Smith v. Everett

Melvin Mayfield, Chief Judge, concurring. I concur in the denial of the petiton for rehearing filed by the Director of Labor. The basis of my concurrence is the last sentence of our opinion which reads: “As a part of this decision we further hold that the Board does not have jurisdiction to accept additional evidence in appeals pending before it. See Brown Jordan v. Dukes, 269 Ark. 581, 583 , 600 S.W.2d 21 (Ark. App. 1980); and Brewer v. Everett, 3 Ark. App. 59 , 621 S.W.2d 883 (1981).”

Those cases were concerned with Ark. Stat. Ann. § 81-1107 (d) (3) (Repl. 1976) which describes the procedure for review by the Board of Review as follows:

Upon review on its own motion or upon appeal, the Board may on the basis of the evidence previously admitted in such case, or upon the basis of such additional evidence as it may direct be taken, affirm, modify or reverse the findings and conclusions of the appeal tribunal.

The above provision was quoted in Brown Jordan v. Dukes, where this court said, “We interpret ‘previously submitted’ to mean submitted in some previous hearing at which either party would have an opportunity to question or support it.” That statement was quoted, and the decision of Brown Jordan again approved, in Brewer v. Everett, Director. The statute also provides that the board may “direct” that “additional” evidence be taken and both Brown Jordan and Brewer held that statements sent to the board after the hearing before the appeals referee did not constitute “additional evidence” directed to be taken by the board.

Thus, the last sentence in our opinion states our holding in Brown Jordan and in Brewer and is not new. The holding of our Supreme Court in Smith v. Everett, 276 Ark. 430 , 637 S.W.2d 537 (1982), makes it necessary, however, for us to insist that the procedure in Brown Jordan and Brewer be followed. In most of our appeals from the Board of Review neither party is represented by an attorney. Considering the number of appeals filed, it is almost beyond our capacity to determine on our own whether the appellant has waived the opportunity to cross-examine the witness who sends “new” evidence to the board in the form of a written statement; or whether the pro se appellant has raised the cross-examination issue before the board; or whether a party has been prejudiced by the board’s failure to follow the procedure indicated in Brown Jordan and Brewer. On the other hand, it is quite apparent that there has been no opportunity to confront and cross-examine adverse witnesses when they testify for the first time by written statement furnished to the board.

The petition for rehearing points out that there is language in Ark. Stat. Ann. § 81-1107 (d) (1) (Repl. 1976) which authorizes the chairman of the Board of Review to appoint a reporter to take and transcribe testimony taken before the board and that § 81-1107 (d) (7) (Supp. 1981) provides that the Court of Appeals may remand a matter and order additional evidence to be taken before the board. Neither provision, however, negates our holding that under § 81-1107 (d) (3) (Repl. 1976) the board does not have jurisdiction to accept additional evidence in appeals pending before it.