle, age 5. Mrs. Warren received custody of the children and Dr. Warren was ordered to pay $700 per month to the mother as child support. No alimony was awarded.

Counsel for Mrs. Warren was awarded a $100 fee at a temporary hearing in March of 1979 and an additional fee of $600 at the trial on September 29, 1979, at which time Mrs. Warren was awarded a divorce. Mrs. Warren has appealed from the decision of the trial court insofar only as the three matters mentioned above are concerned. There is no cross-appeal.

I

Appellant argues that the trial court erred by failing to award any portion of the accounts receivable to the wife. Counsel seems to agree, and the record would indicate, that the trial court was attempting to distribute all of the marital property one-half to each party in accordance with Ark. Stat. Ann. § 34-1214(1) (Supp. 1979). We agree with appellant that accounts receivable may be treated as a marital asset with a provable net present value. Riegler v. Riegler, 243 Ark. 113, 419 S.W. 2d 311 (1967). While the decree did not spell out individual allocations in some of the specific items, including the accounts receivable, and while some of the value testimony was sharply disputed, it is apparent from the record that the value of the marital assets Mrs. Warren received, taken as a whole, equaled or exceeded the value of the property awarded to Dr. Warren. The husband was required by the court to pay all of the family debts amounting to $13,832.67. Under the record in this case, we are unable to say that the chancellor did not take the accounts receivable into consideration in making the property division. Nor can we say the trial court’s action in the division of the property was clearly erroneous or clearly against a preponderance of the evidence. Equity cases are tried de novo on appeal upon the record made in the chancery court. O’Neal v. Ellison, 266 Ark. 702, 587 S.W. 2d 580 (1979); Ferguson v. Green, 266 Ark. 556, 587 S.W. 2d 18 (1979). However, we do not reverse the decision of the chancellor on a disputed fact question unless the decision is clearly against the preponderance of the evidence. Rule 52, Arkansas Rules of Civil Procedure.

Appellant next argues that the trial court erred in holding appellee’s interest in the Twin Lakes lot to be one-third equity. The testimony is undisputed that Dr. Warren and his father purchased the Twin Lakes lot for $5,000 under a sales contract as an investment. The contract did not set out the percentage of ownership. The evidence shows that appellee’s father paid $1,000 down and Dr. Warren made $50.00 monthly payments, and is continuing to make $50.00 monthly payments. Dr. Warren testified that his father made an additional $1,500 payment. Appellant contends that the parties considered this to be a 50-50 partnership, appellee’s father having contributed $2,500 and appellee making his contribution of $2,500 is the form of monthly payments of $50.00 each. Appellee contends that it is immaterial whether Dr. Warren and his father bought the Twin Lakes property as partners — with equal ownership — as that is not really the issue. Appellee claims the real issue is what equitable interest Dr. Warren has in the property for the purpose of awarding appellant one-half of the value of that interest. The property was valued at $8,000 but Dr. Warren and his father still owed $1,500 on the land. It is undisputed that Dr. Warren has paid only one-third of the purchase price and his father has paid two-thirds of it. The trial court found that the equitable interest of Dr. Warren in this particular property was $2,200, and that Mrs. Warren was entitled to receive one-half of that amount. We cannot say that the trial court’s determination of this issue was clearly erroneous or clearly against the preponderance of the evidence. The burden was upon appellant to establish the nature and extent of appellee’s property. It was for the chancellor to resolve the conflict in the evidence. McCray v. McCray, 256 Ark. 868, 514 S.W. 2d 219 (1974). After a careful review of the record, we are unable to say that the chancellor did not award Mrs. Warren her proper statutory share in value of the personal property.

Ill

Appellant contends that the trial court erred in ordering the sale of the homestead. The chancellor ordered Dr. Warren to make the monthly mortgage reduction payments on the homestead, plus the pro rata payments for insurance and taxes, for the months of October, November, and December, 1979, after which the court ordered the homestead sold and the net proceeds divided equally between the parties. The decree had the effect of dissolving the estate by the entirety under which the parties held title to their home.

The record shows that the parties were married on June 13, 1964, in Little Rock, Arkansas, and then moved to Memphis, Tennessee, where appellee was a third-year dental student. Mrs. Warren provided income while he completed dental school, after which they returned to Little Rock; where Dr. Warren started teaching at the University of Arkansas Dental Hygiene School and began his private dental practice. Their standard of living continued to increase. They constructed a new home in 1976 which was then appraised at $80,000. According to the evidence the home was worth considerably more at the time of the trial. Dr. Warren paid income taxes in 1977 on an adjusted gross income of $45,934. In 1978 his adjusted gross income was $58,200. At the time of the trial, his 1979 adjusted gross income had not been determined but the testimony indicates that it would be somewhat less than the receding years. Dr. Warren had deposited $1,-500 a month to the household account for approximately three years prior to the trial.

Mrs. Warren had devoted most of her time to caring for the two children and had not been employed on a regular basis. She has worked only part time on a substitute basis in a doctor’s office when the regular staff is on vacation, or when some of the regular employees were ill. She only worked then a day or two at a time, as her primary task was to care for the children. When Mrs. Warren worked in the summer of 1979, arrangements had to be made for child care during her absence. With her present training, or lack of it, the evidence shows that the earning ability of the wife is limited.

After a careful review of the evidence, we have concluded that the portions of the decree ordering the sale of the homestead and refusing to award any alimony to the wife are clearly against the preponderance of the evidence on those issues. We consider the question of the sale of the home and the matter of alimony together as they both relate to the welfare of the children and of the wife. Mrs. Warren has responsibility of rearing two minor children. Even Dr. Warren agreed in his testimony that the children have an attachment to their home and it would be disruptive to move them. In view of the earning ability of Dr. Warren, the age and lack of vocational skills of Mrs. Warren and the economics involved in the sale and acquisition of replacement facilities, a preponderance of the evidence does not support the chancellor’s decision that the homestead should be sold at this time, or that no alimony be awarded. Trial de novo on appeal in equity cases involves determination of fact questions as well as legal issues; and this court determines what the finding of the chancellor should have been on the record before us. Ferguson v. Green, 266 Ark. 556, at 564, 587 S.W. 2d 18 (1979). The welfare of the minor children would best be served by the mother being permitted to retain possession of the home until the children have reached an age that the dispossession would not disrupt their lives so totally as it would at this time. Under all circumstances existing in this case we have concluded that the trial court should have awarded possession of the homestead to Mrs. Warren, until both children are of age or leave the home, or until she remarries or decides to reside elsewhere during the minority of the children. The testimony shows that the mortgage payment on the home is $393.36 per month, plus the pro rata payments for the insurance and real estate taxes on the house, in the amounts of $37.00 and $34.00 respectively. The appellee shall be required to make these monthly payments for the calendar year 1980. Thereafter some alimony will be required for Mrs. Warren to be able to meet these monthly obligations. Effective January, 1981, Dr. Warren shall pay the sum of $250.00 per month as alimony to Mrs. Warren, during the time she is in possession of this property, to be applied by her against the house payment monthly and the pro rata obligation for insurance and real estate taxes on the home. Mrs. Warren will be required to pay the difference and will be responsible for making these payments during the time that she is in possession of this property. The decree of the chancery court is modified as indicated.

IV

Appellant contends the trial court erred in the award of attorney’s fees to counsel for appellant. The trial court awarded a total of $700.00. Mrs. Warren contends that this award was inadequate. The trial court has considerable discretion in the allowance of attorney’s fees in divorce cases. Bowers v. Bowers, 257 Ark. 125, 514 S.W. 2d 387 (1974); Grumbles v. Grumbles, 245 Ark. 77, 431 S.W. 2d 241 (1968). Such fees are not awarded as a matter of right but the granting or denial of attorney’s fees is within the sound discretion of the chancellor. Ryan v. Baxter, 253 Ark. 821, 489 S.W. 2d 241 (1973). The chancellor is in a much better position to evaluate the services of counsel than an appellate court, and unless a clear abuse of discretion is evident, the chancellor’s action in fixing attorney’s fees will not be disturbed on appeal. Wiles v. Wiles, 246 Ark. 289, 437 S.W. 2d 792 (1969). We cannot say that there was an abuse of discretion in evaluating and awarding the fee in this case.

The decree of the trial court is modified to award possession of the home to Mrs. Warren as herein provided, and to allow the alimony indicated, but is affirmed in all other respects. Counsel for the appellant is awarded an additional fee of $800 for services rendered in this court on appeal.

Affirmed as modified.

Newbern and Penix, JJ., dissent.

Hays, J., not participating.

David Newbern, Judge,

dissenting. Perhaps the least guarded secret in the review of chancery court cases is that appellate courts say the review is “de novo” when they plan to reverse, modify, or affirm the decree on grounds other than those stated by the chancellor. If the case is to be affirmed, then the emphasis is upon the language which has been codified by the parenthetical addition in Ark. R. Civ. P. 52 which says “[findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence) . . . .” In the law review article cited by the majority opinion, Mr. Cox and I suggested the addition of the parenthetical expression could have been intended to preserve the court’s power to engage in “de novo” review of chancery cases.

Our supreme court has combined the “de novo” standard with the “clearly against” the preponderance of the evidence” standard in many cases. The important distinction in the treatment of factual determinations upon review is, of course, with respect to chancery cases and others in which there is no jury and those in which a jury has made the initial factual determinations. I have no difficulty following either our supreme court’s cases, or Rule 52, and applying them to cases coming before this court where there is a request that some factual determination be reviewed. However, I question whether we should have the kind of latitude permitted by the “combined” standard used before the adoption of Rule 52.

Rule 52 may or may not have caused a change in the review standard with respect to factual determinations in chancery proceedings. Either this court or the supreme court will probably have an opportunity to discuss that problem, however, I do not believe the opportunity is presented by this case. Though the parties bickered in their briefs and upon oral argument with respect to minor differences in asserted value of items of property, there was and is no disagreement as to the fundamental facts the majority uses in support of the proposed modification of the decree. The parties do not dispute the ages of their children, the employment record of the appellant, the earning capacity of the appellee, or general financial circumstances of each of them. The dispute is about whether the chancellor erred in denying certain items of support for the appellant, i.e., alimony and retention by her of the house in which the parties had dwelled.

In my opinion, the standard by which we review these matters is neither “de novo review” ñor “preponderance of the evidence.” Rather, in determining whether the basically undisputed facts should have given rise to relief requested by the appellant, we must determine whether the chancellor erred by the use of yet another review standard. The chancellor’s decision should be reversed only if we find he abused his discretion. Gross v. Gross, 266 Ark. 186, 585 S.W. 2d 14 (1979); Neal v. Neal, 258 Ark. 338, 524 S.W. 2d 460 (1975).

This review standard may be just as fuzzy as the combined “de novo” and preponderance of the evidence standards, but my opinion is that we must have a very strong sense that the chancellor erred before we can say he abused his discretion by failing to award a discretionary remedy. In this case I do not find any evidence or reason which compels me to say the chancellor abused his discretion. Therefore, I respectfully dissent.

      See also Cox and Newbern, New Civil Procedure, 33 Ark. Law Review 1, at pp. 66-67 (1979).

        E.g., Ferguson v. Green, 266 Ark. 556, 587 S.W. 2d 18 (1979) (modified); O’Neal v. Ellison, 266 Ark. 702, 587 S.W. 2d 580 (1979) (affirmed on other grounds); State Farm Fire and Casualty Co. v. Switzer, 257 Ark. 810, 520 S.W. 2d 245 (1975) (reversed).

        E.g., Garot v. Hopkins & Coates, 266 Ark. 243, 583 S.W. 2d 54 (1979); Titan Oil & Gas v. Shipley, 2457 Ark. 278, 517 S.W. 2d 210 (1975); Moore v. Smith, 255 Ark. 249, 499 S.W. 2d 634 (1973).

      See, Walter v. Holman, 245 Ark. 173, 431 S.W. 2d 468 (1968), where our supreme court indicated there is a difference by putting the "abuse of discretion” standard in the disjunctive in the following language:
      Although this court tries equity cases de novo on appeal, we do not disturb a chancellor’s order or. decree unless it is clearly against the preponderance of the evidence, or unless the chancellor has abused his discretion.


author: James H. Pilkinton, Judge.

text:
    MOUNTAIRE POULTRY, INC. et al v. Phyllis PULLIAM
    CA 80-237
    601 S.W. 2d 223
    Court of Appeals of Arkansas
    Opinion delivered September 10, 1980

      Chester C. Lowe, Jr., for appellants.

      William H. Hodge, for appellee.
   James H. Pilkinton, Judge.

This is a claim filed by appellee for compensation under the workers’ compensation law. It is the claimant’s position that on January 13, 1975, she sustained an accidental injury to her left knee when she stepped in an open drain at her place of employment. She further contends that it was not until September 1, 1977, that the injury became so aggravated that it required surgical intervention. Claimant additionally argues that her right leg, due to the additional stress placed upon it by a weakened left leg, also required surgery in October, 1978. The employer and its insurance carrier resisted the claim on the ground that it is barred by the statute of limitations [Ark. Stat. Ann. § 81-1318 (Repl. 1976)]. The Commission rejected the plea of limitations, finding that although the claimant suffered a work-related injury on January 13, 1975, the nature of the injury did not become apparent and compensable until September 2, 1977; and that the claim, filed on September 19, 1978, was therefore timely. We find substantial evidence to support that conclusion and therefore affirm the award.

The claimant, Mrs. Phyllis Pulliam, testifed that in January of 1975 she stepped in a drain hole from which the grate had been removed. She felt an immediate pain in her left knee and promptly went to see the company nurse, Mary Grantham, who told her she had a sprained knee and gave her some muscle relaxers. Mrs. Pulliam did not go to see a doctor right away. Later in the year she went to Dr. Barry Green, but not for her knee injury. She did see the company nurse regularly between January, 1975, and September, 1977, when she first saw Dr. Green about her knee injury. Mrs. Pulliam didn’t miss any work from January of 1975 until September of 1977. She had surgery performed on her left knee on October 4, 1977, missed work from that time until January 3, 1978, and then worked until May 4, 1978. She testified that she had to cease work on May 4,1978, because her left leg just wouldn’t hold her up any longer. Claimant had surgery on her right knee in October, 1978. The employer continued to pay her regular salary through August 8, 1978.

Other evidence submitted includes the testimony of the company nurse, the reports of Dr. Barry Green, a copy of an employee health record compiled on the claimant, the record of a knee brace being obtained for claimant, a copy of the employer’s first report of industrial injury, and a copy of the claim filed with the Commission.

The essence of the claimant’s testimony was that she believed she had suffered a sprained left knee, but that her knee grew progressively worse until she was forced to seek the medical attention that resulted in the surgery in October of 1977. The evidence given by Mrs. Mary Grantham, the company nurse, supports the claimant’s theory of recovery. On her medical log Mrs. Grantham made a notation of the claimant injuring her knee on January 13, 1975. From that time until September of 1977, the claimant continued to work, and was provided 7-1/2 grain aspirin for the entire period on a fairly regular basis. Although the claimant sought no medical services in connection with her knee until September of 1977, Mrs. Grantham’s testimony indicates rhat Mrs. Pulliam frequently complained about her knee, and she obtained a knee brace or band in April of 1975 which the claimant tried to wear. We have concluded that the testimony of the claimant, when combined with that of Mrs. Grantham and the medical evidence submitted, constitutes substantial evidence to support the decision of the Commission. The claimant had a long period of difficulty with the knee resulting in surgery. Dr. Green said that due to the “overload aggravation secondary to her left knee,” Mrs. Pulliam suffered further disability to the right knee requiring surgery to that joint in 1978. The Commission determined that the . second injury was clearly a compensable consequence of the left knee injury, and that the claimant is still in her healing period inasmuch as she has not yet been released by Dr. Green.

The Workers’ Compensation Commission found that since the knee injury did not become apparent until September, 1977, claimant comes with those circumstances set forth in Donaldson v. Calvert-McBride Printing Company, 217 Ark. 625, 232 S.W. 2d 651 (1950). The general rule is that the time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of his or her injury or disease. See 3 Larson,' Workmen’s Compensation Law, § 78-41 (1976). Whether that rule of law is applicable to a particular case depends upon the facts, and each case must be decided on its particular fact situations. For a discussion of latent injuries tinder the “injury” type' statutes, such as Arkansas has, as opposed to “accident” type statutes, see 3 Larson, supra, § 78.42 (1976). The Arkansas statute provides that a claim for compensation for disability on account of an injury (other than an occupational disease and occupational infection) shall be barred unless filed with the Commission within two years from the date of injury. The term “disability” is defined in Ark. Stat. Ann. § 81-1302(e) as “incapacity because of injury to earn, in the same or other employment, the wages which the employee was receiving at the time of the injury.” In the case before us, appellee did not suffer any incapacity to earn until she missed work for the first time in September, 1977.

Appellants seriously contend that the decision of the Commission awarding benefits is erroneous because in April, 1975, soon after the injury, appellee was provided with a knee brace, at the expense of the appellants, as prescribed by Dr. R. C. Dickinson of DeQueen. The record shows that the knee brace in question was furnished at the request of the company nurse, and was only an elastic bandage costing $2.47. It is true that compensation furnished by the carrier to the claimant, in the form of medical treatments, more than a year before the claim is filed, will bar a claim for additional compensation under the act. However, in the case before us the Commission found against appellants on this contention. There is substantial evidence in the record to support the Commission’s conclusion that the statute of limitations does not apply to this case under the facts. At the time the nurse called Dr. Dickinson, and the elastic knee band was furnished, everyone thought claimant had suffered only a minor injury consisting of a sprained knee. The treatment rendered, including the knee band, was more in the nature of first aid and the Commission refused to recognize such first aid as constituting “compensation” within the meaning of that term. Routine and minor first aid or medical treatment in the employer’s clinic, of the kind that is provided for compensable and non-compensable injuries alike, as a rule does not stand as the equivalent of payment of compensation for the purpose of invoking or tolling the statute of limitations. 3 Larson, supra, § 78.31(d) (1976).

Appellants also point out that Mrs. Pulliam was treated by Dr. Barry Green, an orthopedic surgeon at Texarkana, in August of 1975. The evidence, however, firmly establishes that such treatment was not for the injury to the claimant’s knee. There is substantial evidence in this record, which the Commission believed, to show that Mrs. Pulliam did not see a doctor about her 1975 knee injury, or appreciate the seriousness of her injury, until she went to Dr. Green on September 1, 1977.

Affirmed.


author: Marian F. Penix, Judge.

text:
    FRANKLIN COUNTY ROAD DEPARTMENT and AETNA INSURANCE CO. v. Clifford NORDIN
    CA 80-24
    603 S.W. 2d 477
    Court of Appeals of Arkansas
    Opinion delivered September 10, 1980

      Tatum & Sullivan, P.A., for appellants.
    No brief for appellee.
   Marian F. Penix, Judge.

The Claimant-appellee suffered a compensable injury to his left eye which arose out of and in the course of his employment with the Respondent-appellant. The Claimant was initially injured May 8, 1972 while operating a motor patrol for the Respondent. As a result of this injury, the Claimant’s left eye was operated on and treated. Respondent paid for total loss of the left eye — this payment being completed in June 1975. The Respondents continued to pay medical expenses up to February 2, 1976. On August 26, 1976, the Claimant was operating a road grader for the Respondent, Franklin County Road Department. He pulled into a ditch whereupon a limb shattered the windshield glass which shattered all over Claimant’s face and injured his right eye. The Claimant went to Dr. Joe H. Lyford for treatment of his right eye. Dr. Lyford also examined his left eye. On September 13, 1976, the Claimant had another accident on his grader at which time the mirror broke causing glass to enter the left eye ball. Dr. Lyford removed the glass and administered antibiotic drops to the left eye. On February 25, 1977 the Claimant returned to Dr. Lyford for an examination. At this visit, there was no treatment administered. On June 17, 1977, the Claimant visited Dr. Lyford at which time a loose suture was removed from the left eye. The Respondent-Carrier has refused to pay the medical expenses incurred since February 2, 1976.

The Workers’ Compensation Commission ordered the Respondent-Carrier to pay all the medical bills except those relating exclusively to treatment of the left eye.

The Respondent contends the medical expenses since February 2, 1976 are not related to the original injury and are barred by the Statute of Limitations.

The Claimant testified the Carrier’s claims agent, Lon Flory, told him Aetna would take care of all medical expenses in the future if he needed it on his left eye. Mr. Flory’s letter of June 29, 1973 states: “We will continue to honor all medical expenses incurred as a result of this accident.”

In a June 20, 1977 letter to Claimant from Aetna, the Carrier disclaimed any further liability for medicals:

This is to advise the Statute of Limitations has run on your claim of May 8, 1972. We are returning the attached bills from Arkansas Valley Eye Clinic and Newton’s Pharmacy, since we are no longer responsible for the medical expense on this claim.

Upon receipt of this letter, a claim was immediately filed for the additional medical expenses.

Dr. Richard K. Lovell’s letter of December 29, 1978 stated:

Mr. Clifford Nordin sustained an injury to the left eye in 1972, when a limb struck him while he was at work. He subsequently developed a fungal ulcer of the left cornea with descemetocele and had surgical intervention with conjunctival flap at the University Medical Center, Little Rock, Arkansas. The cornea perforated as did the conjunctival flap and surgery had to be repeated with another flap. The cornea has continued to leak aqueous fluid and he has continued to have a rather large conjunctival bleb which is thin. This bleb has leaked aqueous on two occasions but responded to conservative treatment. I believe the bleb could rupture at any time and I feel there is not enough conjunctiva left for another flap and that would require a corneal or scleral graft.
I also feel that Mr. Nordin should be examined periodically from now on and he should wear a safety glass to protect his other eye.

From the record we find the Respondents were aware the Claimant would require continued medical services by Dr. Lovell and his clinic in the form of regular check-ups and Respondents acknowledged their liability for such continued care. The Respondents had no reason to believe such continued check-ups and treatment would not continue in the manner which had been continuing for approximately four years and they took no action to inform the Claimant of their disclaimer until their letter of June 20, 1977. The bills in question were sent to Aetna and the Claimant was not aware they were not being paid until June 20, 1977. There is substantial evidence to support the finding that the Respondents furnished the Claimant with medical benefits so as to toll the statute of limitations on August 26, 1976, February 25, 1977 and June 17, 1977.

Our role is to affirm the decision of the Commission and in this case the Circuit Court, if the record reflects there was substantial evidence on which the Commission could reach its decision. In the case at hand, we find substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979).

Affirmed.


text:
    Edna A. DAVIS v. C. E. DAVIS
    CA 80-140
    603 S.W. 2d 900
    Court of Appeals of Arkansas
    Opinion delivered September 10, 1980

      W. M. Herndon, for appellant.

      Paul David Fray, for appellee.
   Marian F. Penix, Judge.

C. E. Davis sued Edna Davis for a divorce on April 23, 1979 on the ground of wilful desertion. Edna Davis answered, denying the desertion, seeking the dismissal of C. E.’s complaint and counter-claimed for a divorce on the ground of three years separation. C. E. Davis was awarded a divorce. There was some division of the property. Edna Davis appeals.

I

Edna Davis alleges error in the Court’s granting C. E. Davis a divorce on the ground of desertion.

Ark. Stat. Ann. § 34-1202 authorizes the Chancery Court to grant a divorce to a party whose spouse “wilfully deserts and absents himself or herself from the other for a space of one (1) year without reasonable cause.” In Davenport v. Davenport, 205 Ark. 337, 168 S.W. 2d 832 (1943), the Supreme Court held “reasonable cause” as used in the statute § 34-1202, which would justify one spouse in abandoning the other, means such conduct as could be made the foundation of a judicial proceeding for divorce. In Ledwidge v. Ledwidge, 204 Ark. 1032, 166 S.W. 2d 267 (1942), the Court stated:

Therefore, before the Court would be justified in denying a decree of divorce on the ground of desertion, the spouse who seeks to justify his or her desertion, on the ground of reasonable cause, must prove a ground of divorce which would justify the court in granting him or her a decree of divorce on a cross-complaint.

In order to affirm the granting of a divorce on the ground of wilful desertion, the court must find proof of not only absence of one year but also that this absence was made without reasonable cause.

This is a contested divorce. Therefore, corroboration is required to prove the ground for divorce. Ark. Stat. Ann. § 34-1207. Corroboration must be testimony of a substantial fact or circumstance which leads an impartial and reasonable mind to believe that material testimony as to a vital fact or circumstance is true. Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598 (1973). Corroboration of the complaining spouse’s testimony in a divorce case may be comparatively or relatively slight when it is clear that there is no collusion between the parties. McNew v. McNew, 262 Ark. 567, 559 S.W. 2d 155 (1977). Not every element must be corroborated. McNew, supra; Morgan v. Morgan, 202 Ark. 76, 148 S.W. 2d 1078 (1941). To obtain a divorce on the ground of wilful desertion, however, there must be some corroboration of the lack of reasonable cause for the absence of the defendant spouse. Welch, supra at 88. There is no corroboration as to anything but the time of separation. It was error for the Chancellor to grant a divorce based upon wilful desertion.

On appeal, this court hears Chancery cases de novo. Neal v. Neal, 258 Ark. 338, 524 S.W. 2d 460 (1975); Wiles v. Wiles, 246 Ark. 289, 437 S.W. 2d 792 (1969); Sowards v. Sowards, 243 Ark. 821, 422 S.W. 2d 693 (1968). This is true even if the Chancellor improperly applied the law. O’Neal v. Ellison, 266 Ark. 702, 587 S.W. 2d 580 (1979). An appeal in a chancery case opens the whole case for review, and all the issues raised in the court below are before the appellate court for decision and if the Chancellor is correct for any reason the decision will be affirmed. Ferguson v. Green, 266 Ark. 556, 587 S.W. 2d 18 (1979); Apple v. Cooper, 263 Ark. 467, 565 S.W. 2d 436 (1978).

In the present case, C. E. Davis alleged wilful desertion. This he failed to prove. He did, however, prove three years separation. His witness corroborated the length of time the parties had been separated. No objection was made to this testimony. Therefore, on appeal, the appellate court may regard the pleadings as amended to conform to the proof. Ark. Rules of Civil Procedure 15(b); Faires v. Dupree, 210 Ark. 797, 197 S.W. 2d 735 (1947). We find the complaint to be amended to conform to the proof and award C. E. Davis a divorce based upon three years separation.

II

Edna alleges the Court erred in its division of the property as required by Act 705, Ark. Acts of 1979 [Ark. Stat. Ann. (1947) § 34-1214 (Repl. 1962)]. The Court divided the property as follows:

1. Edna to receive antique chair, two beds, sewing machine, victrola, sofa, china, dressing table, recliner rocker and lawn furniture.
2. Edna to have no claim to the property located in the City of Jacksonville which is owned by C. E. Davis and his father.
3. Parties homestead property on Mundo Road to be held by parties as tenants in common and such property to be in possession of C. E. Davis until he dies or remarries.
4. The sum amount in the Capital Savings and Loan Account No. 40575-8 plus any accrued interest to be divided equally between the parties.

Act 705 reads:

§ 34-1214. Division of Property — (A) At the time a divorce decree is entered:
(1) All marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable, in which event the court shall make some other division that the court deems equitable taking into consideration (1) the length of the marriage; (2) age, health, and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities and needs of each party and opportunity of each for further acquisition, preservation or appreciation of marital property, including services as homemaker. When property is divided pursuant to the foregoing considerations the court must state in writing its basis and reasons for not dividing the marital property equally between the parties.

Since the various marital assets were not divided equally as provided by Section 34-1214, the chancellor was required by that statute to state in writing the basis and reasons for not so dividing the marital property. This was not done. We will not attempt to review the appellant’s contention the court erred in the division of the marital property until the trial court has complied with the requirement of Section 34-1214 by stating the basis and reasons for not dividing the property equally.

We affirm the decree of divorce, but reverse and remand the case for the trial court to make equal division of the marital property between the parties or if such property is not divided equally to state the basis and reasons for not so dividing the property.

The Court failed to mention or provide for disposition of the burial lots and on remand the Court should provide for disposition of same.

Affirmed in part, reversed and remanded in part.


text:
    Marie BRADFORD v. TIMEX CORPORATION
    CA 80-256
    604 S.W. 2d 572
    Court of Appeals of Arkansas
    Opinion delivered September 10, 1980
    Rehearing denied October 15, 1980

      Bud Whetstone and J. R. Nash, by: J. R. Nash, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Marian F. Penix, Judge.

Early in 1977, the Claimant suffered a compensable back injury while employed by Timex Corporation, a self-insured employer. While treated by a neurosurgeon and by an orthopedic surgeon, she received temporary total compensation benefits for four months. Both treating physicians recommended she return to work and she did return July 5, 1977. After her return to work she, of her own initiative, sought medical care from Dr. Joe Lester. However, she testified, she did not feel Dr. Lester helped her condition. She continued to work at Timex until May 18, 1978 when her job was phased out. Timex offered her other employment conditioned upon her correcting her vision by improved glasses. She chose not to do so. In late August 1978, the Claimant sought the care of Dr. John Lohstoeter. Dr. Lohstoeter placed the Claimant in the hospital, performed a myelogram and other tests. He diagnosed her condition as a ruptured lumbar disc and prescribed medication, physical therapy, and traction, holding out the possibility of surgical intervention at a later date. The Claimant sought to have the Respondent pay for Dr. Lohstoeter’s services and also sought additional temporary total disability compensation. The Commission found Claimant’s healing period to have ended July 5, 1977 and disallowed the payment of services to Dr. Lohstoeter, and determined the Claimant is not entitled to additional temporary total disability benefits.

The Claimant contends the Commission was in error is disallowing a change in physicians. She also alleges error in the Commission’s finding the healing period ended July 5, 1977.

Our threshold question is whether there is substantial evidence to support the Commission’s findings.

From the record, we find the Claimant returned to work at the suggestion of Dr. John Christian and Dr. Jim Moore on July 5, 1977. Both Dr. Christian and Dr. Moore had been chosen by the Respondent. Shortly after her return to work the Claimant arranged to see Dr. Joe Lester. His treatment and prognosis were not dissimilar to that of Drs. Christian and Moore. By her own testimony, the Claimant expressed dissatisfaction in Dr. Lester. She did not inform the Commission nor the Respondent she was changing her physician to that of Dr. Lester nor did she ask permission to do so. The Claimant continued to work from July 5, 1977 until May 18, 1978 when her job was phased out. She did not seek Dr. Lohstoeter’s services until August, 1978. When the Claimant visited Dr. Lester she did not follow the procedure required by Ark. Stat. Ann. § 81-1311. Whether her failure to follow required procedure barred her claim or whether the Commission abused its discretion in refusing to allow the physician change are not the pertinent issues before us. Rather the issue is whether there is substantial evidence to support the Commission’s finding the healing period had. ended, thus eliminating the right to a physician change.

In determining whether there was substantial evidence to support the Commission’s findings we look to the record. Whether or not the healing period has ended is a question of fact. The Commission found as a fact the healing period had ended July 5, 1977. The extent of our review is limited. We must resolve all doubts in favor of the Commission and we must affirm its decision if there is any substantial evidence to support it. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979); O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W. 2d 224 (1979).

On July 1, 1977, Dr. John Christian wrote:

I think that Mrs. Bradford. has reached maximum benefit following her back injury at work. I have advised her to return to work and T have released her to do so oil July 5, 1977. She really has no positive neurological findings, and, in fact, very few findings at all.

Three physicians, Dr. Christian, Dr. Moore and Dr. Lester found the Claimant was able to return to work on the date which the Commission found to be the end of Claimant’s healing period. The Claimant chose Dr. Joe Lester. However, she did not ask permission of the Commission nor did she inform the Respondent she was seeing Dr. Lester. Thirteen months later she saw Dr. Lohstoeter. She is not asking for a change of physician to Dr. Lester now, but rather to change to Dr. Lohstoeter and have his services paid for by the Respondent. According to the Rules promulgated by the Commission, there are guidelines to be used in determining whether a change of physicians request should be granted. One of these guidelines is that the request be made prior to the end of the healing period. See Rule 21 of Rules of the Workers’ Compensation Commission.

We find from the record the Claimant voluntarily and successfully bid for a different job in September, 1977 pursuant to the provisions of the collective bargaining agreement with the union. The job did not require her to stand and did allow her to sit at an assembly line. There was testimony from several witnesses that the Claimant did not complain of back discomfort from September, 1977 until May 18, 1978 when her job was phased out. There is evidence the Claimant applied for unemployment benefits and indicated she was able to work. Upon her application for Social Security disability, she was sent to Dr. John Hundley on June 15, 1978. Dr. Hundley’s report concluded: “The degenerative joint disease of the dorsal and lumbar spine is of a physiological nature and does not prohibit her from performing any type of work she so desires.” The record reflects the Claimant was hospitalized in early August, 1978 by Dr. Lewis Tolbert for abdominal pain and discomfort. There was no treatment for her back during this hospitalization. In late August, 1978 Claimant sought Dr. Lohstoeter’s care. On April 2, 1979 Dr. William Blankenship examined the Claimant at the request of the Social Security Administration. His report and prognosis are not substantially different from Drs. Christian, Moore, Lester, and Hundley.

We find substantial evidence to support the findings of the Workers’ Compensation Commission.

Affirmed.


author: George Howard, Jr., Judge.

text:
    Michael HODGES v. PRODUCERS RICE MILL, Stuttgart, Arkansas, and Charles L. DANIELS, Director of Labor
    E 80-3
    603 S.W. 2d 479
    Court of Appeals of Arkansas
    Opinion delivered September 10, 1980

      Norman M. Smith, for appellant.

      Herrn Northcutt, for appellees.
   George Howard, Jr., Judge.

This is an appeal from a decision of the Board of Review affirming the denial of benefits under the Arkansas Employment Security Law, Ark. Stat. Ann. § 81-1106(b) (Repl. 1976) on the grounds that claimant was discharged from his last work for misconduct in connection with the work.

On October 17, 1979, claimant sustained an injury on the job and was permitted by his foreman to check with his personal physician. Claimant returned to his place of employment and advised his foreman that his physician had recommended hospitalization for surgery and that claimant would be hospitalized for a period not exceeding six weeks.

On Thursday, November 15, 1979, claimant’s physician released claimant to return to work and gave claimant a written statement to this effect. Claimant did not report to work either Thursday or Friday of that week, but reported for work on Monday, November 19, 1979, when claimant was dismissed by his foreman on the grounds that, he had missed two days of work without contacting his employer.

We are persuaded that there is not sufficient evidence to support the decision of the Board of Review and accordingly, we reverse the Board of Review.

Claimant testified that he did not return to work on Thursday or Friday because he was realizing intense and excruciating pain from his hemorrhoid operation as a consequence of bowel movement; that in order to get relief, he got in his “bathtub and was soaking” as he had been instructed by his physician. Moreover, claimant testified that he was released to return to work providing “if I was able to.”

It is undisputed that the employer was advised before claimant was hospitalized that claimant would be confined from four to six weeks. It is apparent that the employer was not misled or suffered irreparable harm because of the lack of notice of claimant’s whereabouts. Moreover, it is clear that appellant was released at least two weeks sooner than his doctor had anticipated. The employer did not appear for the hearing before the Appeals Tribunal and, consequently, the testimony of the claimant stands uncontradicted.

We hold that misconduct which precludes benefits under the Employment Security Law contemplates wilful or wanton disregard of an employer’s interest as is manifested in the deliberate violation or disregard of those standards of behavior which the employer had a right to expect from his employees. The evidence falls far short of showing that claimant in this case wilfully failed to return to work on Thursday or Friday during the week of November 12, 1979- See: 146 A.L.R. 243.

Reversed and remanded.


text:
    Judianne WACASTER v. Charles DANIELS Director of Labor
    E 80-51
    603 S.W. 2d 907
    Court of Appeals of Arkansas
    Opinion delivered September 10, 1980

      Appellant, pro se.

      Herrn Northcutt, for appellee.
   George Howard, Jr., Judge.

The central issue for determination is whether claimant refused, without good cause, a position — which did not offer the equivalent pay or hours of a prior position she held with respondent — thus, disqualifying her for unemployment benefits for a period of eight weeks.

The pertinent facts, which are not really in dispute, are:

Claimant was employed by the West Memphis City Library as an assistant librarian prior to December 31, 1979; she was required to work from 10:00 a.m. to 4:00 p.m. on Mondays, Tuesdays, Thursdays and Fridays and from 12:30 p.m. to 5 p.m. on Saturdays, with one Saturday off each month and was required to work four and one-half hours on the first Wednesday of each month, aggregating a total of 28 and 1/2 hours per week; and she received a monthly salary of $560.00. On Saturday afternoons, claimant’s husband babysat while she worked.

On December 14, 1979, claimant was advised by letter that the position of assistant librarian would be terminated, effective December 31, 1979, as a “result of the City’s financial condition.”

Early in 1980, claimant made application for unemployment benefits. The local office of the Employment Security Division denied claimant benefits on the grounds that she was ineligible for benefits under Ark. Stat. Ann. § 81-1106(c) because she had refused an offer of available and suitable work without good cause. The claimant appealed the decision to the Appeals Tribunal. A hearing was held on March 4, 1980, and the Appeals Tribunal affirmed the action of the local office on March 13, 1980. On March 31, 1980, the Board of Review affirmed the decision of the Appeals Tribunal.

Section 81-1106(c), in relevant part, provides:

“. . . [A]n individual shall be disqualified for benefits:
“(c) Failure to work. If he has failed without good cause (1) to apply for available, suitable work when so directed by an Employment Security Division Office or (2) accept available, suitable work when offered. Such disqualification shall be for eight [8] weeks of unemployment. . . .
“(1) In determining whether or not any work is suitable for an individual . . . there shall be considered among other factors, . . . the degree of risk in-involved in his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, the customary occupation, the distance of available work from his residence and prospects for obtaining local work.”

After claimant had made aplication for unemployment benefits, claimant was offered the position of “Children’s Librarian/Assistant Librarian” at the West Memphis Public Library where she was employed previously. This position was made available after additional funds were found to fund it. It is conceded that the position was temporary while her former position was characterized as a full-time one.

The temporary position involved a work week of 32 hours — 11:00 a.m. to 6:00 p.m. on Mondays, Tuesdays, Thursdays and Fridays, and from 12:00 a.m. to 4:00 p.m. every Saturday — while claimant’s previous position required only 28 and 1/2 hours weekly — 10:00 a.m. to 4:00 p.m. on Mondays, Tuesdays, Thursdays and Fridays and from 12:30 p.m. to 5:00 p.m. on Saturdays, except claimant received one Saturday off per month, but was required to work four and one-half hours on the first Wednesday of each month.

The pay under the temporary position was approximately $560.00 per month plus a 7% cost of living index increasement which all city employees were entitled to receive. In other words, under the temporary position, claimant was required to work approximately three and one-half hours per week longer than she worked previously for essentially the same salary since the 1% pay increase was afforded to all city employees.

Claimant rejected the temporary position contending the position was not suitable for the following reasons:

1. Claimant would be required to work three and one-half extra hours each week without a corresponding wage increasement; and,
2. The position was temporary rather than full-time; and
3. Under the temporary position she would be required to work each evening until 6:00 p.m. as compared to 4:00 p.m. previously; and,
4. She would be required to work every Saturday; and,
5. Under her prior employment, her husband babysat on Saturdays, but her husband is now self-employed and, consequently, is unavailable to baby-sit and she would have to employ a baby-sitter.

Before discussing the merits of claimant’s posture in this proceeding, we deem it advisable to mention briefly the purpose and the legislative intent of the Employment Security Law.

Unemployment compensation laws were enacted, during the great depression of the 1930’s, to provide a reasonable and effective means for the promotion of economic security and to assist financially those employees who are involuntarily unemployed because of the reduction of an employer’s work force due to adverse economic conditions. These measures are not designed to penalize employers or reward employees, but to promote the common good or general welfare of the State. More particularly, the goal is to provide protection for employees who are able to work, available for work, but cannot find work.

The Arkansas General Assembly in articulating this humane and beneficient purpose, made the following observation in expressing the legislative intent in adopting Arkansas’ Employment Security Law:

“. . . Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this State. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which may fall with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this great hazard of oun economic life. This can be accomplished by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment from which benefits may be paid for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. ...”

Turning now to the immediate question before us: whether claimant was justified in refusing to accept the temporary position of “Children’s Librarian/Assistant Librarian”, we are persuaded, when considering the overall purpose and objective of the Employment Security Law, she was not.

Unemployment benefits are not for those individuals who are voluntarily unemployed or incapable of working due to illness or family responsibilities which preclude them from accepting employment within their capabilities.

The duty and obligation of an unemployed individual, who had made application for benefits, to accept available and suitable work may exist regardless of whether the work is temporary employment or full-time employment. Moreover, suitability of work does not require that the job offered must be equal in every respect to the prior working conditions, that the pay be equal to or better than the previous wage scale.

The only condition that warrants a claimant from accepting offered employment is for good cause as expressed in the applicable statutory provision. While the term “good cause” may be difficult to define, it seems plain that the term means a justifiable reason for not accepting the particular job offered. In other words, to constitute good cause, the reason for refusal must not be arbitrary or capricious and the reasons must be connected with the work itself. While personal factors may be considered in determining whether there is good cause, they are not controlling or dispositive of the issue. See: 81 C.J.S., Social Security, § 255, p. 508.

In the final analysis, the question of what is good cause must be determined in the light of the facts of each case.

While it is true that claimant, under the temporary position, would have been required to work an additional three and one-half hours per wek or fourteen additional hours per month and would have received the same salary that she received previously, plus a 1% cost of index raise of $39.20 inincreasement per month, we hold that there is a relatively insignificant differential in the increasement in the number of hours and the salary that she would have received under the temporary employment when contrasted with the working conditions of her previous position.

Under the temporary assignment, claimant would have been doing essentially the same type of work that she had done previously for the same employer; the position did not necessitate a change in residence or involve a greater distance to travel.

Claimant is required, under the law, to be available for work whether temporary or full-time in order to receive benefits. She has the burden of proof to show that she has met the conditions of unrestricted availability for work. It is clear that a claimant may not restrict his availability to certain hours, types of work or other conditions not usual or customary in the particular trade. See: 76 Am. Jur. 2d, Unemployment Compensation, § 68, p. 970.

Affirmed.