dissenting. 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’s claim for workers’ compensation. The reason given by the law judge for this drastic action was that the insurance company (appellant) had not complied with the judge’s prehearing requirements. In affirming that action, the majority opinion has overlooked a basic element in the process by which workers’ compensation cases are decided.
Many years ago, the Arkansas Supreme Court pointed out that it is the duty of the Workers’ 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 “we give the law judge’s findings no weight whatever,” 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).
In the present case, as the majority opinion states, the appellant failed to comply with the prehearing procedures as detailed in the law judge’s 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’s claim. However, the appellant filed a motion to set aside the law judge’s order, and the motion attached an affidavit by appellant’s claims manager. At the hearing before the law judge the appellant’s 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:
[J]ust so I don’t look like an absolute ogre about this, It’s not just this case, and I’ve had some conversation with both respective counsel about this, there is a pattern of conduct that’s 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.
I turn now to the opinion of the full Commission which affirmed the law judge’s 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’s claim. The point of this dissent, however, is that the full Commission did not make a finding of fact on the law judge’s 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:
On 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.
(Emphasis added.)
I 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’s opinion which stated “I believe it clear that the claimant has failed to prove by a preponderance of the evidence that she is entitled to additional benefits . ...” 18 Ark. App. at 22, 709 S.W.2d at 109. This court reversed and remanded that case for the Commission to make “specific findings” upon which it relied to support its decision. We said:
The 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.
Id.
Here, the Commission’s finding that the law judge “correctly precluded the respondent carrier from asserting defenses based upon its failure to respond to the prehearing information filing” does not, in my view, make a specific finding that allows us to determine “whether or not the law was or was not properly applied by the Commission.” 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 “make such orders and impose such sanctions as are reasonably necessary” 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’s claim. The affidavit of appellant’s 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’s claim.
In 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’s language in that case was similar to that the Commission used in Jones in that it “does not detail or analyze the facts upon which it is based.” 309 Ark. 369, 830 S.W.2d 859. Therefore, the supreme court ordered the case remanded for a new decision based upon specific findings.
While 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 “It’s not just this case . . . there is a pattern of conduct that’s 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.” Although, the majority opinion does not think this was “the basis of his order per se,” 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’s claim. Since we review the Commission’s decision and not the law judge’s 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 — but not detailed or in evidence — conduct of the appellant.
The 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 “we cannot say the Commission’s order is not supported by the record.” 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’s decision was supported by the record. Even, if we were wrong — it does not give us license to be wrong again.
I dissent from the failure of the Court to remand this case to the Commission for specific findings which we can review on appeal.