The opinion
JOHN MAUZY PITTMAN, Judge, concurring.
U write separately not merely to refute the opinions of the dissenting judges, but also to. state my disappointment and frustration with the majority’s refusal to enunciate a clear standard to be used in determining whether evidence presented to the Commission has been “arbitrarily disregarded.” The doctrine relating to arbitrary disregard of evidence began in Arkansas in the context of railroad cases, where juries engaged in speculation to find negligence in the face of uncontradicted eyewitness testimony by railroad employees describing the circumstances of the accident. The Arkansas Supreme Court held that juries were not permitted , to grant verdicts for a plaintiff — the party with the burden of proof — in the face of uncontradicted eyewitness evidence to the contrary. See generally Landis v. Hastings, 276 Ark. 135 , 633 S.W.2d 26 (1982).
That doctrine has been turned on its head in workers’ compensation cases 1 as it is [ ^frequently argued by attorneys, and we have sometimes held, that the Commission has “arbitrarily disregarded” contradicted evidence, reversing and remanding with directions to enter judgment in favor of the party with the burden of proof. See, e.g., Woodall v. Hunnicutt Construction, 67 Ark.App. 196 , 994 S.W.2d 490 (1999), rev’d, 340 Ark. 377 , 12 S.W.3d 630 (2000). 2 This is clearly wrong. This confusion is in large part attributable to the failure to define arbitrary disregard of evidence, and failure to reconcile this doctrine with the unassailable fact that our review is limited by statute to determining whether there is substantial evidence to support the Commission’s findings. 3
|7What must be shown to demonstrate that the Commission has arbitrarily disregarded evidence? In the context of appellate review of administrative decisions in general, our supreme court has held that, in order for an administrative action to be invalid as arbitrary, the action must either lack any rational basis or hinge on a finding of fact based on an erroneous view of the law. Pine Bluff for Safe Disposal v. Arkansas Pollution Control and Ecology Commission, 354 Ark. 563 , 127 S.W.3d 509 (2003); Arkansas Professional Bail Bondsman Licensing Board v. Oudin, 348 Ark. 48 , 69 S.W.3d 855 (2002). An arbitrary act is thus an illegal or unreasoned act; an act is not arbitrary simply because the reviewing court would have acted differently. Woodyard v. Arkansas Diversified Insurance Co., 268 Ark. 94 , 594 S.W.2d 13 (1980). Proving that mere error has occurred is not sufficient to meet this test. Id.; Bryant v. Arkansas Public Service Commission, 55 Ark.App. 125 , 931 S.W.2d 795 (1996).
The dissenting judges and, it appears, the majority, reject my assertion that the above-cited cases defining arbitrariness in administrative cases are applicable to our review of decisions of the Workers’ Compensation Commission which, of course, is itself an administrative agency. This is regrettable; our refusal to expressly define what does and does not constitute arbitrary disregard of evidence leads to arguments, such as that made in the present case, that the Commission arbitrarily disregarded the medical opinion of one doctor because the opinion offered by a different doctor was entitled to much greater weight. This |Rargument is frequently made on appeal and is utterly contrary to our standard of review, yet, for some inexplicable reason, the majority has refused to directly confront it in this case. Our inability to agree on the proper standard of review to be applied in such cases leads to the absurd result that we frequently reverse the Commission on the grounds that it has arbitrarily disregarded evidence by employment of a standard that is so vague as to itself be arbitrary.
The answer to the argument raised by appellant in this case is that we are unconcerned with the weight of the opposing testimony. We ignore it in our review. See Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 385, 389 , 557 S.W.2d 868, 872, 874 (1977); Arkansas Wood Products v. Atchley, 21 Ark.App. 138, 141-42 , 729 S.W.2d 428, 430 (1987). The findings of the Arkansas Workers’ Compensation Commission have the force and effect of a jury verdict; thus, we cannot reverse the Commission’s findings unless we could reverse a judgment based upon a jury verdict concerning the same question. Barks-dale Lumber Co. v. MeAnally, supra. In deciding whether there is substantial evidence to sustain the Commission’s findings, we review only the sufficiency of the evidence, not the weight thereof: the reviewing court in workers’ compensation cases considers only the evidence that is most favorable to the Commission’s findings, Clark v. Peabody Testing Service, 265 Ark. 489 , 579 S.W.2d 360 (1979), and we view and interpret that evidence, along with all reasonable inferences deducible therefrom, in the light most favorable to those findings. Barksdale Lumber Co. v. McAnally, supra. The preponderance of the evidence does not concern us. Ozan Lumber Co. v. Garner, 208 Ark. 645 , 187 S.W.2d 181 (1945). | ¡Weighing the evidence is within the sole province of the Commission, and questions of weight are beyond the scope of appellate review. Maupin v. Pulaski County Sheriff’s Office, 90 Ark.App. 1 , 203 S.W.3d 668 (2005). 4
The Arkansas Supreme Court has, since the inception of the workers’ compensation 11ftlaw, maintained the same standard of review in reviewing the findings of the Commission: when a fact finding of the Commission is challenged on appeal, it will be affirmed if it is supported by substantial evidence. See, e.g., Ozan Lumber Co. v. Garner, supra; Meyer v. Seismograph Service Corp., 209 Ark. 168 , 189 S.W.2d 794 (1945); Clark v. Peabody Testing Service, supra; Sierra v. Griffin Gin, 374 Ark. 320 , 287 S.W.3d 556 (2008). In Scarbrough v. Cherokee Enterprises, 306 Ark. 641 , 816 S.W.2d 876 (1991), the supreme court expressly rejected the standard that the appellant in this case, and many others, asks us to employ. See note 4, supra. The reticence of the majority and the apparent denial by the dissenting judges of the existence of this controlling law has and will continue to invite disappointed claimants to argue on appeal that favorable evidence has been “arbitrarily disregarded” in the hope that we will rectify this injustice by arbitrarily ordering the Commission to award benefits. 5
Because there is no agreement on this court regarding the proper standard of review in workers’ compensation cases, our application of it differs widely from opinion to opinion. I hope that the supreme court will address the problem and issue specific guidelines appropriate to examining appeals for sufficiency in general and arbitrary disregard of evidence in particular that can be evenly applied.
I respectfully concur.
. An excellent example of this phenomenon is found in Judge Robbins’s dissent, where he says that "if the claimant's disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee's condition, we may say without hesitation that there is no substantial evidence to sustain the Commission’s refusal to make an award.” Thus, in Judge Robbins’s view, the claimant's burden of proof is discharged by a presumption of compensability despite the General Assembly’s dictate that, in determining whether a party has met the burden of proof on an issue, the Commission must weigh the evidence impartially, without giving the benefit of the doubt to any party. Ark.Code Ann. § 11 — 9— 704(c)(4) (Repl.2002). Judge Robbins relies on Heptinstall v. Asplundh Tree Expert Co., 84 Ark.App. 215 , 137 S.W.3d 421 (2003); Wal-Mart Stores, Inc. v. Stotts, 74 Ark.App. 428 , 49 S.W.3d 667 (2001); and Min-Ark Pallet Co. v. Lindsey, 58 Ark.App. 309 , 950 S.W.2d 468 (1997). However, those cases misstate the law by relying on a line of cases requiring that the Commission give the benefit of the doubt to the claimant when determining factual issues. As the learned Justice Dudley said in Wade v. Mr. C. Cavenaugh's, 298 Ark. 363 , 768 S.W.2d 521 (1989), ''[T]his is no longer the law. Act 10 of 1986, Second Extraordinary Session, codified as Ark. Code Ann. 1 1-9-704(c)(4) (1987) changed the existing law to provide that in determining whether a party has met its burden of proof, Administrative Law Judges and the Commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party.” 298 Ark. at 367 , 768 S.W.2d at 522-23 . That this doctrine continues to find its way into our opinions two decades after being pronounced defunct by the Arkansas Supreme Court is a measure of the degree of resistance to and deviation from the standard of review enunciated by the legislature and supreme court.
. Judge Baker's continued insistence that I have given no examples of our misapplication of the doctrine of "arbitrary disregard” of evidence puzzles me. See also note 1 supra and note 4 infra. Most of the more egregious misapplications of the doctrine are found in unpublished opinions that I am precluded by Arkansas Supreme Court Rule 5-2 from citing. However, these cases exist, and interested researchers are invited to read them and draw their own conclusions.
. In her dissent, Judge Baker states that my discussion of the law relating to the arbitrary disregard of evidence in workers’ compensation cases has no place in the analysis of this case. However, appellant repeatedly asserts that the Commission arbitrarily disregarded the testimony of Dr. Raben in finding that appellant sustained only a lumbar strain rather than a herniated disc as a result of her compensable injury, and therefore erred in denying additional medical benefits, temporary-total-disability benefits, and attorney's fees. Plainly, a discussion of these issues is essential to a decision of the issues before us.
. These rules have at times been ignored or grossly misapplied by the appellate court. One example is the case of Bohannon v. Wal-mart Stores, Inc., 102 Ark.App. 37 , 279 S.W.3d 502 (2008), which is cited by Judge Baker in her dissent. We held that expert testimony was not substantial, relying in part upon our conclusion that the physician’s assumption that the exposure time was brief was not substantial because "appellant's coworkers testified that they left the work area thirty minutes after noticing the chemical odor.” 102 Ark.App. at 43 , 279 S.W.3d at 507 . In that and other such cases, we have in effect determined the substantiality of evidence not by viewing the evidence in the light most favorable to the Commission's findings, but instead by taking into account whatever in the record fairly detracts from its weight. But this standard was expressly rejected in Scarbrough v. Cherokee Enterprises, 306 Ark. 641 , 816 S.W.2d 876 (1991). There, the Arkansas Supreme Court, squarely confronted with the issue, declined to adopt a standard redefining substantial evidence as based on an examination of the record as a whole — i.e. by comparing the Commission's findings to contrary evidence in the record — because it felt constrained by stare decisis and found no compelling reason to overrule fifty years of established precedent regarding the interpretation of "substantial evidence” with respect to appeals from the Commission. 306 Ark. at 644-45 , 816 S.W.2d at 877-78 . Although the supreme court has not seen fit to change the law in the eighteen years since the Scarbrough decision, we have frequently employed, sub silentio, the "substantial evidence on the record as a whole" standard rejected therein by
finding that contrary evidence was arbitrarily disregarded. To ignore the established standard of review in order to apply, when we see fit, a different standard that has been expressly rejected by the supreme court is truly arbitrary.
In her dissent in the instant case, Judge Baker waxes eloquent about the need for each party and entity involved in workers’ compensation appeals to dutifully perform their assigned function, and then states that she would reverse on the basis of an argument never made by the claimant, below or on appeal. We are, of course, prohibited from reversing on such grounds. See Hill v. White-Rodgers, 10 Ark.App. 402 , 665 S.W.2d 292 (1984). To do so would be to ignore our role as impartial arbiter and assume the mantle of advocate.
. Despite a diligent search, I have been unable to find a single workers’ compensation case in which we have held that evidence favorable to an employer or insurer was arbitrarily disregarded.