Wallis v. Whirlpool Corp.

Tom Glaze, Judge,

concurring in part and dissenting in part. I agree with the majority that the Commission did not err in interpreting Ark. Stat. Ann. § 81-1317 (Supp. 1983). However, I agree with Judges Cloninger and Cooper that the Commission never considered appellant’s second point, viz., although appellant failed to prove grounds under Ark. Stat. Ann. § 81-1317(b) (Supp. 1983), which would excuse her failure to give notice of her injury to the employer, the Commission may still excuse such failure under Ark. Stat. Ann. § 81-1343(4) (Repl. 1976).

In sum, appellant’s failure to give notice of her injury is no bar to a claim if she had shown any one of the grounds under § 81-1317(b). All members of this Court agree that appellant failed in her proof under § 81-1317(b), and in this respect, the Commission should be affirmed. Even though appellant failed in that proof, the Commission still had the discretion to excuse appellant’s failure to give notice under § 81-1343(4), but the Commission apparently chose not to exercise any discretion it may have under that provision.

If this case were remanded, I believe it is obvious that the Commission would not excuse appellant’s failure to give notice to her employer, but it is not this Court’s place to exercise the Commission’s discretion under § 81-1545(4). Although the judges affirming this cause state the Commission fully considered appellant’s request under § 81-1343(4), the prevailing opinion recites only findings by the Commission that support its denial of appellant’s claim for her failure to comply with the requirements under § 81-1317(b). For the reasons stated, I believe this cause should be remanded, directing the Commission to exercise its discretion under § 81-1343(4).