{
  "id": 6138199,
  "name": "Myrna Inez WALLIS v. WHIRLPOOL CORPORATION",
  "name_abbreviation": "Wallis v. Whirlpool Corp.",
  "decision_date": "1984-06-27",
  "docket_number": "CA 84-8",
  "first_page": "101",
  "last_page": "106",
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        6136734,
        6136615
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      "cite": "10 Ark. App. 28",
      "category": "reporters:state",
      "reporter": "Ark. App.",
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        6136615
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  "last_updated": "2023-07-14T22:00:16.322657+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Cooper, Cloning\u00e9r and Glaze, JJ., dissent."
    ],
    "parties": [
      "Myrna Inez WALLIS v. WHIRLPOOL CORPORATION"
    ],
    "opinions": [
      {
        "text": "George K. Cracraft, Judge.\nAppellant Myrna Wallis, an employee of appellee, Whirlpool Corporation, sustained injuries to both wrists on February 9, 1981. Appellant initially filed an application for benefits under her employer\u2019s group health insurance plan, contending that the injuries resulted from a non-job-related fall at home. She maintained that the injuries were non-job-related until about August 19, 1981, at which time she filed for workers\u2019 compensation benefits. Appellee controverted the claim in its entirety and raised the defense of lack of notice as required by Ark. Stat. Ann. \u00a7 81-1317 (Supp. 1983).\nThe administrative law judge held that the injuries to appellant\u2019s wrists had been sustained out of and in the course of her employment with appellee, and that appellee had not been prejudiced by the untimely filing of the claim. However, the law j udge held that appellant was disqualified from receiving benefits because she failed to comply with the timely notice requirements and that no satisfactory reason had been shown by appellant to excuse her from compliance. The full Commission affirmed.\nAppellant\u2019s first point for reversal is that the Commission erred in its interpretation of Ark. Stat. Ann. \u00a7 81-1317, which provides as follows:\n(a) Notice of injury or death for which compensation is payable shall be given within sixty (60) days after the date of such injury or death to the employer, or written notice to the Commission which shall notify the employer immediately.\n(b) Failure to give such notice shall not bar any claim (1) if the employer had knowledge of the injury or death, (2) if the employee had no knowledge that the condition or disease arose out of and in the course of employment, or (3) if the Commission excuses such failure on the grounds that for some satisfactory reason such notice could not be given. Objection to failure to give notice must be made at or before the first hearing on the claim.\nThe Commission found that appellant had not brought herself within the limits of any of the statutory exceptions which excuse a claimant from the responsibility to give notice of injury within sixty days. There was no allegation, and the evidence does not support any finding, that the employer had knowledge of the injury; in fact, the employer was notified that the injury was non-job-related. There is evidence that appellant had knowledge, or belief, that her condition arose out of and in the course of her employment. She testified that she had believed since February 1981 that her inj ury arose ou t of her employment, but was afraid to tell her employer because she had been harassed about a previous claim for workers\u2019 compensation benefits. The third statutory exception gives the Commission discretion to excuse failure to give notice on grounds that for some satisfactory reason such notice could not be given. It was the Commmission\u2019s conclusion that appellant gave no satisfactory reason why the notice could not be given.\nThe court has held that it must review the evidence in the light most favorable to the Commission\u2019s decision. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983). The Commission\u2019s findings will be upheld if there is any substantial evidence to support their action. Hawthorne v. Davis, 268 Ark. 131, 594 S.W.2d 844 (1980). It is our opinion that there is substantial evidence to support the Commission\u2019s finding that the appellant\u2019s reason for not providing notice did not come within any of the three statutory exceptions.\nIt is true that there is evidence that the employer in this case was not prejudiced by appellant\u2019s failure to make a timely report of her injury. However, \u00a7 81-1317, supra, was amended by the legislature in 1979 to remove that part of the section which provided that failure to give a timely notice would not bar a claim if the Commission determined that the employer had not been prejudiced by the failure.\nAppellant next contends that the Commission erred in ignoring her argument that her failure to give the notice should be excused under the provision of \u00a7 81-1343 (Repl. 1976) which enumerates the powers and duties of the Commission, including the power to \u201cexcuse failure to give notice either of injury or death of any employee.\u201d She argues that this section enlarges the provisions of Ark. Stat. Ann. \u00a7 81-1317 (Supp. 1983) and gives the Commission full discretionary power to excuse the failure for reasons other than the three enumerated in the earlier section. Appellee concedes in its brief that \u00a7 81-1343 does have that effect but contends that the Commission did not ignore this section.\nWe need not determine what effect \u00a7 81-1343 has upon the provisions of \u00a7 81-1317. Even assuming that the section does have that effect, we agree with appellee that on the evidence we find no basis for the exercise of that power. It is clear to us that the Commission fully considered appellant\u2019s excuse for failing to give notice and found it insufficient. In its opinion the Commission stated:\nWe have carefully examined the three bases set out in subsection (b) of the statute for excusing failure to give notice, and we find none of them applicable to this case. . .Ark. Stat. Ann. \u00a781-1317 is plain and unambiguous as applied to the facts in this case. In such a, situation we cannot distort the obvious and intendment of the statute by applying the well known and laudable principles of liberal statutory construction operative in workers\u2019 compensation law. [Emphasis supplied]\nThe opinion of the administrative law judge adopted by the Commission contained the following finding and conclusion:\nThe only evidence presented to explain why proper notice of the injury was not given, was the claimant\u2019s own testimony that she intentionally concealed the fact that her wrist condition may have been related to her employment activities until August of 1981 for fear of harassment by her employer. In light of the evidence presented in this case it is my opinion that this has not been sufficiently established to be a. satisfactory reason as to why such notice \u2018could\u2019 not be given. [Emphasis supplied]\nWe find no error and affirm.\nCooper, Cloning\u00e9r and Glaze, JJ., dissent.",
        "type": "majority",
        "author": "George K. Cracraft, Judge."
      },
      {
        "text": "Lawson Cloninger, Judge,\ndissenting. I respectfully dissent. I agree with the majority to the extent that claimant did not come within the exception to the notice requirements of Ark-. Stat. Ann. \u00a7 81-IB 17 (Supp. 198B). It is my contention that Ark. Stat. Ann. \u00a7 81-1343 (Repl. 1976) enlarges the scope of the Commission\u2019s discretion to excuse failure to give notice of injury. The majority states that it agrees with appellee that \u201con the evidence we find no basis for the exercise of that power.\u201d However, that is for the Commission to decide, not this court. I am convinced that the Commission did not consider appellant\u2019s claim in light of \u00a7 81-1343, and I would remand this case back to the Commission with directions that it make such a determination.\nCooper, J., joins in this dissent.",
        "type": "dissent",
        "author": "Lawson Cloninger, Judge,"
      },
      {
        "text": "Tom Glaze, Judge,\nconcurring in part and dissenting in part. I agree with the majority that the Commission did not err in interpreting Ark. Stat. Ann. \u00a7 81-1317 (Supp. 1983). However, I agree with Judges Cloninger and Cooper that the Commission never considered appellant\u2019s second point, viz., although appellant failed to prove grounds under Ark. Stat. Ann. \u00a7 81-1317(b) (Supp. 1983), which would excuse her failure to give notice of her injury to the employer, the Commission may still excuse such failure under Ark. Stat. Ann. \u00a7 81-1343(4) (Repl. 1976).\nIn sum, appellant\u2019s failure to give notice of her injury is no bar to a claim if she had shown any one of the grounds under \u00a7 81-1317(b). All members of this Court agree that appellant failed in her proof under \u00a7 81-1317(b), and in this respect, the Commission should be affirmed. Even though appellant failed in that proof, the Commission still had the discretion to excuse appellant\u2019s failure to give notice under \u00a7 81-1343(4), but the Commission apparently chose not to exercise any discretion it may have under that provision.\nIf this case were remanded, I believe it is obvious that the Commission would not excuse appellant\u2019s failure to give notice to her employer, but it is not this Court\u2019s place to exercise the Commission\u2019s discretion under \u00a7 81-1545(4). Although the judges affirming this cause state the Commission fully considered appellant\u2019s request under \u00a7 81-1343(4), the prevailing opinion recites only findings by the Commission that support its denial of appellant\u2019s claim for her failure to comply with the requirements under \u00a7 81-1317(b). For the reasons stated, I believe this cause should be remanded, directing the Commission to exercise its discretion under \u00a7 81-1343(4).",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "Tom Glaze, Judge,"
      }
    ],
    "attorneys": [
      "James R. Filyaw, for appellant.",
      "Jones, Gilbreath & Jones, for appellee."
    ],
    "corrections": "",
    "head_matter": "Myrna Inez WALLIS v. WHIRLPOOL CORPORATION\nCA 84-8\n671 S.W.2d 760\nCourt of Appeals of Arkansas En Banc\nOpinion delivered June 27, 1984\nJames R. Filyaw, for appellant.\nJones, Gilbreath & Jones, for appellee."
  },
  "file_name": "0101-01",
  "first_page_order": 129,
  "last_page_order": 134
}