concurring. I agree with the majority’s conclusions in this case, but I write separately to highlight what the majority has mentioned in a footnote. In this case, appellant Richard Kimbell testified that, although he had gone outside to the porch to take a smoke break, he was answering Stanley Minor’s questions about Minor’s “ticket to work” at the moment he fell. Minor, on the other hand, testified that he was not on the porch when Kimbell fell. The Administrative Law Judge, who heard and observed the witnesses, specifically found that Minor’s testimony was not credible, noting that, during the course of his testimony, Minor “generally acted in a manner suggesting an unstable personality,” and his testimony was “confused and evasive” and “implausible.” The ALJ found Kimbell to be the more credible witness, and awarded benefits based on its conclusion that Kimbell was performing employment services at the time of his fall.
On its review, however, the Commission determined that Minor was the more credible witness, and because Minor testified that he was not speaking with Kimbell at the moment of Kimbell’s fall, the Commission concluded that Kimbell was not performing employment services at the time of his injury. In sum, even though the Commission did not hear additional testimony, and thus had nothing more than a cold record on which to base its decision, the Commission substituted its view of the credibility of the witnesses for that of the ALJ.
The majority points out that Kimbell failed to raise an argument regarding whether the Commission erred by substituting its opinion for that of the ALJ on the question of the witnesses’ credibility; in addition, the majority expresses a “willingness to address this issue in the future.” I wish to emphasize this point and suggest that an astute party raise the question directly. In Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991), this court noted that “[a] reason which might indeed be compelling for holding that the initial fact finder’s determinations of facts where credibility is at issue cannot be ignored would be that it deprives a party of due process of law.” Scarbrough, 306 Ark. at 645. Other concurring and dissenting opinions by this court and the court of appeals have pointed out the logical fallacy of permitting the Commission to make credibility determinations without having observed the witnesses and their demeanors. In Webb v. Workers’ Compensation Comm’n, 292 Ark. 349, 733 S.W.2d 726 (1987), Justice Newbern rendered a concurring opinion in which he noted the following:
The adjudication of [Workers’ Compensation] claims begins with a hearing before an administrative law judge (ALJ). It is an adversary proceeding, but designed to be informal. The ALJ’s decision is then reviewed by the Commission if one party or the other is dissatisfied with the result reached by the ALJ. There may have been a time when the commission actually heard witnesses give live testimony when its members wished to redo the work of the ALJ. Given the numbers of claims today, however, that would be impractical if not impossible. The Commission has the power to, and presumably does, permit argument before it either orally or in the form of briefs and it may admit additional evidence in its de novo review of the decision of the ALJ. It would surely be wasteful, however, to hold the hearing with the live witnesses a second time, so the decision of the Commission is much like that of an appellate court; it operates from a cold, or at best, warmed-over, record.
Webb, 292 Ark. at 352-53. Justice Newbem continued, noting that, “[d] espite the fact that it is the ALJ who hears the witnesses and has the opportunity to see them face to face, we persist in holding that his or her decision is meaningless when a decision of the Commission is on appeal.” Id. at 353. However, he pointed out, “there is a growing minority view... that the Commission cannot reverse the findings of fact made by a hearing officer unless the findings are not sustained by competent, substantial evidence, and on appeal from the Commission the court must determine whether the Commission observed the substantial evidence rule when it reviewed the officer’s findings and order.” Id. (citing United States Cas. Co. v. Maryland Cas. Co., 55 So. 2d 741 (Fla. 1951)).
In addition, I wrote a dissent in the court of appeals’ decision in Hamby v. Everett, 4 Ark. App. 52, 627 S.W.2d 266 (1982), pointing out 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.” Hamby, 4 Ark. App. at 55 (Glaze, J., dissenting). I concluded that:
[w]hen the primary or sole issue on appeal becomes one of credibility of the witnesses, I believe the findings of the ... Commission should not be binding on our courts unless that. . . 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... 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.
Id. at 57.
Hopefully, this issue will be properly raised in the near future so that this court can address and decide it.