concurring. I wholeheartedly agree with the reasoning and conclusion of the majority opinion but would enlarge on what I consider the sound basis for our decision that there is simply a total failure of proof to support the argument that these provisions are violative of the Fourteenth Amendment guarantees of equal protection and due process.
Our Workers’ Compensation Act places compensable disabilities into two major classifications: (1) disability resulting from injury arising out of the employment; and (2) disability resulting from occupational disease. Silicosis is classified as an occupational disease. The appellant contends that the legislative distinction denies equal protection and due process because the period of limitation on claims for disability resulting from injury is more favorable than that for claims resulting from occupational diseases and because the period of limitation for occupational disease is, in any event, unreasonably short.
The constitutional guarantee of equal protection does not prohibit legislation affording different treatment for persons in different classifications so long as there is a rational basis for the different classifications and they have some reasonable relation to the objectives of the legislation. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987). It is also well settled that legislative discretion in setting periods of limitation on actions will not be disturbed on due process grounds unless it appears that the period provided is so short as to amount to a virtual denial of the right. Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976). All legislative acts are presumed to meet these requirements and will be so construed whenever possible. The burden of proving the contrary rests on the person attacking the validity of the statute. Holland v. Willis, supra.
This case was initially presented to the Commission on the assumption that constitutional issues could not be determined before that body. On the first appeal of this case we ruled that the issue must be first raised before the Commission in order to preserve it for our review, as this is the only way that a proper record can be made. As this was the first time that declaration had been made, in fairness to the appellant we remanded the case to the Commission to enable the appellant to present the issue to the Commission and to develop a record for our review. See Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982).
This invitation was not fully accepted, however, as the record returned to us for our present review contains nothing, other than the additional written opinions of the administrative law judge, the Commission, and this court, that was not in the original record. There is no evidence tending to show that the legislature established these classifications without a reasonable basis or that the distinction between the two types of disability has no relation to the main objectives of the Act. Nor is there any scientific or other evidence that the period of limitation on silicosis claims is unreasonably short.
In the absence of proof of the legislative history or perhaps expert testimony establishing that the distinction could have no reasonable basis but was arbitrarily established, we cannot conclude that the legislation was invalid. Since the legislation is not arbitrary on its face, we must conclude that the classifications are reasonably based if they can be sustained on any conceivable set of facts. McGowanv. Maryland, 366 U.S. 420 (1961); Handy Dan Improvement Center, Inc. v. Adams, 276 Ark. 268, 633 S.W.2d 699 (1982); Bill Dyer Supply Co., Inc. v. State, 255 Ark. 613, 502 S.W.2d 496 (1973). A number of conceivable reasons for the separate classification of silicosis are discussed in Gauthier v. Campbell, Wyant & Cannon Foundry Co., 360 Mich. 510, 104 N.W.2d 182 (1960); Graber v. Peter Lametti Construction Co., 293 Minn. 24, 197 N.W.2d 443 (1972); and Holt v. Nevada Industrial Commission, 94 Nev. 257, 578 P.2d 752 (1978). The most prevalent reasons mentioned were that certain industries might be driven from the state due to the effect that the high incidence of silicosis in those industries would have upon compensation insurance rates and the inability to prove with exactness the time or place of employment at which the disease actually developed.
The appellant argues that there is no present, legitimate end to be gained by the distinction because the justification the legislature once saw has ceased to exist. There is no need for us to determine whether that argument would better be made to the legislature than this court because the argument is not supported by anything in the record before us for review. The argument is based entirely on excerpts from and statements attributable to various persons in writings, such as medical treatises and statistical studies, which are completely dehors this record, and it is clear that allegations and arguments in briefs which are unsupported by evidence do not provide a proper basis for the determination of factual issues.
I would simply hold as did the Commission:
There is no showing in the record that the distinction between silicosis and accidental injury claims envisioned by the statutes in question is arbitrary or unsupported by a legitimate government interest. The Arkansas General Assembly has concluded that the nature and characteristic symptoms of silicosis warrant a different limitations period than that applied to claims for accidental injuries under § 18 of the Act. There is no proof in this record that the limitations period applied to silicosis claims is scientifically unreasonable or diagnostically unsound. There is no evidence that this time period imposes potential silicosis claimants with an unreasonably short time for filing their claims. In short, claimant has produced no evidence to support a finding that the distinction that our Act makes between silicosis and accidental injury claimants is unreasonable, arbitrary, or capricious so as to violate the Equal Protection Clause of Amendment XIV of the United States Constitution. [Emphasis added.]
Appellant has failed in his burden of proving the statutory provisions to be constitutionally infirm, and the majority opinion properly affirms the decision of the Commission.
754 S.W.2d 850SUPPLEMENTAL OPINION ON DENIAL OF REHEARING AUGUST 17, 1988
Per Curiam. Appellant petitions for a rehearing pursuant to Ark. Sup. Ct. R. 20. The basis for his request is an absence from the record of certain exhibits introduced into evidence by him in a rehearing before the administrative law judge pursuant to a remand by this court for the purpose of developing issues of constitutionality of the silicosis limitation statutes. Arkansas Statutes Annotated §§ 81-1314(a)(7) and -1318(a)(2) (Repl. 1976). In Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982), we noted the general rule that the constitutionality of a statute will not be considered if raised for the first time on appeal, citing Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980). Despite the rule in Sweeney and in light of the unusual circumstances of this case, appellant was allowed a rare opportunity “to present and argue his constitutional issue.” In that case we emphasized that:
[A] ppellant failed to properly raise before the Commission the issue concerning the constitutionality of §§ 81-1314(a)(7) and 81-1318(a)(2). Because we have never held, until now, that such issues must be raised first at the Commission level, we believe it would be unfair not to remand this cause in order to allow the appellant the opportunity to present and argue his constitutional issue.
Hamilton, 6 Ark. App. at 335-36, 641 S.W.2d at 725.
Following the remand, appellant presented a record and briefs to this court resulting in a denial of his claim in an unpublished opinion by this court in Hamilton v. Jeffrey Stone Co., No. 86-309 (Ark. App. May 6, 1987). The Arkansas Supreme Court granted review from our unpublished decision of May 6,1987, in Hamilton v. Jeffrey Stone Co., 293 Ark. 499, 739 S.W.2d 161 (1987), wherein the supreme court reversed and remanded the case to this court advising that “the record reflects those constitutional issues had been remanded to the Commission, decided by it and were clearly ripe for resolution by the court of appeals in this second appeal.” Id. at 502,739 S.W.2d at 163. On remand, this court determined affirmatively the constitutionality of the silicosis statutes of limitations in Hamilton v. Jeffrey Stone Co., 25 Ark. 66, 752 S.W.2d 288 (1988).
The chronology of events in this case clearly indicates that appellant had numerous opportunities to insure the completeness of the record. Now for the first time in his petition for rehearing, appellant argues that he was not put on notice that the record lacked evidence he claims was previously submitted. We refuse to depart from the long standing rule that the burden is upon the appellant to bring up a record sufficient to demonstrate that the trial court was in error. Ark. R. App. P. 6(b). See Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986); City of Star City v. Shepherd, 287 Ark. 188, 697 S.W.2d 113 (1985); SD Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983); McLeroy v. Waller, 21 Ark. App. 292, 731 S.W.2d 789 (1987). It was appellant’s responsibility to bring up a sufficient record and a proper abstract thereof. Appellant now advises this court that the record should be supplemented so as to include certain exhibits that should have been included in the record long ago. We refuse to do so and respectfully deny the petition for rehearing.
Petition denied.