Priest v. United Parcel Serv.
Annotate this Case
Rebekah PRIEST v. UNITED PARCEL SERVICE
CA 97-5 ___ S.W.2d ___
Court of Appeals of Arkansas
Division I
Opinion delivered September 17, 1997
1. Workers' compensation -- matter reversed and remanded for Commission to
make specific findings of fact on due process issue. -- The appellate
court could not reach the merits of appellant's due process
issue where the Workers' Compensation Commission did not make
findings of fact in support of its conclusion that appellant
was not denied due process; the Commission must find as facts
the basic component elements on which its conclusion is based;
such fact-findings are necessary to permit appellate review of
the constitutional issues presented; because the court was
unable to determine the facts upon which the Commission relied
in concluding that appellant's due process rights were not
violated, it reversed and remanded the matter for the
Commission to make specific findings of fact.
2. Workers' compensation -- parties appearing before Commission should not be
deprived of due process of law. -- Parties appearing before
administrative agencies are entitled to due process in the
proceedings; the Workers' Compensation Commission is no
exception; parties appearing before the Commission should not
be deprived of the essential requisites of due process of law.
3. Workers' compensation -- right to cross-examine adverse witnesses extends
to parties before Commission. -- One aspect of due process is the
opportunity to subpoena and cross-examine adverse witnesses;
the right to cross-examine adverse witnesses extends to
parties appearing before the Workers' Compensation Commission.
4. Workers' compensation -- hearing cannot be conducted so that party is
denied right to cross-examine adverse witness. -- Although the
Workers' Compensation Commission is an administrative agency,
and the technical rules of evidence do not apply to its
procedure, a litigant has the right to cross-examine a
witness; a hearing before the Commission cannot be conducted
in such a way that a party is denied the right to cross-
examine an adverse witness.
5. Workers' compensation -- Commission's discretion to issue subpoenas cannot
be exercised to deny party reasonable opportunity to cross-examine adverse
witness. -- The Workers' Compensation Commission has some
discretion in the issuance of subpoenas to compel the
attendance of witnesses at its hearings; the Commission's
discretion to issue subpoenas cannot be exercised in such a
way that a party is denied a reasonable opportunity to cross-
examine an adverse witness.
6. Trial -- right to cross-examine may be waived. -- In some instances,
the right to cross-examine must be reserved in a timely
fashion; the right to cross-examine may be waived.
Appeal from Arkansas Workers' Compensation Commission;
reversed and remanded.
Compton, Prewett, Thomas & Hickey, P.A., by: Floyd M. Thomas,
Jr., for appellant.
Friday, Eldredge & Clark, by: James C. Baker, Jr., for
appellees.
D. Franklin Arey, III, Judge.
The appellant, Rebekah Priest, challenges the Workers'
Compensation Commission's determination that she sustained a 5%
impairment to the body as a whole. This rating is based upon an
independent medical evaluation by Dr. Jim Moore. The claimant
sought to cross-examine Dr. Moore at the hearing before the
Administrative Law Judge pursuant to Ark. Code Ann. 11-9-705
(c)(2)(B) (Repl. 1996). When the ALJ failed to issue a subpoena to
ensure Dr. Moore's presence, appellant raised a due process claim
grounded on the denial of her right to cross-examine Dr. Moore at
the hearing. We reverse and remand.
The parties stipulated that the appellant sustained a
compensable back injury on November 2, 1990. Her injury was
primarily treated by Dr. Phillip Johnson; he assigned the appellant
permanent physical impairment to the extent of 15% to the body as
a whole. The appellant agreed to an independent medical evaluation
by Dr. Moore. Dr. Moore's report of this evaluation, dated
September 13, 1993, opined that the appellant sustained a 5%
impairment to the body as a whole.
The employer indicated its intent to offer Dr. Moore's
independent medical evaluation into evidence. The appellant
requested the opportunity to cross-examine Dr. Moore by deposition,
but cancelled a scheduled deposition contending that she was unable
to pay Dr. Moore's fees. Thereafter, the appellant requested that
the employer produce Dr. Moore for cross-examination at the hearing
before the Administrative Law Judge pursuant to Ark. Code Ann.
11-9-705(c)(2)(B). When the employer declined, the appellant
sought a subpoena for Dr. Moore pursuant to Ark. Code Ann. 11-9-
706(a). The ALJ did not issue the requested subpoena. The
appellant then objected to the introduction of Dr. Moore's report,
arguing that she was denied due process because she was unable to
cross-examine Dr. Moore.
The ALJ concluded that the appellant was not denied due
process by the admission of Dr. Moore's medical evaluation into
evidence. The ALJ cited Dr. Moore's report, and determined that
Dr. Moore's rating of 5% impairment was more accurate than Dr.
Johnson's rating of 15%. The full Commission affirmed and adopted
the ALJ's decision as its own decision.
On appeal, the appellant presses her claim that her due
process right to cross-examine Dr. Moore was violated by the ALJ's
failure to issue the requested subpoena. We cannot reach the
merits of this issue. The full Commission did not make findings of
fact in support of its conclusion that the appellant was not denied
due process. "The Commission must find as facts the basic
component elements on which its conclusion is based." Lowe v. Car
Care Marketing, 53 Ark. App. 100, 102, 919 S.W.2d 520, 521 (1996).
Such fact-findings are necessary to permit appellate review of the
constitutional issues presented. Green v. Smith & Scott Logging,
54 Ark. App. 53, 54-55, 922 S.W.2d 746, 747 (1996). Since we are
unable to determine the facts upon which the Commission relied in
concluding that appellant's due process rights were not violated,
we reverse and remand for the Commission to make specific findings
of fact. Lowe, 53 Ark. App. at 102-103, 919 S.W.2d at 521.
We take this opportunity to provide the Commission with some
guidance on remand. Parties appearing before administrative
agencies are entitled to due process in the proceedings. U.S.
Const. amend. XIV, 1; Ark. Const. art. II, 8; see Smith v.
Everett, 276 Ark. 430, 637 S.W.2d 537 (1982); Arkansas Pub. Service
Comm'n v. Continental Tel. Co., 262 Ark. 821, 561 S.W.2d 645
(1978); Arkansas State Bd. of Nursing v. Long, 8 Ark. App. 288, 651 S.W.2d 109 (1983). The Workers' Compensation Commission is no
exception: parties appearing before the Commission should not be
deprived of the essential requisites of due process of law. See
Aetna Cas. & Sur. Co. v. Dyer, 6 Ark. App. 211, 639 S.W.2d 536
(1982); 7 Arthur Larson, The Law of Workmen's Compensation 79.25(c)
(1997).
One aspect of due process is the opportunity to subpoena and
cross-examine adverse witnesses. Branch v. Hempstead County Mem'l
Hosp., 539 F. Supp. 908 (W.D. Ark. 1982) (cross-examination); Smith,
276 Ark. at 431-32, 637 S.W.2d at 538. The right to cross-examine
adverse witnesses extends to parties appearing before the Workers'
Compensation Commission. See Davis v. Arkansas Best Freight Sys.,
Inc., 239 Ark. 632, 393 S.W.2d 237 (1965); accord, Commercial Union
Companies v. Smallwood, 550 P.2d 1261 (Alaska 1976); Artis v.
Industrial Comm'n, 164 Ariz. 452, 793 P.2d 1119 (Ariz. Ct. App.
1990); Scheytt v. Industrial Comm'n, 134 Ariz. 25, 653 P.2d 375
(Ariz. Ct. App. 1982); Hart v. J.J. Newberry Co., 179 Mont. 160,
587 P.2d 11 (1978); 7 Larson, supra, 79.25(c).
The Commission is not "bound by technical or statutory rules
of evidence or by technical or formal rules of procedure...." Ark.
Code Ann. 11-9-705(a). That does not end our inquiry. "It is
true that the Workmen's Compensation Commission is an
administrative agency and that the technical rules of evidence do
not apply to its procedure..., nevertheless, it has been repeatedly
held that a litigant has the right to cross-examine a witness."
Davis, 239 Ark. at 634, 393 S.W.2d at 238 (citation omitted); see
Hart, 179 Mont. at 162, 587 P.2d at 12. Thus, a hearing before the
Commission cannot be conducted in such a way that a party is denied
the right to cross-examine an adverse witness.
The Commission also has some discretion in the issuance of
subpoenas to compel the attendance of witnesses at its hearings.
Ark. Code Ann. 11-9-706(a). Of what moment is the right to
cross-examine an adverse witness, if that adverse witness cannot be
brought to the hearing by subpoena? The Commission's discretion to
issue subpoenas cannot be exercised in such a way that a party is
denied a reasonable opportunity to cross-examine an adverse
witness. Cf. Smith, 276 Ark. at 432, 637 S.W.2d at 538 (in a
proceeding before the appeals tribunal, the opportunity to subpoena
and cross-examine witnesses is a component of due process). This
is consistent with our supreme court's concern for the rights of
parties appearing before administrative agencies.
Where reliance is placed by an administrative agency upon
testimony of certain witnesses in making a critical
factual determination, it will be an abuse of discretion
to fail to hear material evidence which might impeach,
not only the testimony, but the findings made by the
agency as well. ... The more liberal the practice in
admitting testimony, the more imperative is the
obligation to preserve the essential rules by which
rights are asserted or defended.
Arkansas Pub. Service Comm'n, 262 Ark. at 838-39, 561 S.W.2d at 655
(citations omitted).
We do not mean to suggest that parties can rest on their right
to cross-examine adverse witnesses in administrative proceedings.
In some instances, the right to cross-examine must be reserved in
a timely fashion. See Chambers v. Bigelow-Liptak Corp., 233 Ark.
330, 344 S.W.2d 588 (1961). The right to cross-examine may be
waived. See Palazzolo v. Nelms Chevrolet, 46 Ark. App. 130, 877 S.W.2d 938 (1994).
We want to be clear as to what this opinion does not
determine. We do not reach the merits of this matter; we do not
decide whether appellant has a valid constitutional claim, and we
do not decide whether there is substantial evidence to support the
Commission's award. We simply note that we cannot affirm the
Commission's decision, because there is a question whether the
appellant's procedural due process claim was properly disposed of
below. This question can only be answered after the Commission
makes its findings of fact.
Reversed and remanded.
Crabtree, J., agrees.
Pittman, J., concurs.
John Mauzy Pittman, Judge, concurring.
I agree with the Court's decision to reverse and remand for
the Commission to make adequate findings of fact. I write
separately to note that the guidance provided to the Commission on
remand is mere dicta which binds neither the Commission on remand
nor this court in a subsequent appeal. While the general citations
of law relating to due process in the majority opinion may be
correct, it does not follow that they are apropos in the case at
bar, or that the parties and the Commission will find them to be
helpful. It must be remembered that the facts of this case have
yet to be determined and, as Mr. Justice Jackson stated in Armour
& Co. v. Wantock, 323 U.S. 126, 132 (1944):
It is timely again to remind counsel that words of our
opinions are to be read in the light of the facts of the
case under discussion. To keep opinions within
reasonable bounds precludes writing into them every
limitation or variation which might be suggested by the
circumstances of cases not before the Court. General
expressions transposed to other facts are often
misleading.
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