Grimes v. North American Foundry

Melvin Mayfield, Judge,

dissenting. This is another case where the decision appealed from has been affirmed by a three to three vote in this court. The basic reason for our division, in my view, results from the failure to the prevailing opinion to apply the doctrine of stare decisis. The dictionary meaning of this Latin phrase is “to stand by decided matters.” Webster’s New Collegiate Dictionary (1977). The Arkansas Supreme Court has said “it is necessary as a matter of public policy to uphold prior decisions unless great injury or injustice would result.” Independence Federal Bank v. Paine Weber, 302 Ark. 324, 331-32, 789 S.W.2d 725, 730 (1990). In the present case, the prevailing opinion does not even suggest that application of the doctrine of stare decisis would result in injury or injustice.

As the prevailing opinion sets out, on July 11, 1990, an administrative law judge issued an opinion finding that the appellant had sustained a physical impairment of 7 percent to the body, plus a 10 percent wage loss disability, for a 17 percent permanent partial disability. Both parties appealed to the full Commission which affirmed the 7 percent impairment rating but vacated the 10 percent wage loss rating and remanded the case to the law judge for the purpose of determining whether the claimant was laid off by his employer because of the claimant’s compensable injury or for economic reasons. The Commission, with one member dissenting, referred to Ark. Code Ann. § 11-9-522(b) (1987) and said:

We find this section of the law controlling since the claimant did not return to work for the respondent at the same or greater wages he was earning at the time of his injury. In fact, claimant returned to work for the respondent for some 15 months. So far as this record indicates, but for the general layoff the claimant would still be working for the respondent making the same or greater wages. However, claimant contends that he was laid off as the result of his compensable injury.
Claimant testified that employees with less seniority than him were not laid off; if that is so, we could infer that claimant was laid off because of his injury. Respondent made no attempt to rebut this inference, but we find that this issue was not contemplated by the parties and in order to afford all the parties an opportunity to fully develop this issue we hereby set aside and vacate the Administrative Law Judge’s decision finding that the claimant suffered a loss in wage earning capacity in an amount equal to 10 % to the body as a whole and remand this case to the Administrative Law Judge for the purpose of determining whether the claimant was laid off as a result of his injury.

The appellant’s first point, relied upon in his appeal to this court, contends the Commission erred in remanding the case to the law judge. I think the appellant is correct. Ark. Code Ann. § ll-9-705(c)(l) (1987) provides, in part, as follows:

Each party shall present all evidence at the initial hearing. Further hearings for the purpose of introducing additional evidence will be granted only at the discretion of the hearing officer or the commission.

In Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991), the administrative law judge heard the evidence presented and found the claimant to be temporarily totally disabled “beginning June 10, 1989, and continuing to a date yet to be determined.” He also found the record incomplete to determine the appropriate periods of temporary total disability benefits between February and June 1989, “and reserved this issue for future determination.” 36 Ark. App. at 192, 820 S.W.2d at 476. The Commission affirmed the law judge but on appeal to this court we reversed for the following reason:

The Commission has allowed the appellee a “second bite at the apple” by giving her another opportunity to present evidence substantial enough to carry her burden. Though we do not interfere with actions of the Commission unless we find it acted without or in excess of its authority, Allen Canning Company v. McReynolds, 5 Ark. App. 78, 632 S.W.2d 450 (1982), disregarding its duty to find the facts in order to give the appellee the benefit of the doubt is not within the Commission’s authority.

36 Ark. App. at 195, 820 S.W.2d at 478.

I simply cannot see any meaningful distinction between the Gencorp case and the present case insofar as the holding quoted above is concerned. In the present case the Commission remanded, on its own motion, to the law judge to allow an issue to be fully developed which had not been developed at the hearing before the law judge. In Gencorp the law judge decided, on his own motion, to reserve an issue for future determination because the record made at the hearing was not complete enough to decide the issue reserved for future determination, and the Commission affirmed the law judge’s action. In short, the Commission, in both cases, gave one of the parties “a second bite at the apple.” But we affirm the Commission in this case and we reversed the Commission in Gencorp.

I joined the dissenting opinion in the Gencorp case and am still of the opinion that the better rule would have been to uphold the law judge’s action in that case on the basis that he did not abuse the discretion granted him under Ark. Code Ann. § 11-9-705(c)(1) (1987). However, the majority of this court reversed. While I did not agree with that decision, it became a precedent we should follow “unless great injury or injustice would result.” Much has been written about this point. One in-depth examination of the general practice of adherence to precedent suggests that it rests upon five values: (1) stability, (2) protection of reliance, (3) efficiency in the administration of justice, (4) equality, and (5) the image of justice. Currier, Time and Change In Judge-Made Law: Prospective Overruling, 51 Va. L. Rev. 201 at 235-38 (1965). Of particular importance to the appellant in this case are the values of equality and the image of justice. The article states that “equality” comes from “equal treatment of persons similarly situated” and that “adherence to precedent generally tends not only to assure equality in the administration of justice, but also to project to the public the impression that courts do administer justice equally.” Both of these values are denigrated in the present case where we affirm the Commission’s action in allowing the employer “a second bite of the apple” and refuse to follow a prior case where, under similar circumstances, we would not allow an injured employee a “second bite at the apple.” I also think the value of “efficiency in the administration of justice” should cause this court to give careful attention to the observation of Benjamin N. Cardozo, made while a judge on the New York Court of Appeals:

We have had ten judges, of whom only seven sit at a time. It happens again and again, where the question is a close one, that a case which one week is decided one way might be decided another way the next if it were then heard for the first time. The situation would, however, be intolerable if the weekly changes in the composition of the court were accompanied by changes in its rulings. In such circumstances there is nothing to do except to stand by the errors of our brethren of the week before, whether we relish them or not.

B. Cardozo, The Nature of The Judicial Process 150 (1921).

The prevailing opinion, however, seeks to excuse its refusal to follow our decision in Gencorp by suggesting that the Commission’s consideration of the “additional evidence” taken on remand was not the “sole basis” for its decision to deny wage loss benefits. With all due respect, this does not mean that the case should have been remanded. In its order for remand the Commission said it could not determine whether the appellant was laid off because of his injury or for economic reasons and that “the case is hereby remanded to the Administrative Law Judge for the purpose of determining whether the claimant was laid off as a result of his compensable injury or whether he was laid off for economic reasons.” Not only that — but after the law judge heard the additional evidence, he made the same findings he made the last time he heard the matter, and the Commission in its second opinion stated:

It appears that the significance of why we remanded this case may have been lost. The issue is whether the claimant has met his burden of proving by a preponderance of the evidence that he has suffered a loss in wage earning capacity. The question of whether claimant is laid off for economic reasons or as a result of his compensable injury is extremely relevant in determining whether the claimant has met his burden of proof.

Thus, it is clear that the Commission made the decision appealed to this court based, at least in part, on the evidence presented to the law judge after remand. I think the Commission erred, in light of the Gencorp decision, in remanding this case to the law judge and thereby allowing the appellee “a second bite at the apple.” Furthermore, I think the conflict between the Gencorp decision and the decision in the present case will cause confusion to attorneys who practice workers’ compensation law. Following our precedent in Gencorp would contribute to stability in this area of the law. This is one of the values of the application of the doctrine of stare decisis. Refusing to follow Gencorp, without overruling it, promotes instability.

I would affirm the Commission’s decision to the extent that it affirmed the law judge’s finding that appellant sustained a physical impairment of 7 percent to the body, but I would reverse the Commission’s finding that appellant has not sustained any loss in wage earning capacity and would remand that issue to the Commission for a determination to be based solely upon the record before the Commission prior to its remand to the administrative law judge on February 5,1991. This does not mean that I agree with the Commission’s interpretation of Ark. Code Ann. § 11-9-522 (1987),butthatissuewouldsimplynotbeinvolvedin the disposition I would make of this appeal.

Pittman and Robbins, JJ., join in this dissent.