{ "id": 6656110, "name": "HARRINGTON CONSTRUCTION CO., et al. v. David WILLIAMS", "name_abbreviation": "Harrington Construction Co. v. Williams", "decision_date": "1994-03-23", "docket_number": "CA 93-239", "first_page": "126", "last_page": "137", "citations": [ { "type": "official", "cite": "45 Ark. App. 126" }, { "type": "parallel", "cite": "872 S.W.2d 426" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "44 Ark. App. 5", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6135992 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/44/0005-01" ] }, { "cite": "21 Ark. App. 29", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136597 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/21/0029-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-703", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 11-9-704", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(b)(1)" } ], "opinion_index": 0 }, { "cite": "40 Ark. App. 190", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139744 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/40/0190-01" ] }, { "cite": "23 Ark. App. 137", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138604 ], "weight": 6, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark-app/23/0137-01" ] }, { "cite": "43 Ark. App. 169", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139939 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "180" }, { "page": "589" } ], "opinion_index": 1, "case_paths": [ "/ark-app/43/0169-01" ] }, { "cite": "830 S.W.2d 859", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "309 Ark. 369", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 1 }, { "cite": "26 Ark. App. 51", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136901 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark-app/26/0051-01" ] }, { "cite": "309 Ark. 365", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906116 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark/309/0365-01" ] }, { "cite": "18 Ark. App. 18", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136496 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "22" }, { "page": "109" } ], "opinion_index": 1, "case_paths": [ "/ark-app/18/0018-01" ] }, { "cite": "1 Ark. App. 44", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136904 ], "weight": 2, "year": 1981, "opinion_index": 1, "case_paths": [ "/ark-app/1/0044-01" ] }, { "cite": "265 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664891 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "495" }, { "page": "362" } ], "opinion_index": 1, "case_paths": [ "/ark/265/0489-01" ] }, { "cite": "237 Ark. 80", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737984 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "81" } ], "opinion_index": 1, "case_paths": [ "/ark/237/0080-01" ] }, { "cite": "23 Ark. App. 137", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138604 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "141" }, { "page": "404" } ], "opinion_index": 1, "case_paths": [ "/ark-app/23/0137-01" ] } ], "analysis": { "cardinality": 871, "char_count": 23121, "ocr_confidence": 0.864, "pagerank": { "raw": 1.333493452170769e-07, "percentile": 0.6295629590759925 }, "sha256": "d793bef3405d52d0e084b67ccfe50492ee6cdfefbdf3933a612da00a389a401e", "simhash": "1:843da00538c8cc1b", "word_count": 3796 }, "last_updated": "2023-07-14T22:09:36.699911+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mayfield, J., dissents." ], "parties": [ "HARRINGTON CONSTRUCTION CO., et al. v. David WILLIAMS" ], "opinions": [ { "text": "James R. Cooper, Judge.\nThe appellee in this workers\u2019 compensation case was employed by Harrington Construction Company as a cement finisher. He filed a claim for benefits contending that he developed contact dermatitis in January 1991 because of his exposure to concrete, and asserting entitlement to temporary disability benefits. Prior to the hearing on the merits of the case, the administrative law judge mailed the employer\u2019s insurance carrier a notice regarding pre-hearing procedures to be followed, including the requirement that certain information be disclosed; the notice stated that failure to do so in a timely manner might result in a party being foreclosed from asserting claims and defenses. Subsequently, the administrative law judge entered an order finding that the employer\u2019s insurance carrier had failed to comply with the pre-hearing procedure and would therefore be foreclosed from presenting any defenses at the hearing. The appellants\u2019 motion to set aside that order was denied and, after a hearing on the merits, the administrative law judge found that the appellee sustained a com-pensable injury entitling him to temporary total disability benefits from July 15, 1991, through October 7, 1991, and temporary partial disability benefits from October 7, 1991, until a date yet to be determined. After a de novo review, the Workers\u2019 Compensation Commission found that the administrative law judge correctly precluded the insurance carrier from asserting defenses based upon the carrier\u2019s failure to respond to the pre-hearing information filing, and that the appellee had met his burden of proving by clear and convincing evidence that he had contracted an occupational disease entitling him to temporary tota\u00ed and temporary partial disability benefits. From that decision, comes this appeal.\nFor reversal, the appellants contend that the administrative law judge lacked the authority to enter an order precluding them from asserting a defense or offering evidence, and that this order was in any event a manifest abuse of discretion which requires reversal. The appellants also contend that the Commission\u2019s finding that the appellee contracted an occupational disease entitling him to temporary total and temporary partial disability benefits, is not supported by substantial evidence. We do not agree, and we affirm.\nWe first address the appellants\u2019 contention that neither the administrative law judge nor the Workers\u2019 Compensation Commission had the authority to enter the order precluding them from asserting a defense or offering evidence at the hearing. From the record, it appears that the administrative law judge mailed the employer\u2019s insurance carrier a notice on September 9, 1991, which detailed the pre-hearing procedures to be followed and stated that a party failing to complete the disclosures in a timely manner might be foreclosed from asserting claims and defenses. The insurance carrier failed to comply with the pre-hearing notice and, on November 13, 1991, the administrative law judge warned the insurance carrier that it would be precluded from presenting evidence to defend against the claim unless a response was filed within fifteen days. Although the carrier acknowledged receipt of that letter, it nevertheless failed to respond to the pre-hearing information request within the additional fifteen day period granted by the administrative law judge.\nWe think that the circumstances of the case at bar are analogous to those presented in Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988), in which we affirmed the dismissal of an employee\u2019s claim on the ground that he failed to answer interrogatories. In Loosey, supra, we held that the Commission was authorized to make rules governing discovery, and that the administrative law judge had the authority to make orders pertaining to discovery. Pursuant to Ark. Code Ann. \u00a7 ll-9-205(a)(l)(A) (1987), the Workers\u2019 Compensation Commission is specifically authorized to make such rules and regulations as may be found necessary to carry out its duties. Subsection (C) of that statute' charges the referee with the duty of conducting hearings, investigations, and making such orders as are required by any of the Commission\u2019s rules. Rule 16 of the Workers\u2019 Compensation Commission allows the Commission to order the depositions of any party or witness, and to order any other discovery procedure.\nIn Loosey, supra, the Commission dismissed an employee\u2019s claim with prejudice because he failed to answer interrogatories propounded by the employer. Despite the highly remedial purpose of the Workers\u2019 Compensation Act and our obligation to construe any ambiguities in the Act in favor of the workers for whose benefit it was adopted, see Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992), we upheld the dismissal of the employee\u2019s claim for failure to timely answer the employer\u2019s interrogatories, noting that the employee failed to answer the interrogatories in a timely manner despite an order of the administrative law judge which permitted him additional time to do so. Loosey, 232 Ark. App. at 141.\nThe case at bar presents similar facts in that the appellant was likewise informed that certain disclosures were required and that failure to do so in a timely manner might result in it being precluded from asserting any claims and defenses, the appellant failed to meet the deadline and was given additional time by the administrative law judge, and the appellant nevertheless failed either to make the required disclosures or request an additional extension before the expiration of the extended deadline. The disclosures in the case at bar were to be completed before the pretrial conference. The Commission is specifically authorized to make such investigation as it considers necessary in respect to a claim, Ark. Code Ann. \u00a7 11-9-704(b)(1) (1987), and the pretrial conference procedure itself is a relatively recent addition to the Workers\u2019 Compensation Act which was designed to provide an opportunity for early resolution of some or all of the issues present at the time. Ark. Code Ann. \u00a7 11-9-703(2) (Supp. 1993). This is in keeping with the spirit of the Workers\u2019 Compensation law which is, inter alia, to afford those who are injured a form of relief which is both simple and speedy. See Cook v. Southwestern Bell Telephone Co., 21 Ark. App. 29, 727 S.W.2d 862 (1987).\nThe appellant was notified that failure to complete the disclosures in a timely manner could result in the sanction which ultimately was imposed, thus satisfying due process. See Loosey, supra. We think it clear that the specific authority to investigate claims granted to the Commission carries also the authority to make such orders and impose such sanctions as are reasonably necessary to carry out that purpose. Although it is argued that the sanction imposed was unduly harsh, it was much milder than the dismissal of the worker\u2019s claim which was affirmed for a similar example of nonfeasance in Loosey, supra. We hold that the administrative law judge possessed the authority to enter an order precluding the appellants from asserting a defense or offering evidence by virtue of the specific statutory authorization permitting the Commission to investigate claims and to make such rules and regulations as are necessary to carry out its duties.\nNor do we find merit in the appellants\u2019 argument that the order precluding them from asserting any defense or introducing any evidence at the hearing was based on a pattern of conduct established by the insurance carrier, and that the record contains no evidence to establish any such pattern of conduct. We disagree with the appellants\u2019 argument because it is clear from the record that the administrative law judge\u2019s order was based squarely on the insurance carrier\u2019s failure to respond to the request for prehearing information in the case at bar. The reference to a \u201cpattern of conduct\u201d took place in the context of the following exchange between the administrative law judge and the attorney the appellants employed on the eve of the hearing:\nJUDGE STILES: And I have reviewed the motion and the supporting affidavit of Mr. Fleming, and I will deny the motion, Mr. Henry, but I want to just make it clear for purposes of this record, ordinarily I would not be so inflexible about these things, but in this particular case, because U.S.F. & G. not only failed to respond to the initial Request for Prehearing Information and did not take advantage of the additional time given them, I want it to be clear that the reason for my inflexibility this morning runs to U.S.F. & G. and not to this very able attorney that they have hired at the last minute.\nMR. HENRY: Well, of course, my position is the same, Your Honor.\nJUDGE STILES: And I want to make one further statement, just so I don\u2019t look like an absolute ogre about this. It\u2019s not just this case, and I\u2019ve had some conversation with both respective counsel about this, there is a pattern of conduct that\u2019s been established by this particular carrier with other cases, so hopefully this will be a sufficient attention-getter that this will not occur in the future.\nI\u2019m sorry to have to do this to you, Mr. Henry. You and I have been working opposite sides of this thing for the last fourteen-and-a-half years, you always do an admirable job, and I hope you understand that I\u2019m not personally trying to skin the bark off your tree, but I am skinning it off your client.\nWhen read in context, we think that the administrative law judge\u2019s reference to a \u201cpattern of conduct\u201d was not the basis of his order per se, but instead was an aside in the nature of a personal explanation to a respected attorney with whom the judge had a work relationship of long standing. Furthermore, our review is addressed to the sufficiency of the findings of the Workers\u2019 Compensation Commission rather than to the remarks of administrative law judges, and no such \u201cpattern of conduct\u201d is mentioned in the Commission\u2019s opinion, which found that the appellant insurance carrier was correctly precluded from asserting defenses by virtue of its failure to respond to the prehearing information filing in the case at bar. We find no error on this point.\nFinally, we address the appellants\u2019 contention that there is no substantial evidence to support the Commission\u2019s finding that the appellee contracted an occupational disease entitling him to temporary disability benefits.\nWhen reviewing the sufficiency of the evidence to support a decision of the Workers\u2019 Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission\u2019s findings and affirm if the Commission\u2019s decision is supported by substantial evidence. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.\nViewed in the light most favorable to the Commission\u2019s findings, the evidence shows that the appellee was employed by the appellant construction company as a cement finisher. During the course of his employment with the appellant construction company, the appellee noticed itching and redness on his feet and hands. Although the appellee originally thought that the condition was athlete\u2019s foot and therefore did not seek medical treatment, the appellee did inform his employer that he was having difficulty and sought medical treatment from Dr. Gehrki, a general practitioner, on May 13, 1991. The appellee was diagnosed with contact dermatitis due to secondary concrete exposure. Although the appellee quit working for the appellant construction company on the day he first saw Dr. Gehrki, and was subsequently employed for approximately two months by another party as a concrete finisher, there was evidence that the appellee was not exposed to concrete in his work for the second employer because he wore rubber boots and gloves that protected him from the concrete; in contrast, the record shows that, while working for the appellant construction company, the appellee had holes in his rubber boots and wore no rubber gloves. Furthermore, there was evidence that, while still employed by the appellant construction company, the appellee was sufficiently disabled that his supervisor noticed that he was \u201chopping\u201d at work due to his discomfort. Finally, although there was evidence that the appellee was subsequently employed by Johnny Bean, there was also evidence that Mr. Bean permitted the appellee an extremely flexible work schedule, permitting the appellee up to a week at a time to recover from the lesions which periodically erupt on his hands and feet because of his occupational disease.\nViewing this evidence, as we must, in the light most favorable to the Commission\u2019s findings, we cannot say that the findings of occupational disease entitling the appellee to temporary disability benefits were not supported by substantial evidence.\nAffirmed.\nMayfield, J., dissents.", "type": "majority", "author": "James R. Cooper, Judge." }, { "text": "Melvin Mayfield, Judge,\ndissenting. I cannot agree with the result reached or the reasoning employed by the majority opinion in this case. The law judge precluded the insurance carrier for the employer from presenting a defense against the appellee\u2019s claim for workers\u2019 compensation. The reason given by the law judge for this drastic action was that the insurance company (appellant) had not complied with the judge\u2019s prehearing requirements. In affirming that action, the majority opinion has overlooked a basic element in the process by which workers\u2019 compensation cases are decided.\nMany years ago, the Arkansas Supreme Court pointed out that it is the duty of the Workers\u2019 Compensation Commission to make findings according to the preponderance of the evidence and not whether there is any substantial evidence to support the findings of the referee (now the administrative law judge). Moss v. El Dorado Drilling Co., 237 Ark. 80, 81, 371 S.W.2d 528 (1963). In Clark v. Peabody Testing Service, 265 Ark. 489, 495, 579 S.W.2d 360, 362 (1979), the court said \u201cwe give the law judge\u2019s findings no weight whatever,\u201d And the Arkansas Court of Appeals recognized this principle in the early days of its operation. See Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981).\nIn the present case, as the majority opinion states, the appellant failed to comply with the prehearing procedures as detailed in the law judge\u2019s notice and failed again to furnish information within fifteen days as requested by a letter from the law judge. As a result, the law judge entered an order which precluded the appellant from presenting any defense to the appellee\u2019s claim. However, the appellant filed a motion to set aside the law judge\u2019s order, and the motion attached an affidavit by appellant\u2019s claims manager. At the hearing before the law judge the appellant\u2019s motion was denied, and appellant made a proffer of evidence it would have offered. In refusing to set aside his order and refusing to allow the appellant to assert a defense, the law judge stated, as set out in the majority opinion:\n[J]ust so I don\u2019t look like an absolute ogre about this, It\u2019s not just this case, and I\u2019ve had some conversation with both respective counsel about this, there is a pattern of conduct that\u2019s been established by this particular carrier with other cases, so hopefully this will be a sufficient attention-getter that this will not occur in the future.\nI turn now to the opinion of the full Commission which affirmed the law judge\u2019s decision. That opinion states that after a de novo review of the entire record the Commission finds that the claimant has met his burden of proof by clear and convincing evidence (this being the standard of proof necessary to show that the claimant had sustained an occupational disease as he claimed). In order to be clear on the point of this dissent, I note that there was, of course, no evidence and no defense allowed by the appellant to the claimant\u2019s claim. The point of this dissent, however, is that the full Commission did not make a finding of fact on the law judge\u2019s refusal to allow a defense to be made by the appellant. The only reference to that point in the opinion of the Commission is as follows:\nOn September 9, 1991, an administrative law judge mailed the respondent carrier a notice regarding the pre-hearing procedures to be followed. The notice stated that a party failing to complete the disclosures in a timely manner might be foreclosed from asserting claims and defenses. Several weeks later the carrier had not complied with the prehearing notice and on November 13, 1991, the administrative law judge noticed their failure to comply. The administrative law judge warned the respondent carrier that it would be precluded from presenting evidence to defend against the claim unless a response was filed within 15 days. The carrier acknowledged receipt of that letter but did not respond. We find under the facts in this case that the administrative law judge correctly precluded the respondent carrier from asserting defenses based upon its failure to respond to the prehearing information filing.\n(Emphasis added.)\nI submit that the opinion of the full Commission does not meet the requirement of the cases, cited above in this dissent, that the Commission must make findings of its own to support its decision and not merely find that the law judge acted correctly. In Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986), the Commission adopted the law judge\u2019s opinion which stated \u201cI believe it clear that the claimant has failed to prove by a preponderance of the evidence that she is entitled to additional benefits . ...\u201d 18 Ark. App. at 22, 709 S.W.2d at 109. This court reversed and remanded that case for the Commission to make \u201cspecific findings\u201d upon which it relied to support its decision. We said:\nThe Commission made no findings as to whether appellant sustained a compensable injury, or when the healing period ended if there was a compensable injury, or whether she was disabled at the time of hearing, and if so, what was the cause of the disability. We are simply unable to tell from the record upon what factual basis the claim was denied. Therefore, we are unable to tell whether or not the law was or was not properly applied by the Commission.\nId.\nHere, the Commission\u2019s finding that the law judge \u201ccorrectly precluded the respondent carrier from asserting defenses based upon its failure to respond to the prehearing information filing\u201d does not, in my view, make a specific finding that allows us to determine \u201cwhether or not the law was or was not properly applied by the Commission.\u201d The majority opinion does not, in my view, touch that problem. It simply states that the Commission (and by inference, the law judge) has authority to \u201cmake such orders and impose such sanctions as are reasonably necessary\u201d to investigate claims and provide speedy relief. However, the Commission did not find that the law judge correctly precluded the carrier in this case from asserting a defense because it would have hindered or unduly delayed the resolution of appellee\u2019s claim. The affidavit of appellant\u2019s claims manager states that a significant administrative change was made at its Little Rock office in September of 1991; that this caused some difficulty in establishing new operating procedures for processing claims; and that a processing mistake had apparently occurred in the handling of the claim in this case. Neither the law judge or the Commission even mentioned this point. Moreover, the affidavit stated that the appellant had filed a response to the pre-hearing order on December 9, 1991, which was prior to the hearing on the merits on January 3, 1992. While this was not within the fifteen-day limit set by the law judge, the Commission made no mention of this fact and certainly did not hold that the failure to timely respond would have caused a delay in deciding the appellee\u2019s claim.\nIn Cagle Fabricating and Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992), the Arkansas Supreme Court cited our case of Jones v. Tyson Foods, Inc., 26 Ark. App. 51, 759 S.W.2d 578 (1988), where we remanded to the Commission because it did not make specific findings that we could review. Our supreme court in Cagle said the Commission\u2019s language in that case was similar to that the Commission used in Jones in that it \u201cdoes not detail or analyze the facts upon which it is based.\u201d 309 Ark. 369, 830 S.W.2d 859. Therefore, the supreme court ordered the case remanded for a new decision based upon specific findings.\nWhile it is true that we will in an appropriate case affirm the Commission if its decision has the effect of adopting the findings and conclusions of the administrative law judge, see Arkansas Department of Health v. Williams, 43 Ark. App. 169, 180, 863 S.W.2d 583, 589 (1993), in the present case the law judge based his decision on his statement (previously quoted in this dissent) that \u201cIt\u2019s not just this case . . . there is a pattern of conduct that\u2019s been established by this particular carrier with other cases, so hopefully this will be a sufficient attention-getter that this will not occur in the future.\u201d Although, the majority opinion does not think this was \u201cthe basis of his order per se,\u201d there is no other statement of specific facts relied upon by the law judge for the imposition of his sanction barring the appellant from presenting a defense to the appellee\u2019s claim. Since we review the Commission\u2019s decision and not the law judge\u2019s decision, I think we should remand to the Commission for it to make specific factual findings to enable us to determine whether or not the law was or was not properly applied by the Commission. Especially is that true here where it seems clear, at least to me, that the law judge based his decisions upon some past \u2014 but not detailed or in evidence \u2014 conduct of the appellant.\nThe majority cites our case of Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988), as authority for its decision in the present case. That case, however, makes no point of the lack of specific findings, but to the contrary, the opinion states that \u201cwe cannot say the Commission\u2019s order is not supported by the record.\u201d 23 Ark. App. at 141, 744 S.W.2d at 404. Apparently, the record disclosed sufficient findings made by the Commission to enable us to determine that the Commission\u2019s decision was supported by the record. Even, if we were wrong \u2014 it does not give us license to be wrong again.\nI dissent from the failure of the Court to remand this case to the Commission for specific findings which we can review on appeal.", "type": "dissent", "author": "Melvin Mayfield, Judge," } ], "attorneys": [ "Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellant.", "Lane, Muse, Arman & Pullen, for appellee." ], "corrections": "", "head_matter": "HARRINGTON CONSTRUCTION CO., et al. v. David WILLIAMS\nCA 93-239\n872 S.W.2d 426\nCourt of Appeals of Arkansas En Banc\nOpinion delivered March 23, 1994\n[Rehearing denied April 20, 1994.]\nBarber, McCaskill, Amsler, Jones & Hale, P.A., for appellant.\nLane, Muse, Arman & Pullen, for appellee.\nMayfield, L, would grant rehearing." }, "file_name": "0126-01", "first_page_order": 150, "last_page_order": 161 }