author: Ernie E. Wright, Chief Judge. M. Steele Hays, Judge, George Howard Jr., Judge,

text:
    John F. TURNER, Jr. v. TRADE WINDS INN and HARTFORD INSURANCE COMPANY
    CA 79-73
    592 S.W. 2d 454
    Opinion delivered December 12, 1979
    Rehearing denied January 16, 1980
    Released for publication January 16, 1980

      Estes, Estes & Estes, for appellant.

      Daily, West, Core, Coffman & Canfield, by: Eldon F. Coffman, for appellees.
   Ernie E. Wright, Chief Judge.

This is an appeal from a decision of the Workers’ Compensation Commission denying appellant’s claim for attorney fees and penalty incident to hospitalization expenses appellant contends were controverted.

The appellant sustained a compensable injury to his right hip on January 19, 1976. The appellees accepted the injury as compensable, have periodically paid statutory benefits and have paid medical expenses in the amount of $75,140.95. The appellant is a hemophiliac and has been in the hospital and treated at the emergency room on a number of occasions since the injury. During some of these hospitalizations the appellant has incurred some expenses for treatment unrelated to the compensable injury.

The hospital bills here relevant were incurred at Sparks Medical Center in Fort Smith and are as follows:

May 9 to May 13, 1978, $4,403.55
June 12 to June 19, 1978, $9,590.70
July 20 to July 24, 1978, $5,949.40.

On May 31, 1978, the compensation carrier’s claim supervisor wrote Sparks concerning the bill from May 9 to May 13, acknowledging receipt of the bill, stating some of the charges did hot appear related to the injury, and requested a copy of the patient’s chart for review in connection with the bill. The letter stated if there was no authorization on file for release of the information to please advise immediately. On June 5, 1978 the hospital accounts representative called the claim supervisor and advised she would require a signed medical release before she could release the requested information. On July 14,1978 the claim supervisor wrote appellant’s attorney of record stating the insurance carrier had received bills for the May and June hospitalization; that the bills did not contain sufficient information as to what the treatment was for, and enclosed an authorization for the signature of appellant with request that the executed release be returned. The letter also stated attorney for appellant would be furnished with copies of reports obtained.

The release was not returned, and on September 18, 1978 appellant’s attorney requested a hearing with reference to the bills.

After the hearing it was agreed no compensation payments were in arrears and the matter proceeded to hearing on the issue as to whether the bills were controverted.

The judge found appellees had not expressly controverted the hospital bills, but the delay in paying the May hospital bill was such as to constitute controversion, allowed maximum attorney fees as to that item and denied appellant’s claim for penalty under § 81-1319(e) and § 81-1319(f).

On appeal the Workers’ Compensation Commission in a comprehensive opinion found respondents had never at any time denied liability for the bills, never filed any intention to controvert with the Commission as provided by Ark. Stat. Ann. § 81-1319 (d), but to the contrary found appellant admitted respondents told him to send them the bills and they would pay them, and that a claim for payment of the bills was never filed with the Commission. The Commission disallowed any attorney fee or penalty.

The claim supervisor for the carrier testified he made the decision to withhold payment of the three hospital bills until they could obtain clarification as to whether the bills were injury related. The appellant’s attorney supplied the appellee insurance carrier with copies of hospital medical records on October 20, 1978, only three working days prior to the hearing, and delivered the appellant’s medical information release to the appellee insurance carrier on the day of the hearing. Upon securing the medical information the appellee insurance carrier agreed to pay the three bills except for items totaling $121.00. Appellant’s attorney never offered any explanation for ignoring the request of the compensation carrier to be furnished medical release authorization except to assert at the hearing a medical release had previously been provided. The prior release had been filed with the hospital some two years earlier; however, for some reason the hospital was not acting pursuant to that request in providing information as to these bills.

On appeal from the Commission the appellant contends the Commission erred in finding all three claims were not controverted and in failing to award attorney fees under § 81-1332 and a six per cent penalty under § 81-1319 (e).

The rule is well settled that the findings of the Workers’ Compensation Commission will not be disturbed on appeal if supported by substantial evidence. In determining whether there is substantial evidence to support the findings of the Commission, we need only consider the evidence, even though contradicted in whole or part, which is most favorable to the appellee. Stephens & Stephens, et al v. Logan, et al, 260 Ark. 78, 538 S.W. 2d 516 (1976).

The evidence shows the hospital declined to provide hospital medical records to appellees without a new release authorization from appellant. Appellees were entitled to this information to determine whether the items in the bills were related to the compensable injury. The compensation carrier requested the release through appellant’s attorney by letter dated July 14, 1978. A release was not provided until October 24, 1978, the date of the hearing. Appellant’s attorney provided appellees with medical information on October 20, 1978 and appellees agreed to pay these bills with a few minor exceptions not here in issue.

There is substantial evidence to support the Commission’s findings that appellees had not controverted any of the three hospital bills; that appellant failed to give a good account as to what action he took with reference to the bills; that attorney for appellant failed to cooperate with the appellees in providing the medical information release; and that the hospital failed to help facilitate processing of the bills.

The Commission held the circumstances in evidence placed the issues within the scope of the holding in Horseshoe Bend Builders v. Sosa, 259 Ark. 267, S.W. 2d 182 (1976), that mere failure of an employer to pay compensation benefits does not amount to controversion, and that this especially is true when the carrier accepts the injury as compensable and is attempting to determine the extent of disability. Here the carrier was attempting to determine the extent of its liability as to the items in the three hospital bills.

The Commission was correct in holding that the penalty provision of § 81-1319 (e) applies only to disability benefits and has no application to medical bills, and there is substantial evidence to support the finding the bills were not controverted.

Affirmed.

Hayes, J., concurs.

Howard, J., dissents.

M. Steele Hays, Judge,

concurring. Were it not for the finding by the Commission that appellant contributed to the delay, a point in dispute, I would join Judge Howard in dissenting, as I am persuaded that the Respondent controverted payment of the May, 1978, hospital bill by withholding payment. Certainly, the Respondent had every right to investigate the items charged by the hospital to satisfy itself that they were proper; however, a suspicion arises that Respondent withheld payment for reasons going beyond the reason stated, i.e., the lack of a current medical authorization. In view of Clark v. Peabody Testing Service, 265 Ark. 489 and American Casualty Co. v. Jones, 224 Ark. 731, I cannot justify a finding on my own that this is what occurred, in the face of a finding by the Commission to the contrary, although the testimony satisfies me that payment was withheld for other reasons.

For what it might be worth, Respondent could have clarified its position quite simply by writing promptly to either the Commission or to claimant’s attorney, or both, to state the reason payment was withheld and avoided the delay and the fall-out by doing so.

George Howard Jr., Judge,

dissenting. I am persuaded that the evidence in this record supports the Administrative Law Judge’s finding that the delay on the part of appellee, Hartford Insurance Company, in paying a hospital bill of $19,943.65 constituted controversion, thus, entitling claimant’s attorney to a fee.

The majority in affirming this case and concluding that there is substantial evidence to support the Full Commission’s holding that the appellee did not controvert the hospital bills made the following observation:

The claim supervisor for the carrier testified he made the decision to withhold payment of the three hospital bills until they could obtain clarification as to whether the bills were injury related. The appellant’s attorney supplied the appellee insurance carrier with copies of hospital medical records on October 20,1978, only three working days prior to the hearing, and delivered the appellant’s medical information release to the appellee insurance carrier on the day of the hearing. Upon securing the medical information the appellee insurance carrier agreed to pay the three bills except for items totaling $121.00. Appellant’s attorney never offered any explanation for ignoring the request of the compensation carrier to be furnished medical release authorization except to assert at the hearing a medical release had previously been provided. The prior release had been filed with the hospital some two years earlier; however, for some reason the hospital was not acting pursuant to that request in providing information as to these bills.
The evidence shows the hospital declined to provide hospital medical records to appellees without a new release authorization from appellant.

But a careful scrutiny of the record reflects the following:

The claim supervisor for the carrier testified:

Q. Would it be a fair statement of fact to say that you are the person who is — makes the decision to pay or not to pay these bills?
A. Yes, sir, that would be a fair statement.
Q. Would it be a fair statement of fact to say that these bills weren’t paid as of September 18th, the date of requesting this hearing?
A. That’s correct.
Q. Could it be a fair statement of fact to say that you made that decision not to pay them?
A. Yes, sir.

While the claim supervisor for the carrier stated that he had received a call from the hospital stating that the hospital did not have a medical authorization on file and that he had requested his attorney (Mr. Coffman) to communicate with claimants’ attorney (Mr. Estes) for a medical authorization, the claim supervisor testified:

Q. Did you tell Mr. Coffman that you needed a medical authorization because you didn’t have one the hospital would accept?
A. No.
Q. Did you tell Mr. Coffman that you needed a medical authorization because you didn’t have an up-to-date medical authorization that the hospital would accept?
A. I believe that’s more in line with what I told him, that’s correct.
Q. But you did have a medical authorization, didn’t you?
A. I had a two-year-old medical authorization, that’s correct.
Q. And that medical authorization has been used by The Hartford as recent as May 9th of 1978, hadn’t it?
A. Evidently, it has.

It is plain from the record that on March 2,1976, following claimant’s injury on January 19, 1976, the claimant executed the following medical authorization on a form supplied by Hartford Insurance Company:

To whom it may concern:

I hereby request and authorize you to disclose, whenever requested to do so by THE HARTFORD INSURANCE GROUP or its representative, any and all information you may have concerning John F. Turner, Jr. with respect to any illness or injury, medical history, consultation, prescription or treatment, including x-ray plates, and copies of all hospital records. A photostatic copy of this authorization shall be considered as effective and valid as the original.

The claim supervisor testified further:

Q. So, Mr. Scott, it’d be a fair statement of fact to say that you’ve had this medical release available to you, wouldn’t it?
A. Well, it’s been maintained in our files, yes, sir.
Q. You had it available to you, didn’t you, just answer my question.
A. Yes.
Q. And you could have used that medical release to determine whatever you wanted to determine about these bills, couldn’t you?
A. I’m not sure if I could have or not.
Q. Did you try — did you try to —
A. I was advised by Sparks that I couldn’t get the requested information without an authorization.
Q. Did you have an authorization?
A. I had one dated probably over two years prior to the time I needed it.
Q. Did you take that medical authorization to Sparks?
A. No I did not.
Q. Did you provide them with a copy through the mail ?
A. No I did not.
Q. Did you tell Mr. Coffman I don’t have a medical release?
A. I don’t recall exactly what I said specifically, I was asking.
Q. Let me ask you this what was your explanation to Mr. Coffman in requesting a medical release?
A. That I didn’t have an authorization I felt that the hospital would accept.
Q. Okay. So, you told Mr. Coffman that you didn’t have an authorization that the hospital would accept, is that right?
A. That’s correct.

It is clear that the claim supervisor merely assumed that the medical authorization given by claimant on March 2, 1976, was unacceptable to the hospital for there is no evidence that the hospital refused to accept this authorization. Consequently, the claim supervisor persisted in requiring a new medical authorization not because the hospital wanted an up-to-date one as found by the majority, but, on the contrary, on the assumption of the claim supervisor that the hospital would not honor the authorization in his possession. Another parallel paradox in this matter is the claim supervisor’s admission, in effect, that the hospital had honored the medical authorization of March 2, 1976, as late as May 9, 1978.

Under these circumstances, I cannot support the posture taken by the majority in finding that the Commission’s holding is supported by substantial evidence — evidence possessing substance and authenticity which reasonable minds might accept as adequate to support a conclusion — therefore, I dissent.


source: Caselaw Access Project

author: Ernie E. Wright, Chief Judge.

license: Public Domain

text:
    Howard Lee NASH v. STATE of Arkansas
    CA CR 79-77
    591 S.W. 2d 670
    Opinion delivered December 12, 1979
    Released for publication January 9, 1980

      Kenneth C. Coffelt, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

The appellant was charged with a felony for delivery of a controlled substance, heroin, in violation of Ark. Stat. Ann. § 82-2617. At the end of trial before the court, without a jury, he was found guilty as charged and punishment fixed at 10 years imprisonment with 7 years suspended and 5 of those years on probation.

For the first point of reversal appellant contends the court erred in admitting in evidence an envelope and contents which allegedly was the substance purchased from appellant by a narcotics detective, Mr. Hanna, of the Little Rock Police Department. Mr. Hanna testified in substance that he asked appellant on May 23, 1978 if he could supply him with some heroin. Appellant said he could supply him with two $50.00 packages. The appellant left and returned in a few minutes with two tinfoil packets containing a brown powder and the witness paid appellant $100.00. Upon returning to the office the witness “paramedically” [sic] sealed the substance in an envelope, and placed the date and his initials thereon. He recognized the envelope offered as State’s Exhibit 1 as the same envelope. The envelope now contains a tinfoil packet and a glass bottle containing a brown powder substance.

Mr. Morris, a Federal narcotics officer, testified in substance that he saw Officer Hanna initial and seal the envelope and after also initialing it the witness mailed it the next day by registered mail, return receipt requested, to the Drug Enforcement Administration Analytical Laboratory, Miami, Florida, and the receipt was later returned; that he later received the envelope in a sealed condition by registered mail on March 9, 1979; that when returned, the envelope contained one foil packet and one bottle containing a brown powder substance; and that the envelope appeared substantially in the same condition as when mailed. The witness brought the envelope marked State’s Exhibit 1 to court.

Mr. Kisser, a chemist for the Drug Enforcement Administration testified in substance that he recognized State’s Exhibit 1 and that his name arid date appeared on the bottom of the envelope; that when he received the envelope on May 30, 1978 it was sealed and the seal did not appear to be disturbed; that it contained two tinfoil packets containing brown powder; he cut the packet open, removed arid analyzed the substance; that when he finished he placed the powder in a bottle and put it and the remaining, exhibit back into the envelope and put his seal thereon and heat sealed the envelope. That the powder consists of 1.0 percent heroin hydrochloride and other drugs. The witness returned the envelope to the evidence custodian and the envelope appears still intact. When mail comes into the office at Miami the evidence custodian generally takes charge of it, delivers the paper work to the witness’ supervisor, the supervisor assigns the paper work to the witness and the witness obtains the evidence from the evidence custodian; the witness is the second one that takes custody of the evidence. The evidence custodian is Larry Robins, and he is not present in court.

Counsel for appellant moved to strike the evidence and contended a proper foundation had not been laid for receiving the evidence and that the witnesses were unable to testify as to a complete chain of custody. Appellant also moved for a directed verdict of acquittal.

From the evidence the trial judge was warranted in concluding there was little likelihood the exhibit had been tampered with and absent evidence indicating tampering the ruling of the trial judge should not be reversed. There was a complete absence of any evidence suggesting or indicating that the evidence had been tampered with! Minor uncertainties in the chain of custody of physical evidence do not render the evidence inadmissible as a matter of law. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978); Wickliffe v. State, 258 Ark. 544, 527 S.W. 2d 640 (1975).

After the judge had found the appellant guilty as charged, sentencing was passed for ten days and appellant and the State.were afforded opportunity to place whátever background information might be helpful in fixing the sentence. At sentencing, the judge announced he had received letters from the College Station Progressive League, the Urban League of Greater Little Rock, Leadership Roundtable Association, the E.O.A. and the Arkansas Black Caucus on behalf of appellant and that oh the other hand he had received a memorandum from the Little Rock Police Department and one. from the Department of. Justice, both indicating files in their office showing information from confidential sources linking the appellant to distribution of heroin. The judge offered to show these reports to counsel for appellant and announced he was going to take into consideration the favorable reports on behalf of appellant, and stated he recognized the information from the Police Department and the Department of Justice as hearsay. No objection was made at sentencing to the consideration of the background information in connection with sentencing.

Several days after sentencing appellant filed a motion for a new trial and alleged error in admitting the testimony of the chemist and State’s Exhibit 1, and error in the court considering background information furnished the trial judge by the Police Department and the Department of Justice incident to sentencing. The motion was overruled and on appeal appellant contends the trial court erred in failing to grant a new trial.

Ark. Stat. Ann. § 41-804 authorizes the trial court to order a pre-sentence investigation before imposing sentence and provides that the investigation may be conducted by a pre-sentence officer or other persons designated by the court and that the investigation should include an analysis of the circumstances surrounding the commission of the offense, the defendant’s history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, personal habits and any other matters that the investigator deems relevant to the court or the court directs to be included. See also Rule 36.4.

If the background information had been placed before the trial court before the finding of guilty we would agree with appellant it would be serious error. However, as is indicated by § 41-804, it is proper for the court to consider numerous relevant factors incident to the fixing of punishment, and the record does not demonstrate appellant’s constitutional rights are infringed by the background information placed before the court in connection with sentencing. It is pointed out in A.B.A. Sentencing Alternatives and Procedure 206, (approved Draft 1971) that a pre-sentence investigation report should be available to the judge before sentencing.

Before pronouncing the sentence, the court informed appellant, as required by Ark. Stat. Ann. § 41-804 (4), of the content of the information presented by the State. The appellant made no objection and did not request an opportunity to controvert the information. As is noted in the comment under § 41-804, the defendant does not have the right to confront the witnesses against him on matters incident to sentencing. See Nolan v. State, 265 Ark. 764, 580 S.W. 2d 957 (1979).

Finding no reversible error, we affirm.


author: M. Steele Hays, Judge.

text:
    DOYLE’S CONCRETE FINISHERS, et al v. Jo Ellen MOPPIN, Guardian, et al
    CA 79-41
    596 S.W. 2d 1
    Opinion delivered December 12, 1979
    Affirmed by Supreme Court March 3, 1980
    Released for publication March 26, 1980

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellants.

      W. Q. Hall, for appellees.
   M. Steele Hays, Judge.

This is a Workers’ Compensation case. The single issue presented is: whether a minor child of a deceased worker, whose death is the result of a work related injury, is entitled to the maximum compensation rate under the Worker's’ Compensation Act as a matter of law, or entitled only to the extent to which the minor child is actually dependent upon the deceased parent.

The facts are not in dispute: James H. Moppin and Jo Ellen married in 1967 and had one child, Brad Moppin, aged six years. In February of 1976 they were divorced and child support of $108 per month was ordered in the decree. In July of 1976, James Moppin was killed, and a claim for benefits under the Workers’ Compensation Act was filed by Jo Ellen Moppin on behalf of Brad Moppin.

The contention of claimant was that Brad Moppin was entitled to the maximum benefits ($77 per week) as a matter of law. Respondent contends that claimant was entitled to no more than $108 per month on behalf of her minor son, that being the amount of child support decreed in the Moppin divorce case.

In the hearing below, claimant elected to stand on the contention of entitlement to the maximum benefits as a matter of law and offered no proof of dependency of the minor child. Respondent called Mrs. Moppin to the stand, and some information regarding her social security benefits, employment history, health, wage levels and earnings was provided. Mrs. Moppin testified that Mr. Moppin had, at different times, provided clothes, gifts, and some food and baby sitting in addition to the child support, and that he had given her money, paid medical expenses and had provided a horse to Brad and paid the expenses. By stipulation her 1975 & 1976 federal income tax returns were added to the record. Relying on the opinion of the Workers’ Compensation Commission in the case of Cole v. Roach Manufacturing Company, W.C.C. No. C607399, filed on September 18, 1978, the Administrative Law Judge held that as a matter of law the dependent minor was entitled to the maximum benefits under the Act. The Full Commission affirmed in an opinion filed on June 28,1979, and although it refrained from couching the award of maximum benefits “as a matter of law” that conclusion is inescapable for the reason that it affirmed the decision of Administrative Law Judge “in its entirety.” Respondent appeals to this court, alleging that the Commission erred in deciding that a minor child is dependent upon a deceased parent as a matter of law and not subject to the partial dependency provisions of the Workers’ Compensation Act.

The dependency provision of the Act appears in Ark. Stat. Ann. § 81-1315. Prior to the adoption of Act 1227, Extended Session of 1976, the benefits were payable to persons “wholly dependent” upon the deceased employee. The statute reads as follows with the 1976 changes appearing in capital letters:

(c) [Beneficiaries — Amounts.] Subject to the limitations as set out in Section 10 [§ 81-1310] of this Act, compensation for the death of an employer shall be paid to those persons who were wholly AND ACTUALLY dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference:
First. The widow if there is no child, thirty-five per cent (35%), and such compensation shall be paid until her death or remarriage. PROVIDED, HOWEVER, THE WIDOW SHALL ESTABLISH, IN FACT, SOME DEPENDENCY UPON THE DECEASED EMPLOYEE BEFORE SHE WILL BE ENTITLED TO BENEFITS AS PROVIDED HEREIN.
To the widower if there is no child, thirty-five per cent (35%), and such compensation shall be paid during the continuance of his incapacity or until remarriage. PROVIDED, HOWEVER, THE WIDOWER SHALL ESTABLISH, IN FACT, SOME DEPENDENCY UPON THE DECEASED EMPLOYEE BEFORE HE WILL BE ENTITLED TO BENEFITS AS PROVIDED HEREIN.
Second. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen per cent (15%) on account of each child.
Third. To one child, if there is no widow or widower, fifty per cent (50%). If more than one child and there is no widow or widower, fifteen per cent (15%) for each child, and in addition thereto, thirty-five per cent (35%) to the children as a class, to be divided equally among them.

Appellee relies largely on two decisions dealing with the cited section of the Act: Holland Construction Company v. Sullivan, 220 Ark. 895 (1952) and Chicago Mill and Lumber Company v. Smith, 228 Ark. 876 (1958). These decisions support the point the appellee asks us to uphold. In Holland a claim for benefits was brought on behalf of a minor son of a deceased father, whose death occurred after the minor son had been legally adopted by other parents. The deceased worker had been contributing nothing whatever to the minor. The Commission held that the minor was not entitled to any compensation based on a finding of fact that actual dependency did not exist at the time of death and concluded as a matter of law legal dependency did not exist at the time of death. The Circuit Court reversed the Commission as to the question of dependency as a matter of law, leaving undisturbed the finding of fact regarding actual dependency.

The circuit court’s award of compensation was affirmed by the Arkansas Supreme Court and, thus, compensation was allowed a minor child adopted by other persons, not actually dependent upon the decedent. It seems inescapable that had the partial dependency section been applied to this factual situation the result would have been a determination of entitlement as a matter of law, but with the result that nothing was actually due under the language of the partial dependency provision.

In Chicago Mill and Lumber Company v. Smith, supra, a somewhat similar result was reached in that the decedent was contributing nothing to his widow, minor step child, minor natural child (by a previous marriage) and minor illegitimate child. Compensation was awarded to the three children by the Commission but not to the widow on the theory that she was not actually dependent. The Circuit Court affirmed. The employer appealed the allowance to the children, and the widow cross-appealed the denial of benefits to her. The Arkansas Supreme Court held that the widow as well as the children were entitled to compensation and affirmed as to the children and reversed as to the widow, saying:

It would be possible to construe this provision of the Act [81-1315(c)] as depriving a widow or child of any compensation when, as here, the husband and father was completely void of any sense of his family obligation. But it is a rule that remedial legislation shall be liberally construed. We believe the legislature used the term “wholly dependent” in the sense of applying to those ordinarily recognized in law as dependents, and this would certainly include wife and children.

Hence, in the Chicago Mill case, as in the Holland case, minor children who were neither wholly nor actually dependent upon a deceased parent were held entitled to compensation, and clearly the benefits to which they were found to be entitled could not have come under the partial dependency provision, for the reasons stated.

This leads us to a consideration of the case of Roach Manufacturing Company v. Cole, 265 Ark. 607 (1979), on which the appellant must find footing for the position that the partial dependency provision applies.

We agree with appellant that under the language employed in the Roach case [and, for that matter, in a number of decisions by way of dictum prior to Roach: Kelley v. Southern Pulpwood Company, 239 Ark. 1074 (1965); Sherwin-Williams Company v. Yeager, 219 Ark. 20 (1951); Smith v. Farm Service Cooperative, 244 Ark. 119 (1968)], dependency is a question of fact rather than of law. Nor is it simply a matter of semantics, for appellant argues that the issue is one of fact, and it follows that the partial dependency provision of the Act, supra, applies. If there is support for this argument, it must be found in the Roach decision, for, as we have stated, the rule prior to Roach was clearly contrary to what appellant argues. (See: Holland, supra and Chicago Mills, supra.) But the issue can not be resolved that simply, for the reason that Roach does not provide the answer. In Roach, while the court clearly states the issue of dependency to be one offact, the holding of the case itself affirms the Commission’s award of maximum benefit to a dependent minor who was receiving nothing from the deceased parent — it did so on a finding that there was substantial evidence to support the Commission’s award of maximum benefits to the minor child, who was found to be “wholly and actually” dependent upon the decedent. Thus, in the case before us, a much stronger argument for “actual dependency” exists, inasmuch as the decedént was contributing at least $108 per month under the decree of divorce plus whatever value might be placed upon the additional contributions he was making.

Appellant’s argument has the force of logic, as it would seem the reasoning in Roach leaves it irrefutable that the partial dependency provision must apply whenever a dependent is not totally supported by the deceased parent. But to reach this result would mean doing two things: (1) giving greater effect to the Roach decision than it gave its own result, and (2) concluding that the legislature, by adding the words “and actually,” intended to alter the interpretation of § 81-1315 (c) as to minor dependents, that has prevailed since the inception of the Act, and thereby make a distinction between minor dependents residing with their parents as opposed to those who were not. This would read into the wording of Act 1227 an intent to place minor dependents not residing with the decedent under partial dependency provision. If that were the case, a very drastic change would come about, at least potentially, because the modest amount now provided under § 81-1315 (c), would be lessened substantially. The case before us provides the illustration: under § 81-1315 (c), Brad Moppin, would receive $77 per week, but under the partial dependency section, he would receive (we can only estimate as there are no findings in the record) something approximating one fourth of that amount. The impact of this result on dependent children of deceased workers who are either divorced or merely separated at time of death is such that we are not willing for that end to come about simply by taking what might be said to be the logical followrthrough of the Roach decision, particularly where we think that such a result is clearly not supported by either the legislative intent behind Act 1227 or consistent with the result as reached in the Roach decision.

We think it is entirely conceivable that in certain instances a minor child, whether residing with the parent or elsewhere, may have independent resources and therefore capable of being non-dependent upon a deceased parent for purposes of Workers’ Compensation benefits, and it follows, therefore, that we may depart from the dependency as a matter of law standard and award compensation where the expectation and the need are real or “actual’ ’. It is said to be the “great weight of authority” that dependency is a question offact as opposed to a question of law. Wilson v. Hill, 71 A. 2d 425 (Del. 1950); Koepel v. E. I. Du Pont de Nemours and Company, 183 A. 516.

It is clear that the court in Roach interpreted the language of Act 1227 as reflecting an intent by the legislature to require evidence of actual dependency by both a widow and a minor child, citing Williams v. Edmondson, 257 Ark. 837 (1975). But the court also made an important distinction as between the two (where neither was receiving any actual support) and that distinction is that a minor child continues to have an expectancy of future support which the court found lacking as respects the widow. The eiid resultis this: in Roach, a minor child who was receiving no actual support at the time of injury was awarded maximum benefits under § 81-1315 (c) bécause of her expectancy of future support; in the light of that interpretation we are unwilling to say that a minor actually dependent and receiving support from the decedent is entitled to less than the benefits provided in § 81-1315 (c). Any other result would not be in keeping with the libera] and benevolent spirit of the Workers’ Compensation Act. Triebsch v. Athletic Mining and Smelting Company, 218 Ark. 379 (1951); Batesville White Lime Company v. Bell, 212 Ark. 23 (1947).

We conclude that the decision of the Commission affirming the Administrative Law Judge’s finding that the minor child of James H. Moppin should be affirmed, but such decision is modified by eliminating the words “as a matter of law”, the award being on the basis of substantial evidence that Brad Moppin was actually dependent upon the decedent at the time of death.

Affirmed as modified.


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

text:
    John ELLIS v. CLAYTON SHOE COMPANY
    CA 79-106
    595 S.W. 2d 229
    Opinion delivered December 12, 1979
    Petition for Review denied January 14, 1980
    Rehearing denied February 20, 1980
    Released for publication March 17, 1980

      Sam Boyce, for appellant.

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

This is a Workers’ Compensation case. In April of 1977, claimant, John Ellis, suffered a compensable injury which resulted in the amputation of a part of the index finger of claimant’s left hand between the base of the nail and end of the finger. Claimant was paid 8.75 weeks of permanent partial disability for the loss of one-fourth the index finger.

On May 16,1979, a hearing was held by the Administrative Law Judge to determine whether claimant was entitled to additional permanent partial disability benefits. Claimant alleged that he should have been awarded fifty percent compensation for loss of use to the finger under Ark. Stat. Ann. § 81-1313 (c) (18). He also contended that payments by the respondent, Fireman’s Fund Insurance Company, were controverted because of untimely payments.

The Administrative Law Judge held that (1) claimant was not entitled to any additional permanent disability benefits, and (2) respondents had not controverted payment of any benefits. The claimant appealed the decision to the Full Commission, and the Commission affirmed the judgment. He now brings this appeal.

He first alleges that a preponderance of the evidence indicates a fifty per cent loss of use to the claimant’s left index finger. The Arkansas Workers’ Compensation Act provides for loss of the use of a finger as follows:

Phalanges: Compensation for amputation of the first phalange shall be one-half of the compensation for the amputation of the entire digit . . . [Ark. Stat. Ann. § 81-1313 (c) (18)].

Ark. Stat. Ann. § 81-1313 (c) (22) provides:

Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member shall be for the proportionate loss or loss of use of the member.

Claimant contends that under the law as stated above, he is entitled to fifty per cent compensation for loss of the entire index finger, citing Anchor Construction Company v. Rice, 252 Ark. 460, 479 S.W. 2d 473 (1972) and Springdale Farms v. McGarrah, 260 Ark. 483, 541 S.W. 2d 928 (1976) as supporting authority that the Commission must base its findings of permanent disability on medical testimony and cannot alter the percentage assessed because of wage loss considerations or personal observations.

We agree with this contention by the claimant but, nevertheless, believe the Administrative Law Judge and the Commission made their findings of fact consistent with the medical testimony. Findings of fact by the Commission will not be disturbed on appeal unless unsupported by substantial evidence. Purdy v. Livingston, 262 Ark. 575, 599 S.W. 2d 24 (1977); Mass Merchandise v. Harp, 259 Ark. 830, 536 S.W. 2d 729 (1976). In the instant case, the evidence supporting the Commission’s finding included the diagram of a hand by Dr. Barbour showing the point of amputation to be mid-way between the base of the fingernail and the end of the finger. Also, the claimant’s own testimony in response to a direct question on the matter is consistent with this finding:

Q. “That’s your distal joint or end joint, so the amputation is somewhere between the base of your nail and the end of your finger, is it not?
A. “Yes.” (T. 35)

Appellant also contends that Commission Rule 12 is in conflict with Ark. Stat. Ann. § 81-1313 (c) (18) previously cited in this opinion. Rule 12 provides:

Loss by amputation of half or less than half of the terminal phalange of a member shall be one-half of the loss of the phalange, or one-fourth of the digit. Loss of more than one-half of the terminal phalange of a member shall constitute loss of the phalange, or one-half of the finger. . . Ordinarily, the base ofthe nail may be used as a gauge of half of the phalange . . .

We believe that this rule is not in conflict with the provision in the Act, but simply amplifies it. As it applies to this case, it states that if the loss of use of the terminal phalange is less than one-half, as there is substantial evidence which indicates such, then only compensation for one-fourth of the “digit” will be allowed. This rule enlarges § 1313 (c) (22) which allows compensation for partial loss of a “member” proportionate to the loss actually suffered.

It appears from the record that the actual loss of that portion of the digit as well as the loss of use, to the extent that such losses can be measured, fell almost at the midpoint between entitlement to one-half of the loss under § 1313 (c) (22), as claimant contends, or one-fourth, as found by the Administrative Law Judge. Our own view would be to hold for the claimant in such cases under the rule that doubtful cases should be resolved in favor of the claimant, still, the Administrative Law Judge is in a better position than we to make judgments that are in part based on a visual impression of the affected member itself and we cannot say that his conclusion is not supported by substantial evidence.

Finally, claimant alleges that respondents controverted permanent partial disability benefits paid to the claimant. A medical examination was performed by Dr. M. R. Barbour in October of 1977 at the insurance company’s request. When claimant returned to work, he asked for a payment of permanent partial disability which was not allowed until June of 1978 when the respondent finally received a report from Dr. Barbour.

Respondent explains the delay in part on the fact that Dr. Barbour, of Poplar Bluff, Missouri, discharged claimant in May of 1978 without permanent disability. As to whether Dr. Barbour was aware of the section of our Act dealing with scheduled injuries we need not speculate, as certainly the respondent was aware of that section and that the loss of a sufficient portion of the index finger carried a scheduled benefit.

Over the forty year life span of the Workers’ Compensation Act, the legislature has repeatedly expressed the. public policy in this state as being that claims of working men and women arising from work related injuries shall be handled expeditiously at every stage in the process. In the light of that avowed policy we are unwilling to countenance a delay of eight months in obtaining the simplest sort of evaluation from the treating physician. We reach that conclusion primarily because the physician was not selected independently by the claimant but at the referral of the employer, and presumably was, to some degree, answerable to the respondent. If he is unable or unwilling to give speedier attention to their medical affairs than was evidenced, the burden of that delay should rest upon the respondent, and not upon the claimant.

Respondent argues that the lapse of time should be measured from February (when an A-7 was filed) rather than October, but that begs the question, inasmuch as the record fails to persuade us that the respondent even then showed any diligence in bearing down on Dr. Barbour for the awaited report. The law provides, as it should, that Workers’ Compensation claims be given priority in the judicial process. That being so, is it fitting that a claim should lie dormant for eight months awaiting the physician’s completion of a standard form submitted to him for that purpose which could not have required more than ten minutes to complete? We think not. The Administrative Law Judge, recognized the delay as unreasonably long, and the respondent acknowledged that the delay was regrettable. (T. p. 2). We find that the delay here justified the allowance of afee to claimant’s attorney as provided in the Act under Ark. Stat. Ann. § 81-1332 (Repl. 1976), and therefore hold that claimant’s attorney is entitled to a fee of $200 for purposes of this appeal.

The award of.the lower court is affirmed as modified.

Supplemental Opinion on Denial of Rehearing delivered February 20, 1980

M. Steele Hays, Judge.

Appellee’s petition for rehearing asserts that without statutory or case law authority we have allowed a fee to claimant for legal services on the amount awarded by the Commission. Appellee argues that our decision is contrary to Harber v. Shows, 262 Ark. 161, and Falden Ind. Wiring Co. v. Downs, 255 Ark. 923. Where it was said that “a claim must exist before it can be controverted.” But in Falden, it was the claimant who was in default, not the insurer, who acted with diligence. Additionally, there was a far greater element of uncertainty as to whether the claimant had sustained permanent partial disability. In Harber, the respondent notified the Commission immediately that the claim was accepted and the only reason a hearing was requested was to determine the dependency of the children.

We think the facts in the case before us are governed by Aluminum Company of America v. Henning, 260 Ark. 699 and Horseshoe Bend Builders v. Sosa, 259 Ark. 267. In Henning the court held that a fee was allowable to claimant’s attorney even though the insurer had advised the Commission within the time allowed that it accepted the claim, where the claimant had employed counsel as a result of an earlier denial by the insurer. Citing Sosa, supra and International Paper Co. v. Remley, 256 Ark. 7, the court rejected a mechanical approach in determining whether a claim was controverted and stated that controversion may be a question of fact:

A principal, if not the primary, purpose of determining whether or not a claim is controverted is for the purpose of determining who is liable for the claimant’s attorney’s fees. Making an employer liable for the attorney’s fees of the employee serves legitimate social purposes. Among them are discouraging oppressive delay in recognition of liability, deterring arbitrary or capricious denial of claims, and insuring the ability of necessitous claimants to obtain adequate and competent legal representation.

We pointed out in our initial opinion that we believe a delay of eight months occasioned by a physician chosen by the insurer ought to rest upon the insurer rather than the claimant. Aluminum Company of America v. Henning, supra. Rehearing denied.


author: M. Steele Hays, Judge. David Newbern, Judge.

text:
    James M. EUBANKS v. Charles L. DANIELS
    CA 79-109
    591 S.W. 2d 673
    Opinion delivered December 12, 1979
    Released for publication January 9, 1980

      Pro Se, for appellant.
    No brief for appellee.
   M. Steele Hays, Judge.

This is an appeal from a decision of the Board of Review which affirmed a ruling of the Appeal Tribunal denying claimant unemployment benefits from June 17 to July 18, 1979, because his availability for work was unduly restricted. Specifically, the Appeal Tribunal found that by limiting his search for an employer having a pension plan comparable to his previous employment and to a salary of not less than $235 per week failed to meet the test of what a “reasonably prudent individual would do to secure work”, as defined by Section 4 (c) of the Act.

Claimant testified that he had called his union approximately twice a week, had made two direct contacts and several telephoné contacts from May 22 to July 18 in his efforts to find work.

In light of the evidence in the record that claimant would not accept a salary of less than $235 per week and that he was limiting his efforts to secure work to employers with á pension program (T. p. 11), we are unable to state as a matter of law that the claimant was in compliance with 4 (c), or that there is an absence of substantial evidence in the record to support the decision of the Board of Review. Haun v. Daniels, Director of Labor, 266 Ark. 146 (Ct. App. 1979); Terry Dairy Products Company, Inc. v. Cash, Commissioner of Labor, 224 Ark. 576, 275 S.W. 2d 12 (1955).

We recognize the advantages to the claimant of remaining under a pension plan and we believe that he was justified for a reasonable period of time in giving preference to such a consideration; however,' it seems clear that a reasonably prudent person would at some point lower his sights in seeking employment and inasmuch as claimant had over three months to find the type of work he wanted, at the desired salary of $235 per week, we must agree with the Board of Review’s holding that after that length of time, i.e., thirteen weeks, claimant was unduly restricting his search for employment.

It should be added that we are troubled by the broad language of Section 4 (c) in defining the standard for seeking employment and believe that claimants are entitled to a higher degree of specific guidance in knowing what is expected of them in the way of efforts to secure employment, especially so since they risk the loss of eligibility. It would seem.that some guidelines could be adopted so that a more objective test might be applied.

The decision of the Board of Review is AFFIRMED.

Howard and Newbern, JJ., dissent.

David Newbern, Judge.

I fully agree with Judge Hays’ statement of the need for some sort of standards which could be readily explained to ESD claimants letting them know what factors will determine whether their efforts have been or will be considered to be reasonable. A person such as the appellant in this case who has a legitimate interest in preserving his pension rights in a program to which he has contributed for 20.years can clearly be expected to seek only employment where he may continue to do so. As it stands, he has no way of knowing just how much time will be considered “reasonable” to conduct such a search.

My primary reason for disagreement with the majority here, however, has to do with a procedural point which is not mentioned in their opinion. One of the bases for Mr. Eubanks’ appeal in this case was that he had asked for but never been supplied a copy of the transcript of the hearing held by the.appeals tribunal. Mr. Eubanks appeared before us to argue his case pro se, and at that point he still had not received a copy of the transcript. He was invited by our chief judge to look at the copy which had been brought to the oral argument by the Labor Department Chief Counsel who argued for the Director. Thus while he was trying to listen to what his adversary had to say, he was being given his first look at the record:

If this spectacle did not present clear evidence of deprivation of administrative due process, then nothing could. I refer to, and incorporate by reference the general remarks in my dissenting opinion in Teegarden v. Director, Arkansas Employment Security Division, CA 79-28, which is being handed down today.

Judge Howard joins in this opinion.


text:
    Ernest Lee JACKSON v. STATE of Arkansas
    CA CR 79-86
    591 S.W. 2d 685
    Opinion delivered December 12, 1979
    Released for publication January 9, 1980

      John W. Achor, Public Defender, by: William H. Patterson, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Neal Kirkpatrick, Asst. Atty. Gen., for appelleei
   M. Steele Hays, Judge.

Appellant was charged by felony information with robbery and theft of property. On May 25, 1979, he was tried without a jury and convicted on both counts. He received a thirty year sentence on the charge of robbery and fifteen years on the charge of theft of property. He now brings this appeal.

Appellant first contends that the trial court erred in allowing certain testimony of the State’s chief witness, Ms. Lillian Counts, on the basis that it was inadmissible as hearsay testimony. Specifically, he alleges that Ms. Counts’s testimony concerning an unidentified woman who entered the store while the robbery was in progress was inadmissible for the reason that there was no evidence in the record that related the woman to the robbery. Defense counsel objected to this testimony. The prosecutor attempted to show that the evidence implicated the unidentified woman as a coconspirator and was therefore admissible under Rule 801 (d) (2) (v) of the Uniform Rules of Evidence. The trial court allowed the statement as a present sense impression which is an exception to the hearsay rule under Rule 803 (1) of the Uniform Rules of Evidence.

We believe that the evidence could have been allowed under either rule. It has been held that an accomplice’s statements made during the alleged crime are admissible as statements.of a coconspirator. Foxworth v. State, 263 Ark. 549, 566 S.W. 2d 151 (1978); Ark. Stat. Ann. § 28-1001, Rule 801 (2) (Repl. 1979). The proof of such conspiracy is a question which the court must decide from the facts of each case, and, if the evidence is sufficient, then all the acts and declarations of each conspirator made during the progress of the crime are admissible against a coconspirator. Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972); Cantrell v. State, 117 Ark. 233, 174 S.W. 521 (1915). In this case, the evidence strongly implicated the unidentified woman.as a coconspirator. Ms. Counts stated that she came in while the robbery was in progress, reached over the counter while the robber was tying Ms. Counts’s hands, and took the money out of the cash register. We believe that this was prima facie evidence of the existence of a conspiracy and therefore hold that the trial judge properly overruled appellant’s objection.

Appellant’s second point is that the evidence at trial was insufficient to support appellant’s conviction. Appellant alleges that the credibility of the witness is questionable due to the short time which she had to observe the robber and her testimony which stated that her assailant did not have a beard when, in fact, the appellant had a goatee at the time of the alleged incident. Hence, the appellant states that her positive identification of him as the robber is contradictory since the appellant did have a short beard at the time of the robbery. However, this question clearly addresses itself to the accuracy of identification of the defendant and the credibility of the witness which is solely within the province of the trier of fact. Gray v. State, 252 Ark. 404, 479 S.W. 2d 560 (1972); Smith v. State, 258 Ark. 601, 528 S.W. 2d 389 (1975). Hence, the trial judge’s decision is, accordingly, affirmed.


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

text:
    Alma TEEGARDEN v. DIRECTOR, Arkansas Employment Security Division
    CA 79-28
    591 S.W. 2d 675
    Opinion delivered December 12, 1979
    Released for publication January 9, 1980

      Kenneth R. Smith, for appellant.

      Herrn Northcutt, for appellee.
   James H. Pilkinton, Judge.

This is an unemployment compensation case. The claimant has appealed the determination of the Arkansas Employment Security Board of Review holding her ineligible for benefits under the provisions of the Arkansas Employment Security Act. The agency had first determined that claimant was not considered unemployed. She was a school employee who did not normally work during the summer vacation, and expected to return to her job in the fall. On appeal, the Board of Review found that claimant was, in fact, unemployed within the meaning of the act, but was nevertheless ineligible for benefits under the provisions of Section 4 (c) of the Arkansas Employment Security Law. The Board specifically found that claimant was not doing those things that a reasonably prudent person would do to seek suitable work, as required by the statute.

Section 4 (c) of the Arkansas Employment Security Law provides that claimants will be eligible for benefits if they are unemployed, physically and mentally able to perform suitable work, available for such work, and doing those things that a reasonably prudent individual would be expected to do to secure work. (Emphasis added.)

In Terry Dairy Products Company, Inc. v. Cash, Commissioner of Labor, 224 Ark. 576, 275 S.W. 2d 12 (1955), the Arkansas Supreme Court held that the findings of fact made by the Board of Review in cases of this nature are conclusive on appeal if supported by substantial evidence. Therefore, the question here is whether there is substantial evidence to support the determination of the Board of Review. It is clear from a study of the record that there is such substantial evidence. The record reflects that claimant had worked for the same employer as a teacher’s aide since about 1976. Since that time, the program has been suspended for the summer months only. The program was expected to resume again in early fall of 1979, and the claimant said that she planned and intended to return. However, she also testified that she was currently looking for and would accept other full time work. If she can find suitable work, she might not choose to return to this employer. But the evidence shows she has not worked during the past summers she has been off. It is a very close question, based on this record, as to whether claimant was, in fact, properly considered unemployed within the meaning of the act; however, the Board of Review resolved that issue in her favor, and claimant does not, of course, complain of that ruling. She does complain of the secondary finding of the Board that although “unemployed’ ’ she is still ineligible because of her lack of effort to find work. Claimant-Appellant is now represented by counsel who raises certain procedural points. It is claimed, for example, that appellant came before the hearing referee prepared to prove that she was, in fact, unemployed within the meaning of the act, which she did. Claimant says she understood this to be the only issue on appeal and had no idea the matter of her effort to seek work would also be reviewed. The notice of hearing which claimant received plainly stated, however, that “the hearing (before the referee) may involve any question having a bearing on the claimant’s right to benefits up to time of the hearing”. She had been previously advised of what effort she would be expected to make in seeking suitable employment. It should be noted, too, that claimant was only declared ineligible for benefits from April 30, 1979 up to and including the date of the hearing, June 12, 1979. If there was any misunderstanding about the matter in her mind, surely she was fully informed by the decision below so she could make the required effort, thereafter, if she was actively seeking employment.

If áppellant was misled in any way by the notice of the setting of hearing before the examiner-referee, she still had an opportunity to raise the point before the Board of Review, which she did not do. She did, however, in her request for appeal to the Board of Review submit a detailed list of all contacts she had made since filing her application. In view of this list, which was before the Board of Review, the procedural error, if any, was harmless. Appellant placed before the Board of Review everything she then wished to have in the record. We are at aloss to know what additional evidence she could present on the point (of her efforts seeking work during the period involved) if this case was remanded. Appellant’s counsel has not enlightened us as to what additional facts he seeks to present on remand. Under those circumstances, it would be useless to remand this case for further evidence as to appellant’s effort seeking work during the period involved.

AFFIRMED.

Newbern, J., dissents.

David Newbern, Judge,

dissenting. The appellant was denied unemployment compensation by her local unemployment compensation division (ESD) agency because she was found to be ‘ ‘not unemployed’ ’ within the meaning of § 4 (c) of the Unemployment Compensation Act. Ark. Stat. Ann., 81-1105 (c) (Repl. 1976). She appealed that determination to the administrative appeals tribunal, and the notice to her of the appeal hearing was a printed ESD form which said, “[t]he primary issue involved is:” followed by a space in which was typed, in letters somewhat larger than the printing, “To determine if claimant is unemployed within the meaning of Section 4 (c) of the Arkansas Employment Security Law.” The printed matter resumed at the bottom of the page, approximately one half inch below the typewritten insert: “You are notified that the hearing may involve any question having a bearing on the claimant’s right to benefits up to the time of the hearing.”

At the hearing some questions were asked the appellant by the appeals tribunal referee with respect to her efforts to obtain work during the period she alleged she was unemployed. The referee was the sole determiner of fact and law, there being no other members of the “tribunal.” Without telling the appellant the reason he was asking about the appellant’s efforts to obtain employment or otherwise indicating he was considering a question of the adequacy of her efforts, the referee concluded she was unemployed but had not tried hard enough to find work. The decision of the agency denying compensation was thus effectively affirmed but on a basis entirely different from that invoked by the agency, and with utter lack of meaningful opportunity for the appellant to prepare to defend her claim on that basis.

The appellant thereafter appealed further to the board of review. She sent a handwritten list of places she had sought employment which ended, “and I’ve called other places.”

On another printed, or otherwise mechanically reproduced, forth the board of review simply affirmed the appeals tribunal. No mention was made in the board’s decision or opinion of the appellant’s handwritten submission partially listing places she had sought employment. Nor was any mention made of the switch of bases for denial by the appeal tribunal. We have no idea whether these matters were considered by the board which affirmed with a mechanical reference to “the written record and the previous testimony.”

This appellant has suffered a flagrant denial of fundamental fairness in the assessment of her claim. The majority relies heavily on the “fine print” in the notice to her. Even had the notice to her not directed her most specifically to the issue whether or not she. was “unemployed” within the meaning of the act, the notice would have been too vague and too broad. 1 Davis, Administrative Law Treatise, § 805, p. 530 (1958). Cf., Anderson v. Industrial Commission, 29 Colo. App. 263, 482 P. 2d 403 (1971). See also, Lee v. Brown, 148 So. 2d 321 (La. App. 1963).

Administrative due process requires either proper notice of the issues to be heard or a basis to find an intelligent waiver. Lewis v. Hot Shoppes & Fla. Industrial Commission, 211 So. 2d 20 (Fla. App. 1968). The Supreme Court of Vermont dealt with this question in Kaufman v. Department of Employment Security, 136 Vt. 72, 385 A. 2d 1080 (1978). The claimant had filed for compensation and was refused by a claims examiner and the appeals referee on the ground she had been discharged for misconduct. This was the reason cited by the referee in his notice to the claimant. Subsequently, the claimant appealed to the board of review which determined she had not been discharged for misconduct but rather she left her job voluntarily and without good cause. In reversing the board, the court said:

The hearing before the Board could encompass only the issues framed by the pleadings. The correctness of the claims examiner’s and the appeals referee’s findings that appellant had been discharged for misconduct was the only issue submitted to the Board for its determination. When the board departed from this issue and concluded that appellant’s employment was terminated by voluntary quit without giving notice to the appellant that such a conclusion was being considered, it deprived appellant of the opportunity to make a countervailing argument. This was a denial of a fair hearing. [385 A. 2d at 1082]

Even cases which tend to deemphasize the notice requirement say the entire proceeding must be evaluated from the point of view of fairness to the claimant. Kartsonis v. District Unemployment Compensation Board, 289 A. 2d 370 (D.C. 1971). If the appellant before us was entitled to rely on the specific disqualification found by the agency and stated in the notice to her, the change of issues was unfair. If she was not so entitled, the notice was too broad. Either standard would require reversal in this case.

The majority also emphasizes the partial listing of places to which the appellant had applied for employment. They say this makes error, if any, harmless. We must bear in mind that this appellant, as most others, appeared at the hearing and throughout her quest until she came before the court, without counsel. She needed and was entitled to the assistance of the appeals referee to draw from her a complete presentation of her case. Instead, she received an inquiry with respect to an issue she had little if any reason to expect and a decision of her case outside her presence. Her handwritten missive to the form-prone board of review was a lame substitute for an open inquiry into her overall entitlement to compensation.

I intend this dissenting opinion to apply in several cases other than this one in which I will make reference to it. I chose this case to express my dissatisfaction with these Arkansas ESD practices because it probably is the one case, among several currently before us, which is least objectionable, so the remarks here should apply at Jeast with equal strength in the cases in which I incorporate them by reference.

It is apparently easy for an administrative agency to slip, unintentionally, into a high-handed and complicated procedure in administering the “governmental largess.” Over ten years ago, Charles Reich made the point, with some erudition, that we must treat this form of wealth distribution as affecting and effecting property rights. Reich, The New Property, 73 Yale L. J. 733 (1964). We are hearing ESD appeals mostly in cases where citizens can afford to appeal pro se only. Lest the citizenry lose faith in the substance of the system and the procedures we use to administer it, we can ill afford to confront them with a government dominated by forms and mysterious rituals and then tell them they lose because they did not know how to play the game or should not have taken us at our word.

In 1937 Chief Justice Charles Evans Hughes said:

The maintenance of proper standards on the part of administrative agencies in the performance of their quasi-judicial functions is of the highest importance and in no way cripples or embarrasses the exercise of their appropriate authority. On the contrary, it is in their manifest interest. For, as we said at the outset, if these multiplying agencies deemed to be necessary in our complex society are to serve the purposes for which they are created and endowed with vast powers, they must accredit themselves by acting in accordance with the cherished judicial tradition embodying the basic concepts of fair play. [Morgan v. United States, 304 U.S. 1, 58 S. Ct. 999 (1937)]

Forty two years would seem enough to have learned this small lesson. This case should be remanded to the board for a further hearing with proper notice to the appellant of the questions to be considered.


author: James H. Pilkinton, Judge.

text:
    Willis FULLER et ux v. William H. NORWOOD
    CA 79-149
    592 S.W. 2d 452
    Opinion delivered December 12, 1979
    Released for publication January 16, 1980

      O. W. “Pete” Wiggins, for appellant.

      Henry J. Osterloh and John Lloyd Johnson, Jr., for appellee.
   James H. Pilkinton, Judge.

This is essentially a suit for specific performance of an alleged contract. It is undisputed that Willis Fuller and wife listed their property for sale with J. M. Collins and Company. The realtor found a buyer for the property and William H. Norwood made a conditional offer for the Fuller property which was accepted. The purchaser was unable, however, to obtain a loan as required. The original offer and acceptance was then replaced by a counter offer made by the Fullers to Norwood on April 12, 1979.

The trial court found that the counter offer was accepted by the purchaser on April 13,' 1977. Plaintiff Norwood fulfilled or offered to fulfill all conditions of the counter offer and has been ready, willing and able to close the transaction since April 1977. The court specifically found that defendants Willis Fuller and wife had failed to perform their part of the contract without justification and, under the circumstances, Norwood was entitled to specific performance of the contract. The trial court also found Norwood was entitled to damages of $50.00 per month for loss of rents since June 10, 1977. A decree was entered on these findings and appellants Fullers then lodged this appeal in the Supreme Court of Arkansas. The case has been assigned by that court to the Arkansas Court of Appeals under Rule 29 (3).

1.

Appellant first contends the trial court erred in ordering specific performance. It is argued that this question was not raised below. We find no merit in this argument. At the conclusion of all the evidence, the following occurred:

MR. PURTLE: Your Honor, we make a motion the pleadings be conformed to the truth.
THE COURT: You are asking for specific performance?
MR. PURTLE: Yes.
THE COURT: That will be granted. . . .

The issue was certainly raised and passed on below.

2.

It is next claimed the court erred in finding the appellants had signed the counter offer. The Chancellor made a specific finding on this question, and we quote his exact words:

Just glancing at them (the signatures) it is rather obvious that they are the signatures that all three of them — or that all three documents bear the signatures of Mr. and' Mrs. Fuller. But there is proof— there is overwhelming proof here, beyond a preponderance of the evidence, that the Fullers did sign all of these documents; that is, the listing, the Offer and Acceptance, and the counter offer. And for whatever reason, at a later date, they obviously changed their minds and wished to get out of this contract. Consequently, plaintiffs’ complaint for specific performance will be granted. The parties will go forward immediately with the closing of this transaction and I am going to allow damages of fifty dollars per month as the reasonable rental value of this property from the 10th day of June 1977 up until the time that this transaction is closed forthwith. . . .
For the record, there, is one other thing; there has been an allegation of forgery made in this; the pleadings in this case, and also on the witness stand. Obviously, somebody is not truthful under oath, and for whatever it is worth, I think it is something that perhaps should be turned over to the prosecuting attorney’s office, because somebody is guilty of perjury in this case.

The learned Chancellor was correct. The evidence is more than sufficient to support the finding that Mr. and Mrs. Fuller both signed the counter offer. The Chancellor was also justified in his observation that perjury cannot be tolerated. Judges and lawyers of experience recognize that in most cases application of the law is not difficult provided the court can first determine what the true facts are in the case before them. Behind most miscarriages of justice, when such an unfortunate result does ensue, there are usually one or more lying witnesses who have prostituted the search for truth in that particular case. Fortunately for all concerned, including the public, most judges — like the Chancellor who tried the case now before us — can spot such untrue testimony when it pops up. Perhaps the bench and bar have been too lax, however, in condeming perjury; and in seeing that it is punished.

Appellants alleged forgery of their names on the counter offer as a defense. Therefore, they carried the burden of proof on this point. We are compelled to conclude, as the Chancellor did, that appellants did not sustain the burden of proving this allegation by a preponderance of the evidence. Kennedy v. Couillard, 237 Ark. 353, 372 S.W. 2d 825 (1963).

3.

Appellant argues several other points, all of which are simply variations of the two discussed above. Although we have considered each, we find no merit in any of them. What has been said in disposing of points one and two above applies to the other designated points listed in appellants’ brief.

4.

In addition to the listed and designated points for reversal as contained in their briefs, appellants attempt to argue for the first time on appeal that the land description, contained in the counter offer, is too indefinite and uncertain to support specific performance. Appellants rely on Turrentine v. Thompson, 193 Ark. 253, 99 S.W. 2d 585 (1926), but completely disregard such other cases as Branscum v. Drewery, 232 Ark. 947 at 949, 341 S.W. 2d 6 (1960). Even if we were permitted to consider this after thorough argument, it contains no merit.

We hold the document of April 12, 1977, adequately described the property because it referred to the “Willis Fuller property Section 20, Township 2 South, Range 11 West’ ’. As the trial court was not faced with a question of the adequacy of the description, we would not reverse the decree unless we found the description to be one which could not furnish a “key” to location of the property. Branscum v. Drewery, supra. Cf. James v. Medford, 256 Ark. 1002, 512 S.W. 2d 545 (1974).

5.

We hear this case de novo; and it appears that one modification should be made in the trial court’s decree. Appellants would be entitled to interest on the deferred balance of $8,000.00 from June 10, 1977, until closing at the rate of 9% per annum inasmuch as the Chancellor allowed monthly damages to appellee from June 10, 1977, the date the transaction should have been closed but was not closed. The difference between the interest due, and the accumulated monthly damages, shall be taken into consideration and paid at closing at the same time the deed is delivered and the down payment made.

Except as noted above, the decree entered by the Pulaski County Chancery Court is fully supported by a preponderance of the evidence, and no error whatsoever being called to our attention, this case is affirmed as modified.

Affirmed.


author: Marian F. Penix, Judge.

text:
    Dee Leslie MATHIS, Jr. v. STATE of Arkansas
    CA CR 79-9
    591 S.W. 2d 279
    Opinion delivered December 12, 1979
    Released for publication January 9, 1980

      Gene Worsham, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Marian F. Penix, Judge.

Appellant, Dee Leslie Mathis, was charged with the crime of first degree murder in the slaying of his girlfriend, Patricia Holland. The appellant and Ms. Holland had lived together for approximately one and a half years before her death. Each had a child by a previous marriage living with them. At the time of the occurrence which led to Ms. Holland’s death, both children were present as well as Ms. Holland’s mother, Irma Dennis, and a mutual friend, Carl Eugene Freeman.

The incident occurred January 20, 1978 at the mobile home occupied by the parties. The testimony reflects that Mr. Freeman arrived at the mobile home around 6:30. Ms. Dennis and Ms. Holland were home. The appellant arrived shortly thereafter. The four sat and talked for awhile. Ms. Holland and Mr. Freeman drank some whiskey; the appellant was drinking beer. The appellant was said to be in a good mood.

Ms. Holland decided to go to the grocery store. The road was icy and very slippery. The car became stuck in the driveway. Apparently, attempts to dislodge the car resulted in the transmission being damaged. Ms. Holland returned to the trailer. The appellant went into a bedroom to lie down. Sometime later, Mr. Freeman and Ms. Dennis decided to go to the store in his truck. They went outside. At that point, Ms. Dennis testified, her daughter called for her. She went back into the trailer to find the appellant slapping the deceased. The couple was arguing about the car. Mr. Freeman returned to the trailer. The testimony regarding the next few minutes is confusing.

Ms. Dennis testified the appellant ran to the kitchen and grabbed a gun. She placed herself between her daughter and the appellant. According to Ms. Dennis, the appellant reached around her and shot Ms. Holland. Ms. Dennis said in her opinion the shooting was not accidental. The appellant’s 13 year old son and Mr. Freeman both testified the couple was arguing. They did not know who had the gun. There was a struggle involving the appellant, Ms. Holland, and Ms. Dennis. All three fell onto the couch. The gun went off at that point and fell to the floor. Both Mr. Freeman and the appellant’s 13 year old son believed the shooting to be accidental.

Ms. Holland was shot in the neck. Mr. Freeman and the appellant attempted to transport her to the hospital in Mr. Freeman’s truck. The truck ran out of gas. Ms. Holland died before an ambulance could reach her.

The appellant was found guilty of second degree murder. Due to appellant’s two previous felony convictions, he was charged with being a habitual offender. He received a sentence of fifteen years in the state penitentiary. From that conviction, the appellant has appealed.

The first point argued for reversal is the trial court erred in allowing Irma Dennis to testify as to her opinion on whether or not the slaying was accidental. We do not find this to be error.

Previously, the law did not allow a witness to give an opinion on the ultimate issue to be decided by a jury. Two examples of the application of the old law are found in Jones v. State, 58 Ark. 390 (1894) and George v. State, 148 Ark. 638 (1921). These cases were decided prior to the effective date of the Uniform Rules of Evidence for Arkansas.

Uniform Rule of Evidence 701 permits lay witnesses to testify in the form of an opinion.

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

Uniform Rule of Evidence 704 permits a witness to give his opinion on the ultimate issue to be determined.

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

No longer is opinion testimony viewed as “usurping the function of the trier-of-fact’ ’. The trier of fact considers the opinion along with the other evidence and determines the weight to be attached to the testimony.

The exclusion of opinion testimony has been sharply criticized for a long time. The Uniform Rules of Evidence reflect a response to the criticism and have made changes to correct the problems with former evidentiary rules. The Federal Rules of Evidence were the model for the Uniform Rules of Evidence for Arkansas. The Advisory Committee Notes accompanying Rule 704 reflect the reason for making opinion testimony admissible.

The older cases often contained strictures against allowing witnesses to express opinions upon ultimate issues as a particular aspect of the rule against opinions. The rule was unduly restrictive, difficult of application, and generally served only to deprive the trier of fact of useful information. 7 Wigmore § 1920,1921; McCormick § 12. The basis usually assigned for the rule, to prevent the witness from “usurping the province of the jury,” is aptly characterized as “empty rhetoric”. 7 Wigmore § 1920, p. 17. Efforts to meet the felt needs of particular situations led to odd verbal circumlocutions which were said not to violate the criminal responsibility of an accused in terms of sanity or insanity, but not in terms of ability to tell right from wrong or other more modern standards. And in cases of medical causation, witnesses were sometimes required to couch their opinions in cautious phrases of “might or could,” rather than “did,” though the result was to deprive many opinions of the positiveness to which they were entitled, accompanied by the hazard of a ruling of insufficiency to support a verdict. In other instances the rule was simply disregarded, and, as concessions to need, opinions were allowed upon such matters as intoxication, speed, handwriting, and value, although more precise coincidence with an ultimate issue would scarcely be possible.

The appellant has argued that Uniform Rule of Evidence 704 applies only to testimony by experts. Therefore, the testimony of Ms. Dennis should have been excluded. The Advisory Committee Notes make it clear that Rule 804 applies to any witness — lay or expert.

Not all opinions are admissible. Guidelines for the admissibility of opinions are found in the rules. Rule 701 states the opinion must be helpful to the trier of fact. Under Rule 401, the evidence must be relevant. Rule 403 provides for the exclusion of any evidence which will only waste time. The notes accompanying Rule 704 state:

These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oathhelpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria.

We do not find the testimony of Ms. Dennis to be objectionable for any of these reasons.

The appellant has argued that the opinion testimony of Ms. Dennis was not based on something she could rationally perceive. Only something which can be perceived by the senses is admissible under Rule 701, i.e., speed of a car, sounds she heard. In this instance, Ms. Dennis’ opinion was on the issue of purpose or intent. She was in a position to observe the argument and the struggle. We do not find the appellant’s interpretation of Rule 701 to be correct.

The argument has been made that, because we cannot directly see, hear, or feel the state of another person’s mind, therefore testimony as to another person’s state of mind is based on merely conjectural and therefore inadequate data. This argument is finical enough; but it proves too much, for if valid it would forbid the jury to' find a verdict upon the supposed state of a person’s mind. 2 Wigmore, Evidence, § 661, (Third Edition, 1940).

There are no Arkansas cases which interpret Rule 701. John Hancock Mutual Life Insurance Co. v. Dutton, 585 F. 2d 1289 (5th Cir. 1978) was a civil suit which involved a similar issue. The suit involved the attempt to recover accidental death benefits on a life insurance policy. On appeal, John Hancock argued that this testimony should not have been admitted.

Under John Hancock’s construction, a witness could never testify to his views concerning the feelings of another person. . . _. When, as here, the witness observes first hand the altercation in question, her opinions on the feelings of the parties are based on her personal knowledge and rational perceptions and are helpful to the jury. The Rules require nothing more for admission of the testimony. John Hancock Mutual Life Insurance Co. v. Dutton, supra, at 1294.

See also, United States v. Scavo, 593 F. 2d 837, 844 (8th Cir. 1979).

The evidence reflects there was evidence of a struggle. The witness was in a position to observe. Her observations were rationally perceived. It was helpful to the trier of fact to know whether this eye witness felt the shooting was accidental.

The appellant’s second point argued for reversal is that the trial court erred in refusing to allow the defense to impeach the credibility of one of the state’s witnesses by introducing evidence of her alleged “drug problem”. On cross-examination, the appellant attempted to question Ms. Dennis about a drug problem. Ms. Dennis denied having a drug problem or using any type of drug that had not been prescribed by a doctor. The appellant then asked the judge for a subpoena duces tecum for hospital records. This was denied. The judge also refused to allow the appellant to cross-examine the witness on her drug history. The appellant contends this was reversible error. We do not find this to be error.

On cross-examination on collateral issues a cross-examiner is bound by the answers he receives from the witness and may not impeach his testimony by the introduction of contradictory evidence. Powell v. State, 260 Ark. 381, 540 S.W. 2d 1 (1976); Odom v. State, 259 Ark. 429, 533 S.W. 2d 514 (1976).

The questions asked of Ms. Dennis were collateral to the issue of the trial. The Arkansas Supreme Court set out the test for determining collateral issues in McAlister v. State, 99 Ark. 604, 139 S.W. 684 (1911). This was relied upon in Randall v. State, 239 Ark. 312, 389 S.W. 2d 229 (1965). This determination to be made is whether the cross-examining party would be entitled to prove the issue as part of his case. The determination of whether Ms. Dennis was a drug addict was not an issue which would have been an integral part of the appellant’s case. See also, Brown v. State, 259 Ark. 464, 534 S.W. 2d 207 (1976). We find no error in the second point.

Turning to the appellant’s third point argued for reversal, we find some problems. This was a bifurcated trial. After the jury found the appellant guilty, evidence was then heard regarding his character. Testimony was received which indicated the appellant had two previous felony convictions. The appellant’s employers testified as to his work record and the fact that he had become an assistant manager. The judge held that since the appellant had been convicted of two prior felonies and was considered a habitual offender pursuant to Ark. Stat. Ann. § 41-1001, the alternate fine provisions were not available as possible punishment.

The appellant was convicted of murder in the second degree. This is a class B felony. Ark. Stat. Ann. § 41-901 provides:

(1) A Defendant convicted of a felony may be sentenced to a term of imprisonment: (b) not less than three (3) years nor more than twenty (20) years, if the conviction is of a class B felony.

Ark. Stat. Ann. § 41-1101 provides:

(1) A Defendant convicted of a felony may be sentenced to pay a fine: (a) not exceeding $15,000, if the conviction is of a class A or B felony.

Ark. Stat. Ann. § 41-1001 provides:

(1) A Defendant who is convicted of a felony and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment as follows: (b) not less than five (5) years nor more than thirty (30) years, if the conviction is of a class B felony.

The Commentary to § 41-1001 indicates this section was designed to provide more flexibility in sentencing recidivists. The language does not, however, make a stiffer sentence mandatory. The options should have been made available to a jury. It was for the jury to determine whether to impose a sentence of confinement, a fine, or both.

We find no error in the jury verdict of guilty of second degree murder. This was, however, a bifurcated trial. Since we find error in the second stage, we must reverse and remand for a new trial. The appellant is entitled to have his sentence imposed by the same jury which determines his guilt or innocence. Ark. Stat. Ann. § 41-1005. This is not possible without a new trial. The appellant could, however, permit the presiding judge to consider both possible sentencing statutes and impose the punishment. This is the appellant’s choice.

We therefore reverse and remand for proceedings not inconsistent with this opinion.


author: George Howard, Jr., Judge.

text:
    Sophocles LOVETT v. STATE of Arkansas
    CA CR 79-22
    591 S.W. 2d 683
    Opinion delivered December 12, 1979
    Released for publication January 9, 1980

      Robert B. Gibson, for appellant.

      Steve Clark, Atty. Gen., by: Robert R. Ross, Deputy Atty. Gen., for appellee.
   George Howard, Jr., Judge.

Appellant was convicted on April 5, 1979, by a jury, of criminal attempt to commit rape. The jury assessed a fine of $500.00.

Appellant asserts two points for reversal:

1. The trial court erred in not entering a judgment on the jury’s verdict prior to July 30, 1979 — 116 days after appellant’s conviction.
2. That the trial court erred in ruling that appellant could not introduce evidence relating to an abortion performed on the victim.

Appellant argues that although he was convicted of the charge filed against him on April 5, 1979, the trial court did not enter a judgement on the verdict until July 30, 1979; that appellant filed his notice of appeal ón May 1, 1979, and that appellant, at the time, “was not aware that judgment had not been entered, until after the filing or lodging of the Transcript with the Arkansas Court of Appeals”; and that as a matter of law, there was no judgment from which an appeal could be properly taken. Therefore, argues appellant, the case should be reversed, dismissed and appellant reimbursed of his costs of $714.70.

Rules 36.4 of the Rules of Criminal Procedure provides:

Upon the return of a verdict of guilty, if tried by a jury, or the finding of guilty if tried by a circuit court without a jury, sentence may be pronounced and the judgment of the court may be then and there entered, or sentencing and the entry of the judgment may be postponed to a date certain then fixed by the court, not more than thirty (30) days thereafter, . . . (Emphasis added.)

While Rule 36.4 makes it clear that the sentencing of a defendant and the entry of the judgment may be pronounced immediately, or postponed to a date certain fixed by the court, not more than thirty (30) days thereafter, there is no provision indicating that a failure to observe this stipulation in any way affects the validity of the proceedings resulting in the conviction of a defendant. Furthermore, the word “may” as used in the rule implies permissive or discretional, rather than mandatory, action; and it is construed in a permissive sense unless it can be said that when the provision of a statute is the essence of the thing required to be done, it is mandatory, otherwise, when it relates to form and manner, and where an act is incidental, after jurisdiction is acquired, it is directory merely. Nathan v. State, 235 Ark. 704, 361 S.W. 2d 637 (1962); Dunn v. Dunn, 222 Ark. 85, 257 S.W. 2d 283 (1953). It is plain that Rule 36.4 is directory rather than mandatory.

Moreover, appellant has not shown in any way how he has been inconvenienced or prejudiced by the belated entry of the nunc pro tunc judgment. Inasmuch as appellant sought to appeal from his conviction to this Court, it was incumbent upon him to take the initiative to see that the trial record was complete in every respect in order to enable this Court to entertain jurisdiction and view the proceedings objectively. Without a judgment having been entered, appellant had no basis for an appeal unless it was demonstrated that the trial court has abused its discretion in refusing to enter a judgment. It is clear from this record that when the trial court was advised that judgment had not been entered on the jury’s verdict, the court immediately entered a nunc pro tunc judgment.

In Richardson v. State, 169 Ark. 167, 273 S.W. 2d 367 (1925), our Supreme Court emphasized that it was within the sound discretion of the trial court to enter nunc pro tunc judgments to cause the record to speak the truth in criminal as well as in civil cases.

Finally, appellant argues that he should have been permitted to cross-examine the victim about a trip that she purportedly made to California for an abortion. Appellant stresses that that evidence relating to the abortion was relevant to the issue of consent and the victim’s reputation.

The trial court, in excluding the evidence, stated that his ruling was based in part upon the fact that appellant testified that the child was not his and that appellant had further testified that he gave the victim money to make the trip to California.

The purported attempt to commit rape occurred on June 3,1978, south of Warren on Highway 15, while the purported abortion occurred in September, 1977.

Under these circumstances, we are unable to say that the trial judge abused his discretion in excluding the offered testimony about the alleged abortion. Brown v. State, 264 Ark. 944, 581 S.W. 2d 549 (1979).

Affirmed.