dissenting. I dissent. The Appeal Tribunal awarded benefits to appellant, and the Board of Review later reversed and denied benefits. In awarding benefits, the Appeal Tribunal obviously believed claimant’s testimony, but in denying benefits, the Board clearly chose to disbelieve her testimony. The difference between the Appeal Tribunal proceedings here and that conducted by the Board was the Tribunal observed the demeanor of the witnesses who testified. Although the Board is authorized to take testimony and other evidence, it did not do so in this case. As was true in this appeal to the Board of Review, it is usual procedure for the Board to limit its review to the exact record and evidence which was previously presented to the Appeal Tribunal below. In cases where the ultimate determination as to benefits hinges entirely upon the degree of credibility to be accorded testimony of interested witnesses, I believe the Appeal Tribunal’s credibility findings should be entitled to special weight. See K. Davis, Administrative Law of the Seventies, § 10.04 (1976).
I recognize that our court and the Supreme Court have consistently held, routinely and without comment, that credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board of Review and the Workers’ Compensation Commission. Daniels v. Hillcrest Homes, Inc., 268 Ark. 516, 594 S.W. 2d 64 (Ark. App. 1980); Arkansas Coal Company v. Steele, 237 Ark. 727, 375 S.W. 2d 673 (1974). How this rule on review has become so well established is a real conundrum. Anyone who reflects a moment on the application of this rule becomes immediately aware that a Board or Commission which reviews a cold record on appeal is in a poor position to weigh the credibility of any witness. It would make as much sense for our court to decide credibility issues in cases appealed to us from either the Employment Security Board of Review or the Workers’ Compensation Commission. Of course, we have never done so.
Most any law school graduate is aware that our Court reviews chancery cases de novo. However, where credibility issues arise, we will not reverse the findings of the chancellor unless they are clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Drewry v. Drewry, 3 Ark. App. 97, 622 S.W. 2d 206 (1981).
Until comparatively recently, the courts in most jurisdictions, including Arkansas, have limited their review only to the findings of the administrative boards and commissions. See 3 A. Larson, The Law of Workmen’s Compensation, § 80.12 (1976). More recently, however, Professor Davis in his treatise recognized that a reviewing court which is in doubt about whether the findings are supported by substantial evidence may properly take into account, for what it seems to be worth, the fact that an experienced hearing officer who saw and heard the witnesses made the findings that he did. 2 K. Davis, Administrative Law Treatise, § 10.04 (1958); see also, 2 Am. Jur. 2d, Administrative Law, § 690 (1962).
Idaho is one of a number of states where the courts have parted with the longstanding general rule which blindly requires reviewing courts to ignore the findings made by administrative hearing officers. The Idaho Supreme court has adopted the view that it is not bound by the Idaho Industrial Commission’s findings when the Commission does not hear and see the witnesses. See Mata v. Broadmore Homes, 95 Idaho 873, 522 P. 2d 586 (1974), and Clay v. Crooks Industries, 96 Idaho 378, 529 P. 2d 774 (1974). Similar views to that expressed by the Idaho court have been adopted in other jurisdictions when courts have reviewed administrative board or commission decisions on appeal. See Redding v. Cobia Boat Company, 389 So. 2d 1003 (Fla. 1980); Powell v. Industrial Commission, 4 Ariz. App. 172, 418 P. 2d 602 (1966); Universal Cyclops Corporation v. Workmen’s Compensation Appeal Board, 9 Pa. 176, 305 A. 2d 757 (1973). I should note, in passing, the courts in Florida and Pennsylvania apparently followed the traditional or general rule until their respective legislatures modified their state laws dealing with the review of workers’ compensation cases.
In Arkansas, our statutory law provides that the findings of the Board of Review as to the facts shall be conclusive. Ark. Stat. Ann. § 81-1107 (d) (7) (Supp. 1981). However, when the Board reviews the decision of an Appeal Tribunal, it may do so on the evidence previously submitted to the Tribunal or it may direct additional evidence be submitted. Ark. Stat. Ann. § 81-1107 (d) (3) and (4) (Repl. 1976). There is nothing in our law which precludes or prohibits the Board from seeing and hearing witnesses, especially if credibility is an issue.
These same conclusions are true when reviewing our Workers’ Compensation laws. For example, Ark. Stat. Ann. § 81-1325 (Supp. 1981) provides, in effect, that the findings of fact made by the Commission, within its power, shall be conclusive and binding on our court on appeal. When the Commission reviews a decision made by an Administrative Law Judge, it does so by reviewing the evidence previously submitted to the judge, and if it deems advisable, the Commission may hear the parties, their representatives and witnesses. Ark. Stat. Ann. § 81-1323 (b) (Repl. 1976).
In sum, our Employment Security Board of Review and Workers’ Compensation Commission are authorized on the review of cases to call and hear witnesses. When the primary or sole issue on appeal becomes one of credibility of the witnesses, I believe the findings of the Board or Commission should not be binding on our courts unless that Board or Commission heard or saw the witnesses. In cases where they fail to call and hear the witnesses, I would adopt the rule that special weight should be given the findings of the hearing examiner who observed the demeanor of the witnesses. I believe the statutory procedures which outline this court’s role of review in Employment Security and Workers’ Compensation cases permit us to require such a rule. At the least, I feel the Arkansas General Assembly should adopt a law which appropriately modifies our review in cases where credibility of witnesses appears to be the sole or primary question. Meanwhile, I would reverse this cause because the Board failed to hear and see the witnesses, and the Appeal Tribunal was in a superior position to decide this case.
I am authorized to state that Judge Cooper joins in this dissent.