Walker v. J & J Pest Control & Aetna Insurance

George Howard, Jr., Judge. On January 10, 1980, the Workers’ Compensation Commission denied appellant’s claim for disability and medical benefits purportedly related to injuries by exposure to chemicals used in connection with his employment — pest control. The Commission found that claimant failed to prove his claim by a preponderance of the evidence. On January 29, 1980, after engaging the services of another counsel, claimant filed a motion for rehearing before the Commission, alleging: . . Claimant has a continuing medical disability. . . . [T]he disability is rare and is not entirely understood by the medical profession. . . . “That Claimant has received new evidence which, when fully developed . . . will prove Claimant’s entitlements to compensation. . . ,”1 Respondents, in resisting claimant’s motion, argued essentially that there is no provision in the Arkansas Workers’ Compensation Act or the Rules of the Commission for a motion for rehearing; and that claimant has not demonstrated the purported new evidence, which respondent in effect denies that such evidence should be so characterized, could not have been discovered with the exercise of reasonable diligence prior to the submission of the case to the Commission. On February 11, 1980, the Commission stated in communication to counsel: “The Full Commission is denying the motion for rehearing filed by claimant in the above styled case. It is possible that the motion would be more properly filed as a motion to remand from the Court of Appeals. . . .” (Emphasis added) We view the Commission’s posture in denying claimant’s motion for rehearing as not resting on the merits of the motion, but on the theory that the Commission was without jurisdiction to entertain the motion even if it were inclined to do so. We are of the view that the Commission does have authority to consider a motion for rehearing which is timely filed. While the Rules of the Commission do not seem to deal with the problem in this appeal, we are persuaded that Rules 13 and 23 of the Commission’s Rules authorize reasonableness on the part of the Commission in a variety of circumstances dealing with the prosecution of claims for benefits, in order that the ends of justice may be served. Hence, a liberal construction of the Commission’s Rules lends support to the argument that the Commission does have authority to entertain a petition for rehearing when based on reasonable grounds. Indeed, a quasi-judicial commission should not be deprived of the opportunity to reconsider its ruling, where, as here, the proceedings involving an employee’s claim for injury or death, in the course of his employment, shall be exclusive of all other rights and remedies. It seems that due process and equal protection would require nothing less. In 100 C.J.S., Workmen’s Compensation § 660, page 1001, it is provided: “Where the statute authorizes the commission, on application of either party, to ‘set the award aside and grant a new hearing,’ an employee denied compensation has the same right to a rehearing thereunder as the employer and insurer would have in a case where compensation is granted, and the same principle is applicable where a rule of the commission authorizes parties aggrieved or dissatisfied with an award, order, or decision to apply for a rehearing thereof.”2 Ark. Stat. Ann. § 81-1362 (Repl. 1976) provides: “The Workers’ Compensation Commission is hereby authorized to adopt such rules and regulations and to prescribe such forms as it shall deem necessary or desirable to properly carry out the purpose and intent of this Act.” Rule 2 of the Rules of the Arkansas Workmen’s Compensation Commission states: “The rules of the Commission are subject to amendment at any time, and the Commission will adopt additional rules whenever, in its judgment, the same are advisable.” Inasmuch as § 81-1326 authorizes the Commission to reconsider “any compensation order, award or decision”, on its own motion or upon application of any interested party and “upon such review may make an order or award terminating, continuing, decreasing or increasing for the future the compensation previously awarded”, it seems plain that due process of law dictates that an employee who has been denied benefits should be afforded the same oppportunity to have his claim reconsidered where he has discovered subsequent to the denial of benefits that he has a meritorious claim. Appellant’s motion was filed within 18 days after the Commission’s original order. Moreover, § 81-1325(b) makes it clear that the decision of the Commission does not become final for 30 days, and supports the concept that the Commission has jurisdiction during such 30 day period to reopen the case for further evidence and modification of the decision. See: Mason v. Lauck, 232 Ark. 891, 340 S.W. 2d 575 (1960). Section 81-1362, which empowers the Commission to adopt rules and regulations, is predicated on the assumption that the Commission will adopt such rules and regulations that will carry out the beneficient and remedial purposes of the Workers’ Compensation Act and not frustrate a claimant’s legitimate efforts to present his case. It is basic that the Commission must take a liberal view of the Act, so where one inference would support an award, and another inference would defeat it, the construction favorable to the claimant should be adopted, if factually sound. Stout Construction Company v. Wells, 214 Ark. 741, 217 S.W. 2d 841 (1979). A fortiori, an inference which supports jurisdiction on the part of the Commission to entertain appellant’s motion for rehearing should be adopted. We are further persuaded that the Commission should have considered a hearing on appellant’s motion for rehearing even though counsel waived a hearing. Because of the circumstances surrounding this case and the nature of claimant’s ailment, we are persuaded that the Commission had an affirmative duty to schedule a hearing. Reversed and remanded with directions to determine the merits on the appellant’s motion for rehearing. Penix, J., dissents. Footnotes [1] In support vof his motion, claimant submitted statements from Dr. William Y. W. Au, Professor of Medicine and Pharmacology, Chief Clinical Pharmacology Unit, University of Arkansas for Medical Sciences and VA Medical Center Complex; Dr. Thomas A. Bruce, Dean of the College of Medicine at the University of Arkansas Medical Sciences; and Dr. Dale Y. Peters, Specialist in Allergy and Environmental Diseases, of Dallas, Texas. Dr. Peters’ statement dated January 11, 1980, and filed with the Commission on January 29, 1980 states: “It is my view that Mr. Walker suffered over-exposure to insecticides which damaged his cellular blood cell system so that he now has multiple sensitivities to a variety of environmental factors including foods and environmental chemicals.” [2] Ark. Stat. Ann. § 81-1326 (Repl. 1976) provides: “. • • [T]he Commission may at any time within six [6] months of termination of the compensation period fixed in the original compensation order or award, upon its 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, review any compensation order, award or decision, and upon such review may make an order or award terminating, continuing, decreasing or increasing for the future the compensation previously awarded, . . . The Commission may at any time correct any clerical error in any compensation order or award.