Quinn v. Webb Wheel Prods.

Frank QUINN (Deceased) v. WEBB WHEEL PRODUCTS

CA 97-219                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Divisions I & II
               Opinion delivered December 17, 1997


1.   Workers' compensation -- due process -- factors considered. --
     The United States Supreme Court has identified three factors
     to be considered when determining what type of due process is
     warranted: (1) the private interest that will be affected by
     the official action; (2) the risk of an erroneous deprivation
     of such interest through the procedures used, and probable
     value, if any, of additional procedural safeguards; and (3)
     the government's interest, including fiscal and administrative
     burdens that the additional or substitute procedures would
     entail.  

2.   Workers' compensation -- due process -- two factors clearly
     applicable. -- The appellate court, in applying the three
     factors to be considered in determining what type of due
     process was warranted, found that the private interest in
     workers' compensation disability benefits is considerable, and
     that additional or substitute procedures would not be unduly
     burdensome; however, even though additional procedures would
     not be unduly burdensome, appellant failed to show that they
     would provide any additional protections.


3.   Administrative law & procedure -- adjudicator presumed to be
     unbiased -- specific reason required for disqualification. --
     An adjudicator is presumed to be unbiased, and to overcome
     that presumption, a litigant must make a showing of a conflict
     of interest or some other specific reason for
     disqualification; in general, the test is whether the
     adjudicator's situation is one that might lead him not to hold
     the balance between the parties clear and true. 

4.   Workers' compensation -- due process protection -- no bias in
     decisions or in composition of Commission. -- The findings
     made by the Workers' Compensation Commission revealed nothing
     that would support or indicate bias in the Commission's
     decisions; similarly, there is nothing inherent in the
     composition of the Arkansas Workers' Compensation Commission
     that would make the manner in which its members are selected
     unconstitutional; the fact that the members of the Commission
     are selected based upon their status as former employers or
     employer representatives or as former employees or employee
     representatives does not in any way create inherent bias.

5.   Workers' compensation -- Commission members classed as
     representatives -- meaning of representatives as contemplated
     by the statute. -- Members of the Workers' Compensation
     Commission are classed as representatives; "representative,"
     as contemplated by Ark. Code Ann.  11-9-201, means a typical
     example of a group, class, or quality; the designation of
     commissioners as employee or employer representatives merely
     refers to the particularized knowledge that each commissioner
     possesses with respect to the divergent interests present in
     workers' compensation claims; this is clearly shown in the
     statutory requirement that commissioners have five years'
     experience in their respective fields to qualify for
     appointment to the Commission.

6.   Statutes -- act of legislature presumed constitutional --
     party challenging bears burden of proof. -- It is well settled
     that an act by the legislature is entitled to a presumption of
     constitutionality; the party challenging a statute has the
     burden of proving it unconstitutional. 

7.   Workers' compensation -- Commission members have no pecuniary
     interest in outcome of cases -- employers not denied due
     process. -- Members of the Commission are full-time
     commissioners who are required to devote their entire time to
     the duties of the Commission and are not required to advocate
     the interests of a special group; there is no pecuniary gain
     to the commissioners based upon the manner in which they vote,
     because their salary is determined by the state legislature
     and not private interest groups; appellant failed to show that
     the manner in which members of the Commission are appointed
     violated his due process rights; the finding of the Commission
     that its composition did not deny claimants due process of law
     was affirmed.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Tolley & Brooks, P.A., by:  Jay N. Tolley, for appellant.
     Michale H. Mashburn, for appellee.
     Winston Bryant, Att'y Gen., by:  Leigh Anne Yeargan, Asst.
Att'y Gen., amicus curiae, for the Workers' Compensation
Commission.

     Olly Neal, Judge.   
     This is the second appeal to this court of this workers'
compensation matter.  In Quinn v. Webb Wheel, 52 Ark. App. 208, 915 S.W.2d 740 (1996), we remanded for the Commission's consideration,
the appellant's challenge to the constitutionality of Ark. Code
Ann.  11-9-201 (Repl. 1996).  On remand, the Commission held that
the composition of the Commission does not deny claimants due
process of law.  In the present appeal, appellant contends that
Ark. Code Ann.  11-9-201, must be found unconstitutional because
the manner in which the Workers' Compensation Commission members
are chosen denies litigants due process of law.  For reasons
discussed herein, we hold that Ark. Code Ann.  11-9-201 is
constitutional. 
     Appellant argues that the Commission should be abolished
because at least two members are not impartial and independent, but
instead are aligned and identified with respective interests.  The
Arkansas Workers' Compensation Commission is comprised of three
members who are appointed by the Governor for terms of six years,
and are required to devote their entire time to the duties of the
Commission.  Ark. Code Ann.  11-9-201 (a) (Repl. 1996).  One
member must have been an attorney who has represented employers in
workers' compensation matters for at least five years or an
individual who has been an employer; one member must have
represented employees for at least five years in workers'
compensation matters; and the third member, the chairman of the
Commission, must have been engaged in the active practice of law in
the State of Arkansas for five years preceding his appointment. 
See Ark. Code Ann.  11-9-201 (a)(1)(2)(3) (Repl. 1996).
     Appellant argues that the statute creating the Workers'
Compensation Commission is unconstitutional because the affiliation
of the commissioners to certain interests is violative of the Due
Process Clauses of both the Arkansas and United States
Constitutions.  This argument assumes that at least two Commission
members have inherent prejudices or biases stemming from their
former business relationships.  The particular issue is heretofore
undecided by our courts.  Therefore, we must look to other courts
for guidance in this matter.
     The United States Supreme Court has identified three factors
to be considered when determining what type of due process is
warranted.  See Matthews v. Eldridge, 424 U.S. 319 (1976).  The
factors to be considered are (1) the private interest that will be
affected by the official action; (2) the risk of an erroneous
deprivation of such interest through the procedures used, and
probable value, if any, of additional procedural safeguards and (3)
the government's interest, including fiscal and administrative
burdens that the additional or substitute procedures would entail. 
Id. at 332.  We have no difficulty in declaring that the private
interest in workers' compensation disability benefits is
considerable.  Nor do we hesitate in concluding that additional or
substitute procedures would not be unduly burdensome.  However,
even though additional procedures would not be unduly burdensome,
appellant has failed to show that they would provide any additional
protections.  We therefore focus on the second Matthews factor,
i.e., the risk of an erroneous deprivation of the protected
interest through the procedures used.
     We begin with the premise that an adjudicator is presumed to
be unbiased, and to overcome that presumption, a litigant must make
a showing of a conflict of interest or some other specific reason
for disqualification.  See Withrow v. Larkin, 421 U.S. 35, 37
(1975); Gibson v. Berryhill, 411 U.S. 564 (1973); Ward v. Village
of Monroeville, 409 U.S. 57, 60 (1972).  In general, the test is
whether the adjudicator's situation is one that might lead him not
to hold the balance [between the parties] clear and true.  Tumey v.
Ohio, 273 U.S. 510 (1927). 
     In Williams v. Hofley Mfg. Co., 424 N.W.2d 278 (Mich. 1988),
the Supreme Court of Michigan held that the fact that members of
the Workers' Compensation Appeal Board are designated as
representatives of employer interests, of employee interests, or of
the general public, did not create pecuniary interest and, the
employer was not denied due process by a hearing before a two-
member interest-designed panel.  The court reasoned that although
members were drawn from the ranks of attorneys representing
divergent interests, members were forbidden by statute from
engaging in any other business or professional activity and were
required to devote their entire time to performing the duties of
their office.  The court reasoned further, that the statutory
provisions for appointment, service, and removal of members of the
Workers' Compensation Appeal Board did not require that members
continue to advocate interests of a designated group, much less
bind members to decide cases on the basis of the views of interest
groups from which they were selected, and therefore, the employer
was not denied procedural due process.
     The findings made by the Commission reveal nothing that would
support or indicate bias in the Commission's decisions.  Similarly,
there is nothing inherent in the composition of the Arkansas
Workers' Compensation Commission that would make the manner in
which its members are selected unconstitutional.  The fact that the
members of the Commission are selected based upon their status as
former employers or employer representatives or as former employees
or employee representatives does not in any way create the alleged
inherent bias argued by appellant.  The controversy seems to stem
from members of the Commission being classed as representatives. 
Representative has been defined as "standing or acting for another
especially through delegated authority."  Webster's Ninth New Collegiate
Dictionary, 1000 (9th ed. 1990).  Representative is also defined as
"a typical example of a group, class, or quality."  Id.  We believe
that the latter definition of "representative" more adequately
expresses the true nature of the "representative" contemplated by
the statute.  Further, we believe that the designation of
commissioners as employee or employer representative merely refers
to the particularized knowledge that each commissioner possesses
with respect to the divergent interests present in workers'
compensation claims.  Nowhere is this more clear than in the
statutory requirement that commissioners have five years'
experience in their respective fields to qualify for appointment to
the Commission.
     Members of the Commission are full-time commissioners.  As
such, they are required to devote their entire time to the duties
of the Commission, and are not required to advocate the interests
of a special group.  Further, there is no pecuniary gain to the
commissioners based upon the manner in which they vote, because
their salary is determined by our state legislature and not private
interest groups.  See Ark. Code Ann.  11-9-201 (3)(b) (Repl.
1996).  
     It is well settled that an act by the legislature is entitled
to a presumption of constitutionality.  Golden v. Westark Community
College, 58 Ark. App. 209, 948 S.W.2d 108 (1997).  The party
challenging a statute has the burden of proving it
unconstitutional.  See Lambert v. Baldor Elec., 44 Ark. App. 117,
868 S.W.2d 513 (1993).  In the present case, appellant has not
shown that the manner in which members of the Commission are
appointed violates his due process rights. 
     Affirmed.
     Robbins, CJ., and Pittman, Jennings, Rogers, and Meads, JJ., agree.