concurring. I reluctantly agree with the result reached by the majority opinion. However, I think the basic error occurred in this matter when the law judge, at the first hearing, took evidence without the Second Injury Fund being present and having the opportunity to cross-examine the witnesses. “The right to confront and cross-examine witnesses is a fundamental aspect of procedural due process, and such right applies not only in criminal proceedings, but also in noncriminal proceedings, including administrative or quasi-judicial proceedings.” 16A Am. Jur. 2d Constitutional Law § 849 (1979).
In this case, the issue of the Second Injury Fund’s liability did not arise “in a way which could not have been reasonably foreseen” as referred to in the Workers’ Compensation Commission Rule 24(b). Here, the possibility of the Fund’s liability was apparent to the law judge, the employee, and the employer and its carrier at the start of the hearing before the law judge and before any testimony was taken at that hearing. The law judge’s desire to take the testimony of the claimant who was present, treating the hearing as a preliminary one, and then notifying the Fund that it had been made a party, is understandable in regard to the saving of time, effort, and expense. But, the Second Injury Fund’s liability obviously was an issue of fact and the United States Supreme Court has said: “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269 (1970). When the law judge decided to join the Fund, I believe due process required that he recess the hearing until the Fund could be present to cross-examine the claimant who was ultimately held to be entitled to recover from the Fund. Also I agree with the Fund’s argument that “cross-examination of witnesses whose testimony has been made weeks or months earlier is much less effective than when allowed in conjunction with direct examination.”
When the full commission reversed the law judge’s holding that the Second Injury Fund had no liability, the Fund filed a motion for reconsideration with the commission, pointing out that the “most fundamental due process right of the Second Injury Fund” had been ignored by awarding benefits against the Fund based on a record where it had no opportunity to appear and defend. In my view, the Fund was not required to disclose or proffer what evidence, if any, it had to refute the commission’s factual determination. It had already been denied its fundamental due process right to cross-examine the claimant at the time the claimant gave his direct testimony.
As a practical matter, the result reached by the majority opinion is probably the best result that can be reached at this time. However, I fully agree that it is the employer or its carrier’s responsibility to join the Fund where they contend, as in this case, that their liability is limited by the application of Ark. Stat. Ann. § 81 -1313 (i) (Supp. 1985). Except for the fact that this is the first case in which this point has been involved, I would vote to reverse the commission’s decision and hold that the entire liability in this case should be assessed against the employer and its carrier.
Corbin, J., joins in this concurrence.