dissenting. I have two basic problems with the majority opinion and must respectfully dissent.
My first concern is with the case of Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982), relied upon by both the Commission and the majority opinion. I have no trouble with the result of that case, but, in my judgment, its reasoning is wrong and it has misled the Commission in this case. Since I agreed to the opinion in Haygood, I want to acknowledge my error and explain what I think is wrong with that opinion.
In that case, just as in the instant case, after the administrative law judge had issued his decision, the claimant appealed to the full Commission and requested permission to present additional evidence. While the opinion in Haygood states that the claimant filed a motion requesting that the matter be remanded to the law judge for the taking of additional evidence, it may not be clear that a motion to present additional evidence was also filed. I have examined the briefs in the case and a motion to present additional evidence was filed with the Commission at the same time the notice to appeal was filed, and the motion was denied in the same opinion that affirmed the law judge’s decision. Although the opinion of this court in Haygood is directed mainly to the remand motion (the considerations are surely the same), it also discusses the Commission’s Rule 14 and the application of that rule in Williams v. Coca-Cola Bottling Co., 266 Ark. 736, 585 S.W.2d 372 (Ark. App. 1979).
Rule 14 has now been incorporated verbatim into Ark. Stat. Ann. § 81-1327(c) (Supp. 1983), by Act 290 of 1981, and this act was in effect at the time of the decision of the Commission in this case. The act plainly states that all evidence should be presented at the initial hearing, and that further hearings for the purpose of introducing additional evidence “will be granted only at the discretion of the hearing officer or Commission.” The Haygood opinion recognized the discretionary ingredient but measured its application by the four prerequisites set out in Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960). The problem is that Mason did not involve the same situation involved in Haygood. In Mason the Commission’s decision was appealed to circuit court, as the law at that time provided, and a motion was filed in that court asking that the case be remanded to the Commission for the purpose of considering newly discovered evidence. The circuit court held it had no authority to grant that motion, but the Arkansas Supreme Court held that the same authority existed to grant that motion as existed to grant a similar motion in the usual civil or criminal case filed in circuit court. The opinion then set out four prerequisites, (which were later set out in Haygood and which are set out in the opinion in the instant case) and said, if those prerequisites were met, the circuit court should remand the case to the Commission for it to consider the newly discovered evidence.
Now that is not the same situation involved in the instant case. Here, there was a request to the Commission asking that the appellant be allowed to introduce additional evidence for the Commission to consider when it decided the merits of the case. In Mason there was a motion in circuit court asking that it remand the matter back to the Commission for it to consider newly discovered evidence to determine if it should change a decision it had already made on the merits of the case. In my defense, and in defense of the opinion in Haygood, I would note that while the circuit court there reversed the Commission’s refusal to allow additional evidence to be introduced and remanded the matter to the Commission for it to hear that evidence, on appeal of that order to this court, the appellant’s brief relied upon Mason and argued the matter as if the circuit court had remanded on a motion made in circuit court. The situations, however, are clearly different and the difference is crucial.
It is true, of course, that this court can hold that the discretion granted the Commission under Ark. Stat. Ann. § 81-1327(c) should be exercised only if the prerequisites set out in Haygood are present. But the legislature did not so confine the Commission’s discretion, and neither did Williams v. Coca-Cola Bottling Co., supra, when it applied Rule 14. It is apparent that the discretion granted the Commission by the legislature has been severely limited by Haygood. That the Commission recognized this is indicated by its order which significantly stated, “In reaching our decision on this motion we have been guided by the four prerequisites set out in Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960), which was recently affirmed in Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).” Undoubtedly, the Commission applied these prerequisites because it thought it was required to do so. If it wants to place these conditions on its discretion, it has that authority, but it should tell us, not tell us we told it. I would admit that our reasoning was wrong in Haygood and would remand the instant case to the Commission for it to exercise the discretion granted by the legislature, and I would interfere with that discretion only to the extent that it is abused.
The majority opinion simply brushes over the above considerations with the statement that the appellant concedes that the Commission applied the right criteria. The appellant, says the majority, only argues that the Commission erred in its finding that the proffered evidence was not relevant and, therefore, we are excused from worrying about the matter because we do not consider points not advanced on appeal.
I have searched the appellant’s brief very carefully and have not found where he concedes that the Commission applied the right criteria. I do find where he sets out the criteria referred to in Mason and where he says since the Commission said it was guided by the four prerequisites set out in Mason and affirmed in Haygood, and since he thought neither of the other three was involved, he thought it apparent that the Commission felt the proffered evidence did not meet the relevance requirement. I also notice that the only point relied upon in appellant’s brief is that the Commission erred in failing to consider the additional evidence proffered by him, and I notice that he concludes his brief by asking that we remand this case to the Commission for it to consider his proffered evidence. The point he relies upon and the relief he wants is clear enough to me, and I have no trouble understanding the statement in his argument that “The Arkansas Statutes vest in the Commission discretion in deciding whether to hear additional evidence.”
I think it is also worth noting that the fair and judicious consideration of the claims of injured workers in this state is important to employees, employers, and the state in general; and that it is not always considered wrong for a court to decide a matter on its own motion. In Leflar, Appellate Judicial Opinions 129 (1974), Dr. Leflar has reprinted portions of a law review article in which the following statements are found:
Occasionally an appellate court will consider a matter sua sponte because of the demands of justice. This is a reflection of one of the purposes of appellate review — justice for the parties. . . . When the matter involves more than just the individuals, and involves a reflection on the courts and the judicial system, there is more willingness to consider it sua sponte.
Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L. Rev. 477, 509-10 (1959).
My other basic problem with the majority opinion is its failure to recognize the extent of the claim that the appellant made before the administrative law judge and the Commission. The record shows that at a hearing held on January 25, 1983, the appellant’s attorney stood before the law judge and told him that it was the appellant’s contention that according to Dr. Grimes’ medical report the appellant’s foot injury had become an injury to the body as a whole; that Grimes gave appellant a 5% disability rating to the body as a whole; and that the appellant was entitled to be compensated for an injury to the body as a whole.
Several reports from Dr. Grimes were introduced into evidence. One dated September 19, 1980, stated appellant had a disability of 15% to the leg as a whole. The last one, dated January 11,1983, states that appellant has been given a 5% disability rating to the body as a whole. Despite these reports and despite appellant’s testimony that his foot injury had ultimately caused numbness in the upper part of his hip, the law judge held, as the majority opinion states it, “that the injury to appellant’s lower extremity was a scheduled one and . . . absent a showing of total disability a scheduled injury cannot be apportioned to the body as a whole.”
The appellant then filed an appeal to the full Commission and, in his notice of appeal, requested oral argument and permission to supplement the record with additional medical evidence. Subsequently, he sent the Commission another report from Dr. Grimes. That report simply clarified the doctor’s previous reports by stating that the appellant’s rating was changed “because his foot and leg pain altered his gait increasing the action and work of his back which aggravated his back condition as well.” The Commission, however, would not allow this report into evidence. The appellant then withdrew his request for oral argument and the Commission affirmed and adopted the law judge’s decision. It is my view that the Commission rejected the report because it thought this was required by Mason and Hay good, but at any event, it is perfectly obvious that the appellant was still seeking an award for disability to the body as a whole.
Appellant next appealed to this court and in his brief he argues, as the majority opinion states, “that our prior decisions which limit a scheduled injury, except where there is total permanent disability, are inequitable and produce unfair results.” However, the majority opinion fails to mention that appellant also argues “it is not merely that inequity that appellant relies upon in urging the court to adopt a different stance in this type of situation.” He then quotes Ark. Stat. Ann. § 81-1313(d) (Repl. 1976), which provides that a permanent partial disability not scheduled in subsection (c) shall be apportioned to the body as a whole, and the appellant’s brief then states:
If proof could have been submitted to the Commission that Mr. Hill had suffered such an injury as a result of the injury to his foot, neither this statute nor the statute listing the scheduled injury precludes apportioning the injury to the body as a whole.
From the above it seems clear enough to me that the appellant has consistently claimed, at each stage of this matter, that he is entitled to an award for a disability to the body as a whole. The majority opinion, however, says this issue is being raised here for the first time. I think the majority’s failure to recognize the extent of the claim made before the law judge and the Commission may come from a failure to fully appreciate the case of Clark v. Shiloh Tank & Erection Co., 259 Ark. 521, 534 S.W.2d 240 (1976), cited in appellant’s brief and referred to in the majority opinion.
In that case the claimant received an injury that required a surgical amputation of his foot. The Commission awarded him, under the scheduled injury section of the act, 125 weeks of compensation for the loss of his foot, plus an additional 22.5 weeks for a 5% disability to the body as a whole for a back injury which the Commission found was attributable to the loss of the foot. The majority opinion cites the Clark case as support for a statement which contains the phrase "where a worker has received a scheduled injury and subsequently receives an unscheduled one, he may be compensated for both.” That interpretation of the case may explain the position taken by the majority opinion that "no contention was made before the administrative law judge that the claim was being made for a second, unscheduled injury.” But Clark does not treat the claimant’s back injury as a second injury and it does not say he subsequently received an unscheduled injury. The case says the Commission found the back injury “was attributable to the loss of the foot.”
That is what the appellant claims in this case. That is what the report offered to the Commission was trying to make clear. The Commission refused to allow the report into evidence and gave as its reason the holdings in the Mason and Haygood cases. We should reverse and remand with directions to the Commission to rule upon the admissibility of the report in the exercise of the discretion granted it by Ark. Stat. Ann. § 81-1327(c) (Supp. 1983), and not by the application of the prerequisites set out in the Mason and Haygood decisions. I dissent from our failure to take that action.
Cooper and Corbin, JJ., join in this dissent.