Graves v. Hopper ( 2017 )

Cite as 2017 Ark. App. 631
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-17-254
LUTHER F. GRAVES AND Opinion Delivered: November 15, 2017
FIRSTCOMP INSURANCE
COMPANY APPEAL FROM THE ARKANSAS
APPELLANTS WORKERS’ COMPENSATION
COMMISSION
V. [No. G306961]
TIMOTHY W. HOPPER SUPPLEMENTATION OF THE
APPELLEE RECORD AND SUPPLEMENTATION
OF THE ADDENDUM ORDERED
WAYMOND M. BROWN, Judge
Appellants Luther F. Graves and Firstcomp Insurance Company (collectively
“Graves”) appeal from the Arkansas Workers’ Compensation Commission’s (Commission)
January 13, 2017 opinion affirming and adopting the administrative law judge’s June 7, 2016
opinion in favor of appellee. On appeal, Graves argues that (1) appellee’s claim is time-
barred by Arkansas Code Annotated section 11-9-702(a); and (2) the Commission erred in
finding that he is estopped from asserting the statute of limitations defense because appellee
had actual notice of the existence of a workers’ compensation policy. We are unable to
address the merits of appellants’ argument and order supplementation of the record and
supplementation of the addendum.
On August 26, 2013, appellee fell from a ladder and was injured while working on
a construction crew assembled by Graves. Appellee initially filed a complaint against Ray
Dawson, Jr., and Dixie Planting Company (Dixie). Dawson owns Dixie. The Phillips
County Circuit Court remanded the claim to the Commission for a determination of the
Cite as 2017 Ark. App. 631
employment relationship between Dixie and appellee. The complaint does not appear in
the record or the addendum and neither does the order.
Arkansas Supreme Court Rule 3-3 requires that the record include the complaint
and subsequent orders should appear in the record in chronological order. Arkansas Rule of
Appellate Procedure—Civil 6(e) states that if anything material to either party is omitted
from the record by error or accident, the appellate court, on its own initiative, may direct
that the omission or misstatement shall be corrected, and if necessary, that a supplemental
record be certified and transmitted.
Arkansas Supreme Court Rule 4-2 states that “[t]he addendum shall contain true and
legible copies of the non-transcript documents in the record on appeal that are essential for
the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues
on appeal.” Because the matter began in circuit court and was remanded to the Commission,
rather than by a claim filed with an employer as is typical in these matters—no claim against
Graves, via any form or letter, was filed by appellee in this matter and Graves was made a
party to an already-existing claim against Dixie 1—this court needs not only the complaint
which began this matter, but also the order that remanded the matter to the Commission.
While the ALJ’s June 7, 2016 opinion dismissed Dawson and Dixie, we have nothing
showing how they came to be a party to begin with. Furthermore, this court also notes that
the record and addendum are both missing Dixie’s motion to the Commission to have
Graves joined to the matter as a party, pursuant to which the ALJ noted he was joining
1
Appellee first noticed a direct claim against Graves in his August 26, 2015 complaint
filed in Phillips County Circuit Court. However, there is a factual issue as to whether Graves
knew appellee had a claim against him as his employee.
2
Cite as 2017 Ark. App. 631
Graves as a party in its November 9, 2015 order; and a motion to dismiss from Graves in
Phillips County Circuit Court, to which appellee responded October 13, 2015. The dates
of all these documents are important as both issues on appeal—notice and statute of
limitations—are fact-dependent. Because none of these documents appear in the record or
addendum, we find both the record and the addendum to be deficient so that we cannot
reach the merits of the case.
Accordingly, we remand for supplementation of the record, correcting the above-
referenced deficiencies within thirty days. Additionally, we order appellant to submit a
supplemental addendum correcting the above-referenced deficiencies within fifteen days
from the date on which the supplemental record is filed. We encourage appellant’s counsel
to review Rules 3-3 and 4-2 of the Rules of the Arkansas Supreme Court and Court of
Appeals to ensure that the supplemental record and supplemental addendum comply with
the rules and that no additional deficiencies are present.
Supplementation of the record and supplementation of the addendum ordered.
ABRAMSON and MURPHY, JJ., agree.
Worley, Wood & Parrish, P.A., by: Jarrod S. Parrish, for appellants.
David A. Hodges, for appellee.
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