Green v. Smith & Scott Logging , 54 Ark. App. 53 ( 1996 )

JAMES R. Cooper, Judge.

The appellant in this workers’ compensation case sustained a scheduled injury resulting in 10% impairment to his left arm. He filed a workers’ compensation claim seeking benefits for permanent total disability. In addition, he argued that the denial of wage-loss benefits in scheduled injury cases where less than total disability is sustained is an unconstitutional denial of equal protection. The Commission found that the appellant failed to prove that he was permanendy and totally disabled, but did not rule on the constitutional issue. From that decision, comes this appeal.

For reversal, the appellant contends that the denial of wage-loss benefits in scheduled injury cases is violative of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. We remand for the Commission to consider the constitutional issue raised by the appellant.

We have consistendy held that constitutional issues must be raised before the Commission in order to preserve them for appeal to this Court. See, e.g., Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991); Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989); International Paper Co. v. McBride, 12 Ark. App. 400, 678 S.W.2d 375 (1984). The cases have not, however, been consistent with regard to the Commission’s authority and duty to decide such constitutional issues. In International Paper Co. v. McBride, supra, we decided the constitutional question although the Commission had declined to rule on the issue when it was raised before them. In Quinn v. Webb Wheel, 52 Ark. App. 208, 915 S.W.2d 740 (1996), we held that it was necessary to obtain a ruling on the constitutional issue from the Commission in order to preserve the question for appellate review.

We think it important to clarify, for the benefit of the Commission and the bar, the manner in which constitutional issues are to be preserved for review by this Court. We have observed that constitutional issues which have been raised before but not decided by the Commission are often presented to us in an unfocused state, devoid of the factual development necessary for decision. Consequently, we hold that the Commission is required to rule on constitutional questions that are properly before it.

This procedure was tacitly approved by the Arkansas Supreme Court in Hamilton v. Jeffrey Stone Co., 293 Ark. 499, 739 S.W.2d 161 (1987). We believe that requiring the Commission to decide constitutional issues will ensure that the Commission takes a “hard look” at the question, thereby giving us the benefit of its experience and expertise. See Sierra Club v. Robertson, 784 F.Supp. 593 (W.D. Ark. 1991), aff’d 28 F.3d 753 (8th Cir. 1994). Such a requirement would also serve the important purpose of presenting us with fact-findings sufficient to permit the constitutional issues to be decided. This will prevent many needless remands, in keeping with our policy of discouraging piecemeal appeals in workers’ compensation case. See, e.g., Baldor Electric Co. v. Jones, 29 Ark. App. 80, 777 S.W.2d 586 (1979).

Because of the inconsistencies in our prior decisions regarding the need to obtain a ruling from the Commission in order to preserve a constitutional issue for appeal, we think it would be unduly harsh to impose our ruling retrospectively. Therefore, we do not affirm for lack of a ruling, but instead we remand to the Commission for such further proceedings as it deems necessary consistent with this opinion.

Remanded.

Pittman, Mayfield, Stroud, and Griffen, JJ„ agree. ROBBINS, J., concurs in the result.