The opinion
Jim Hannah, Chief Justice, dissenting. I concur in the majority’s decision rejecting Waste Management’s argument that the appeal was not deemed filed until the payment of the filing fee to the clerk of the Arkansas Workers’ Compensation Commission. However, I must dissent from the majority’s decision rejecting Waste Management’s argument that the Commission’s failure to comply with Ark. Code Ann. § 11-9-711 (b)(1)(A) (Supp. 2003) means that this court should accept the tendered record because fault lies with the Commission.
Arkansas Code Annotated section 11-9-711 (b)(1) (A) provides:
The appeal to the court may be taken by fifing in the office of the commission, within thirty (30) days from the date of the receipt of the order or award of the commission, a notice of appeal, whereupon the commission under its certificate shall send to the court all pertinent documents and papers, together with a transcript of evidence and the findings and orders, which shall become the record of the cause.
(Emphasis added.) It is thus glaringly clear that under the Workers’ Compensation Act, the Commission is under a mandatory 1 duty to assemble and tender the record in workers’ compensation appeals. 2 What the majority fails to understand is that an action under the Workers’ Compensation Act is a statutory action. In J. L. Williams & Sons, Inc. v. Smith, 205 Ark. 604, 608 , 170 S.W.2d 82 (1943), this court stated on the subject of review in workers’ compensation cases:
The nature of the claimant’s cause of action is such that he has no right to insist upon any judicial review except that which the legislature saw fit to provide. The cause of action of one claiming under the workmen’s compensation act is purely statutory. The legislature could, even in the absence of the constitutional authority to provide the forum for adjudicating such claims, have attached to the creation of the claim the condition that such a claim could be enforced only before a commission whose decision on questions of fact should be final.
The Legislature has placed the responsibility of maintaining, preparing, and sending the record to this court on the Commission. Judicial review of decisions of the Commission in workers’ compensation cases is controlled by statute, and the majority errs in blind application of the rules of appellate procedure designed for review of cases appealed from a circuit court. As an example of this error, the majority states, “However, Waste Management was then required to file its record on review within ninety days from the filing of its notice of appeal.” This statement ignores the clear command in Ark. Code Ann. § 11-9-711 that the Commission must send the record to this court, and the majority simply assumes without analysis that Ark. R. App. P. — Civ. 5 applies in this case. The court of appeals has applied Rule 5 in workers’ compensation cases with the caveat that this court has not declared the rule applicable. See Davis v. C & M Tractor Co., 2 Ark. App. 150 , 617 S.W.2d 382 (1981). If Rule 5 is to be applied, then this court should provide some analysis as to how it could apply in the face of contrary, plain and unambiguous language in the workers’ compensation statutes. The assumption in blindly applying the rules of appellate procedure is hard to understand given that the majority acknowledges in the opening paragraph of the majority opinion that section 11-9-711 is “a special statute that sets out how one appeals from an order rendered by the Workers’ Compensation Commission.”
The workers’ compensation statutes have provided for review in the courts since the first act was passed in 1939. Act 319 of 1939 provided for an appeal to the circuit court. The Commission was assigned the duty of creating a record and sending it to the circuit court for review there. Appeal from the decision of the circuit court was “allowed the same as in civil actions. . . .” Act 319, Section 25(b). Application of the normal civil appeals rules and processes under the 1939 act was quite logical and understandable because under Act 319, an appeal to this court was an appeal of a decision of the circuit court. This was application of appellate jurisdiction in the review of an order or decree of a lower court. See Lewellen v. Supreme Court Comm. on Prof'l Conduct, 353 Ark. 641 , 110 S.W.3d 263 (2003).
However, in Act 252 of 1979, the legislature changed the forum of initial judicial review from the circuit court to the newly created court of appeals, and instead of stating that an appeal from circuit court to this court would be as allowed in other civil actions, stated, “Appeals from the Commission to the Court of Appeals shall be allowed as in other civil actions... .” The majority simply assumes that “as in other civil actions”means that we just treat the appeal as any other appeal. The phrase “as in other civil actions” was apparently incidently taken from Act 319 of 1939 and included as part of the redraft in 1979. Regardless, the majority’s application of the rules of appellate procedure to a workers’ compensation appeal creates an absurd result. We do not engage in an interpretation of statutes that creates an absurd result. AT&T v. Arkansas Pub. Serv. Comm’n, 344 Ark. 188 , 40 S.W.3d 273 (2001).
Let us briefly consider the obvious result of the majority’s decision. An attorney is now on notice that although the statute requires the record to be prepared and tendered by the Commission, he or she must monitor the progress and be responsible if the Commission fails to comply with its statutory duty. One must wonder just how an attorney is to fulfill the duty of overseeing the activities of the Workers’ Compensation Commission. Will the attorney be allowed to come in and review progress of the work on his or her record to see if the Commission is timely fulfilling its duty? What if the attorney determines that nothing has been done to prepare and tender the record and only a few days remain before the record must be tendered in this court? A petition for a writ of mandamus is the obvious answer, 3 but just when must an attorney file a petition for mandamus to order the Commission to create and tender the record? If the attorney gets nervous and files the petition too soon, this court will probably reject it because the Commission has time to complete the task. If the attorney waits too long, then the court may reject the petition because there is too little time for the court or the Commission to act. The bottom line of the majority’s decision is that regardless of an attorney’s action or inaction, he or she bears responsibility if the Commission fails to timely send the record even though the attorney has utterly no control over the Commission. To say that is an absurd result is an understatement. Thus, the majority creates yet another trap for the bar and the hapless worker.
The majority’s holding is also directly contrary to the longstanding principle that neither a party nor an attorney is responsible for the actions or inactions of the courts. In Credit Industrial Co. v. Blankenship, 230 Ark. 371, 376 , 323 S.W.2d 198 (1959), this court discussed the loss of original trade acceptances “while in custody of the law,” and stated the maxim: “An act of the Court shall prejudice no man.” See also Bartlett v. Standard Life and Accident Ins. Co., 223 Ark. 37 , 264 S.W.2d 46 (1954). It is basic that a litigant should not be prejudiced by an act of the court. Dutton-Lainson Co. v. McGee, 260 Ark. 494 , 542 S.W.2d 739 (1976). Similar to the case presently before this court, in Dutton, the error was attributed to the clerk. In Thweatt v. Knight & Daughters of Tabor, 128 Ark. 269, 272 , 193 S.W. 508 (1917), this court stated that the principle that an act of the court shall prejudice no person was based “upon justice and good sense.” (quoting Herbert Chitty, Broom’s Legal Maxims, at 99 (8th ed. 1911)). How can an attorney be held responsible for tendering a record over which he or she has no control?
Under the facts of this workers’ compensation case, and the language of Ark. Code Ann. § 11-9-711 , the majority’s statement that “[t]his court has always required attorneys to manage their practices and timely lodge the records in their clients’ cases, and this case does not constitute an exception,” is puzzling. Because it is the duty of the Commission to prepare and provide the record to this court, I would grant the motion and order the clerk to file the record based on a failure of the Commission to fulfill its duty. There was a failure of the Commission to comply with the statute; therefore, we need not discuss acts of God. This court should order the clerk to file the record.
Brown and Gunter, JJ., join. Ark.Code Ann.§ 11-9-711(b)(1)(A) (Supp. 2003) states that the Commission “shall” send the record to this court. When interpreting statutory language this court has found that the word “shall” in the statute indicates mandatory compliance with the statute’s terms unless compliance would result in an absurdity. Marcum v. Wengert, 344 Ark. 153 , 40 S.W.3d 230 (2001).
I recognize that the Commission has instituted an informal procedure whereby the attorney is notified that the record is ready and may be picked up. Thus, under current practice, attorneys are carrying the record to this court; however, attorneys still have no control over the Commission to assure that the record is created, and I reject any notion that this informal process may be substituted by the Commission in the place of its statutorily declared duties.
I recognize that the court of appeals in Hillgas v. Potashnick Constr. Co., 51 Ark. App. 207 , 912 S.W.2d 945 (1995) stated that an attorney should file a petition for a writ of certiorari “about three weeks before the record is required to be filed in the appellate court.” However, while this is an understandable attempt to solve the problem by an advisory statement in an opinion, Ark. Code Ann. § 11-9-711 (b)(1) (A) (Supp. 2003) squarely places the burden on the Workers’ Compensation Commission and “about three weeks” appears to be a suggestion rather than any holding on which an attorney might rely when the petition is denied.