{ "id": 6650349, "name": "Otis Howard WHITE v. AIR SYSTEMS, INC. and Commercial Union Insurance Companies", "name_abbreviation": "White v. Air Systems, Inc.", "decision_date": "1990-12-26", "docket_number": "CA 90-136", "first_page": "56", "last_page": "60", "citations": [ { "type": "official", "cite": "33 Ark. App. 56" }, { "type": "parallel", "cite": "800 S.W.2d 726" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "18 Ark. App. 18", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136496 ], "weight": 3, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark-app/18/0018-01" ] }, { "cite": "267 Ark. 86", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719781 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/267/0086-01" ] }, { "cite": "31 Ark. App. 230", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141239 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/31/0230-01" ] }, { "cite": "Ark. Code Ann. \u00a7 1", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "21 Ark. App. 68", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137565 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/21/0068-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-711", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "263 Ark. 164", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672606 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0164-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-705", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "26 Ark. App. 51", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136901 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark-app/26/0051-01" ] }, { "cite": "28 Ark. App. 187", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139108 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/28/0187-01" ] }, { "cite": "265 Ark. 365", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664697 ], "weight": 5, "year": 1979, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ark/265/0365-01" ] } ], "analysis": { "cardinality": 368, "char_count": 6501, "ocr_confidence": 0.87, "pagerank": { "raw": 4.651854966801642e-07, "percentile": 0.9273642980729765 }, "sha256": "d388b963d982946f9e2295effcdad40255080c2b2239c8afe58ef394edcc73a7", "simhash": "1:59bc2385d10996b8", "word_count": 1059 }, "last_updated": "2023-07-14T21:06:58.749715+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin, C.J., and Jennings, J., agree." ], "parties": [ "Otis Howard WHITE v. AIR SYSTEMS, INC. and Commercial Union Insurance Companies" ], "opinions": [ { "text": "James R. Cooper, Judge.\nThe appellant in this workers\u2019 compensation case was injured at work on November 17, 1988, and he filed a claim for benefits which was controverted by the appellees. The administrative law judge awarded benefits, and the appellees appealed to the Workers\u2019 Compensation Commission, which reversed the administrative law judge\u2019s award of benefits and denied the claim. From that decision, comes this appeal.\nThe appellant contends that the Workers\u2019 Compensation Commission erred in applying the doctrine of res judicata to portions of the administrative law judge\u2019s opinion. We agree, and we reverse.\nThe record shows that, at the hearing before the administrative law judge, the appellees alleged that the appellant had suffered a prior back injury in 1978, and asserted that the appellant\u2019s claim was barred under Shippers Transport v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979). The Shippers Transport court adopted the rule that false representation as to physical condition in procuring employment will preclude workers\u2019 compensation benefits for an otherwise compensable injury if it is shown that:\n1) the employee knowingly and wilfully made a false representation as to his physical condition;\n2) the employer relied on his false representation, which reliance was a substantial factor in the employment; and\n3) there was a causal connection between the false representation and the injury.\nShippers Transport, 265 Ark. at 369.\nThe administrative law judge found that the appellees had established both the first and the third requirements of the Shippers defense, but failed to establish the second requirement, i.e., the employer\u2019s reliance. The administrative law judge concluded that the claim therefore was not barred under Shippers Transport, supra, and awarded benefits. The appellees filed a petition for a review by the full Commission, stating as grounds that \u201c[t]he findings and award of the administrative law judge are contrary to the law and the evidence, and the administrative law judge erred in his application of the law to the facts.\u201d No petition for cross appeal was filed by the appellant.\nThe Commission, however, confined its review to a single issue. In its opinion, the Commission explained its reasons for doing so as follows:\nThe only issue on appeal before this Commission is whether the respondent has proven by a preponderance of the evidence that it substantially relied upon claimant\u2019s false representation in hiring him; thereby, proving the second element of the Shippers defense. The Administrative Law Judge in his June 30, 1989, opinion, found that the respondent had met both the first and third requirements of the Shippers defense. Neither of those findings was appealed; therefore, they became final and are now res judicata. Since those findings are now res judicata, we will not consider them on appeal. That leaves only the question of whether the respondent has satisfied the second element of the Shippers defense.\nThe Arkansas Workers\u2019 Compensation Commission is not an appellate court. Shippers Transport, supra. It is, instead, the factfinder, and as such its duty and statutory obligation is to make specific findings of fact, on de novo review based on the record as a whole, and to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. See Shippers Transport, supra; Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989); Jones v. Tyson Foods, Inc., 26 Ark. App. 51,759 S.W.2d 578 (1988); Ark. Code Ann. \u00a7 11-9-705 (a)(3) (1987).\nThe Commission\u2019s decision to limit review to the second element of the Shippers defense was wrong for two reasons. First, the doctrine of res judicata applies only to final orders or adjudications, Sikes v. Segers, 263 Ark. 164, 563 S.W.2d 441 (1978), and the filing of a petition for review with the full Commission within 30 days prevents the order of the administrative law judge from becoming final. Ark. Code Ann. \u00a7 11-9-711(a)(1) (1987).\nSecond, the petition for review filed by the appellees did not limit the issues to be presented to the Commission: instead, the issue before the' Commission, as presented in the petition for review, was whether \u201cthe findings and award of the administrative law judge are contrary to the law and the evidence.\u201d Although the Commission has the statutory authority to require that parties specify all the issues to be presented for review, McCoy v. Preston Logging, 21 Ark. App. 68, 728 S.W.2d 520 (1987), it also has the statutory duty to decide the issue before it on the basis of the record as a whole, Ark. Code Ann. \u00a7 1 l-9-704(c)(2) (1987), and to decide the facts de novo. Tyson Food, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). The petition for review in the case at bar called into question the administrative law judge\u2019s award and all the findings on which it was based. Although the appellant did not file a petition for cross appeal as he was permitted to under Ark. Code Ann. \u00a7 11-9-711 (1987), no cross appeal was necessary because the appellant had prevailed before the administrative law judge and sought no affirmative relief before the Commission. See Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979).\nWhen compensation is denied, the Commission must make findings sufficient to justify that denial. Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986). All of the administrative law judge\u2019s findings were before the Commission for de novo review in the case at bar, and we hold that the Commission\u2019s finding that the appellees proved the element of employer\u2019s reliance under Shippers Transport, supra, was, by itself, insufficient to justify denial of compensation. When the Commission fails to make specific findings upon which it relies to support its decision, reversal and remand of the case is appropriate, Wright v. American Transportation, supra, and, accordingly, we reverse and remand. Given our resolution of this issue, we find it unnecessary to address the second argument advanced by the appellant.\nReversed and remanded.\nCorbin, C.J., and Jennings, J., agree.", "type": "majority", "author": "James R. Cooper, Judge." } ], "attorneys": [ "Melissa E. Smith, for appellant.", "Daily, West, Core, Coffman & Canfield, by: Eldon F. Coffman and Douglas M. Carson, for appellees." ], "corrections": "", "head_matter": "Otis Howard WHITE v. AIR SYSTEMS, INC. and Commercial Union Insurance Companies\nCA 90-136\n800 S.W.2d 726\nCourt of Appeals of Arkansas Division II\nOpinion delivered December 26, 1990\nMelissa E. Smith, for appellant.\nDaily, West, Core, Coffman & Canfield, by: Eldon F. Coffman and Douglas M. Carson, for appellees." }, "file_name": "0056-01", "first_page_order": 78, "last_page_order": 82 }