United States Fidelity & Guaranty Co. v. Brewer

UNITED STATES FIDELITY & GUARANTY COMPANY v.
Raymon BREWER and Fireman's Fund Insurance
Company

CA 95-363                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                 Opinion delivered March 6, 1996


1.   Workers' compensation -- prohibition of presentation of
     constitutional arguments for first time on appeal. -- The rule
     that prohibits presentation of constitutional issues for the
     first time on appeal applies with equal force to appeals from
     the Arkansas Workers' Compensation Commission.

2.   Workers' compensation -- modification of awards -- when
     Commission may modify final award. -- Although Ark. Code Ann.
      11-9-713 (1987) grants the Commission the authority to
     modify a final award subsequent to the expiration of the time
     for appeal, the Commission may only do so upon a showing of a
     change in physical condition or proof of an assignment of an
     erroneous wage rate.

3.   Workers' compensation -- modification of awards -- appellant's
     attempt to offer new evidence was outside scope of statute
     allowing modification of award due to change in physical
     condition. -- Where appellant carrier, in its motion to vacate
     the Commission's prior order, did not argue that appellee
     employee's physical condition had changed since the order was
     entered or that there was an assignment of an erroneous wage
     rate but instead argued that appellee employee experienced a
     change in physical condition prior to the entry of the award
     but subsequent to the change in workers' compensation carriers
     and sought to offer new evidence to show that appellee
     employee had a herniated disc at the time the original order
     was entered in order to shift liability for compensation to
     appellee carrier, the appellate court determined that this was
     clearly outside the scope of Ark. Code Ann.  11-9-713 (1987),
     which only allowed modification of the amount of an award due
     to a change in physical condition; thus, appellant's reliance
     on the statute was misplaced.

4.   Workers' compensation -- finality of order or award --
     Commission correct in finding that it had no authority to
     vacate prior order. -- Under Ark. Code Ann.  11-9-711(b)
     (1987), a compensation order or award of the Workers'
     Compensation Commission becomes final unless, within thirty
     days from receipt of the order or award, a party to the
     dispute files notice of appeal to the court of appeals; where
     no appeal was filed from the Commission's prior order in the
     matter, the Commission has no authority to entertain a
     petition for rehearing after the expiration of the thirty-day
     appeal period; the Commission was correct in finding that it
     had no authority to grant appellant's motion to vacate.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Trammell Law Firm, by: Robert D. Trammell, for appellant.
     Shackleford, Shackleford & Phillips, P.A., by: Brian H.
Ratcliff, for appellee Fireman's Fund Ins. Co.

     John F. Stroud, Jr., Judge.
*ADVREPCA8*               DIVISION III









UNITED STATES FIDELITY &
GUARANTY COMPANY
                     APPELLANT

V.


RAYMON BREWER AND FIREMAN'S
FUND INSURANCE COMPANY
                     APPELLEES



CA 95-363

                                                    March 6, 1996


APPEAL FROM THE ARKANSAS
WORKERS' COMPENSATION
COMMISSION [E210953 AND
E003746]





AFFIRMED 





                   John F. Stroud, Jr., Judge.



     This is an appeal from a decision of the Workers' Compensation
Commission finding that it had no authority to vacate its prior
opinion and order a new trial on the basis of newly discovered
evidence after the thirty-day appeal period had expired.  We agree
and affirm.
     Raymon Brewer sustained a compensable injury to his back
during the course and scope of his employment on February 12, 1990. 
At the time of the injury, appellant was the workers' compensation
carrier for Brewer's employer, Charles Allen Construction.  As part
of his medical treatment, Brewer underwent an MRI on April 2, 1990,
which showed that he suffered from degenerative arthritis but
revealed no herniated disc injury.  Brewer returned to work
on May 17, 1990, but continued to have some back pain.  On
January 1, 1991, appellee Fireman's Fund Insurance Company became
the workers' compensation carrier for Charles Allen Construction.
     On July 9, 1992, Brewer suffered a second injury to his back
during the course and scope of his employment when he fell five to
six feet from a track hoe.  He filed a workers' compensation claim
for the injury, and a hearing was held on February 11, 1993, to
determine whether he had sustained an aggravation or a recurrence. 
If the injury had been found to be an aggravation, appellee
Firemanþs Fund would have been liable for Brewerþs benefits. 
However, the administrative law judge found that Brewer's injury
was a recurrence of the February 12, 1990, injury, which rendered
appellant liable.  The Commission affirmed and adopted the ALJ's
opinion in an order entered on February 23, 1994.  Appellant did
not appeal the February 23, 1994, order.
     During the course of his treatment for the second injury,
Brewer underwent an MRI on July 13, 1994.  The MRI revealed that
Brewer had a herniated disc.  Both Brewer's treating physician and
an orthopedic surgeon who examined him opined that Brewer's
herniated disc was a result of the July 9, 1992, fall.
     On November 1, 1994, appellant filed a motion to vacate the
February 23, 1994, order and requested a new hearing.  The
Commission denied the motion and found that it lacked the authority
to vacate its prior opinion and to order a new hearing after the
thirty-day appeal period expired.  Appellant filed a timely notice
of appeal from that opinion.
     Appellant contends that the Commission had the authority to
vacate its opinion and that its refusal to do so violates
appellant's constitutional right to seek a remedy.  It also argues
that it was reversible error for the Commission to refuse to admit
additional evidence because the prerequisites for the admission of
additional evidence have been met.  We find no merit in appellant's
arguments and affirm.
     Appellantþs first contention is that Ark. Const. art. II,  13
guarantees a remedy for every injury and that it was injured by the
Commissionþs order finding it liable for Brewerþs injuries.  It
argues that the Commission unconstitutionally denied it a remedy
for that injury by failing to vacate its order and remand for
rehearing.  We do not address appellant's constitutional argument
because it was not raised before the Commission.  The rule that
prohibits presentation of constitutional issues for the first time
on appeal applies with equal force to appeals from the Commission. 
Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589
(1991).  
     Appellant also contends that the Commission had statutory
authority to vacate its order and remand for a rehearing pursuant
to Ark. Code Ann.  11-9-713 (1987), which provides:
     (A) Except where a joint petition settlement has been
     approved, the commission may review any compensation
     order, award, or decision.  This may be done at any time
     within six (6) months of termination of the compensation
     period fixed in the original compensation order or award,
     upon commissionþs own motion or upon the application of
     any party in interest, on the ground of a change in
     physical condition or upon proof of erroneous wage rate. 
     Upon the review, the commission may make an order or
     award terminating, continuing, decreasing, or increasing
     for the future the compensation previously awarded,
     subject to the maximum limits provided for in this
     chapter.  (Emphasis added.)

Although Ark. Code Ann.  11-9-713 grants the Commission the
authority to modify a final award subsequent to the expiration of
the time for appeal, the Commission may only do so upon a showing
of a change in physical condition or proof of an assignment of an
erroneous wage rate.  See, Cooper Indus. Prod. v. Meadows, 5 Ark.
App. 205, 634 S.W.2d 400 (1982).
     Appellant did not argue in his motion to vacate filed with the
Commission that Brewer's physical condition had changed since the
order was entered or that there was an assignment of an erroneous
wage rate.  Instead, appellant argues that Mr. Brewer experienced
a change in physical condition prior to the entry of the award but
subsequent to the change in workersþ compensation carriers. 
Appellant seeks to offer new evidence to show that Mr. Brewer had
a herniated disc at the time the original order was entered to
shift liability for Brewerþs compensation to Firemenþs Fund.  This
is clearly outside the scope of the statute, which only allows
modification of the amount of an award due to a change in physical
condition.  Thus, appellantþs reliance on Ark. Code Ann.  11-9-713
(1987) is misplaced.
     The Commission was correct in its finding that it did not have
the authority to vacate its prior order.  Arkansas Code Annotated
section 11-9-711(b) (1987) provides:
     (b)  Award or Order of Commission--Appeal.  (1) A
     compensation order or award of the Workers' Compensation
     Commission shall become final unless a party to the
     dispute shall, within thirty (30) days from receipt by
     him of the order or award, file notice of appeal to the
     Court of Appeals, which is designated as the forum for
     judicial review of those orders and awards. 

In this case, no appeal was filed from the order entered on
February 23, 1994.  We have previously held that the Commission has
no authority to entertain a petition for rehearing after the
expiration of the thirty-day appeal period.  Lloyd v. Potlatch
Corp., 19 Ark. App. 335, 721 S.W.2d 670 (1986);  Smith v.
Servomation, 8 Ark. App. 274, 651 S.W.2d 118 (1983);  Cooper Indus.
Prod. v. Meadows, 5 Ark. App. 205, 634 S.W.2d 400 (1982).  Lloyd,
Smith, and Cooper are controlling in this case, and the Commission
was correct in its finding that it had no authority to grant
appellant's motion to vacate.
     Because we hold that the Commission did not have authority to
vacate its order and remand the case for the taking of additional
evidence, we need not address appellant's argument that the
statutory requirements for admitting additional evidence were met. 
     Affirmed.
     Mayfield and Neal, JJ., agree.