JANUARY 1990

r-------------------------

Two More Reasons 10 Use CT's 1JeIIuIwre ExpressTil Service!

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FReSimile Documents!

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Rush incorporation? Simply fax a legible copy of your Delaware Certificate of Incorporation to either our Wilmington or Dover office.

We'll arrange for the filing as soon as it is received. Want to save the extra handling fee imposed by the state for rush filings> JUSt make sure C T reserves the name and we're designated registered agent.

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Please keep your local C T Account Representative infortned ofyour facsilnile Irallsnllsslons, so our records call be properly tlOled.

•

CT CORPORATION SYSTEM SerVing (be legal profession since J892

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The 1990 Mid-Year Meeting of the Arkansas Bar Association:

GENERAL PRACTICE UPDATE

Regislralioll Form

1990 Mid-Year Meeting Registration Fees: (Includes program. materials. luncheon. breaks and reception)

Arkansas Bar Member Nonmember

$IIO $135

_ _

(Plca:.c add an additiOll:'!l $25 for each rcgiSlfalion afTer hnuary 15. 1990)

Course Materials only $35 Guest Luncheon Ticket $15 TOTAL ENCLOSED

_ _ _

Please indicate which Concurrent Session you wish to attend for planning purposes: Choose one: _ _ Family Law Update and QDROs _ _ The Ins and Outs of Partnerships Choose one: _ _ Estate Planning and Drafting U.c.c. Article 9

NAMEFORYOURBADGE

_

NAME

_

SUPREME COURT REGISTRATION NUMBER

TITLE/FIRM

_

ADDRESS

_

CITY/STATEfZIP TELEPHONE

January 19 - 20,1990 Excelsior Hotel Three Statehouse Plaza Little Rock, Arkansas Sponsored by the Arkansas Instilule for CLE and the Arkansas Bar Association MAXIMUM ARKANSAS CLE CREDITS: 6.0 HOURS

_ _

o Check enclosed

o Charge my VISA o Charge my Mastercard Credit Card Num ber

_

Expiration Date

Authorizing Signature RETURN REGISTRATtON FORM AND MAKE CHECK PAYABLE TO: Arkullsas Institute for Continuing Legal Education. 400 West MCirkhal11.

Suite 700. Little Rock. AR 72201. (501) 375-3957

Hattie and Huey An Arkansas Tour

by David Malone During the first eight scorching days of August in 1932, U.S. Senator Huey P. Long of Louisiana campaigned in Arkansas for the election of Hattie Caraway to the U.S. Senate.

Caraway easily defeated six well-known opponents in a race she was not expected to win and became the first woman to be elected to the U.s. Senate.

Hattie and Hiley is the story of two legendary politicians on their unforgettable campaign to retain the office to which Hattie Caraway had been appointed after the death of her husband, Senator Thad Caraway. It is a textbook of politics, a sweeping picture of the Great Depression, as if those perilous times had been compressed into a week and a day, and a fascinating look at two extremely different people caught briefly in a common purpose.

"David Malone's fine treatment of this historic week in Arkansas is the best yet done on the subject. He brings Hattie and Huey convincingly to life, as only another politician could. And when we finish reading the book, we feel that we have been in the company of not two veteran statesmen but three."

-Senator David Pryor 522.00 cloth, 511.95 paper

Available at fine bookstores or direct from

"' ARKANSAS The University of Arkansas Press

4

ARKA

SAS

•

201 Ozark

LAWYER

•

Fayetteville 72701

JANUARY

1990

•

575-3246 or 1-800-525-1823

T H E

A

R

VOLUME

2 4 •

400 W. Markham litlle Rock, AR 72201

A

N

s

A

s

I

NUMBER

Editor, Paige Beavers, Director of Communications

Publisher, Arkansas Bar Association

ARKANSAS BAR ASSOCIATION

K

I:'-l

THIS

ISSUE

6

The President's Message

By David M. (Mac) Glover

8

Young Lawyers' Update

By Ras<,lind M. Mouser

13

The Ceneral Practitioners' Primer "11 Ways to Contest a Will (Hopefully Not One You Prepared)"

By Richard F. Hatfield

19 20

Disciplinary Actions CIVIL PROCEDURE: ARCP Rule #54: GOTCHA!

Assistant Executive Director

23

In Memoriam

EXECUTIVE COUNCIL

24

The Executive Director's Report

By William A. Martin

25

Law, Literature & Laughter

By Victor A. Fleming

47

Volunteer Focus: VOCALS: Pro Bono Attorneys Do Make A Difference

OFFICERS David M. (Mad Clover President Charles B. Roscopf President-Elect Rodney E. Slater Sec.-Treasurer Fred S. Ursery Exec. Council Chair William A. Martin Executive Director

Judith Gray

Madison I' Aydelott III Mark Cambia no Daniel Carter

Carolyn J. Clegg John N. Fogleman Robert L. Jones III James H. McKenzie Paul D. McNeill Martha M. Miller R. Gary Nutter E. Lamar Pettus Carolyn B. Witherspoon

EX-OFFICIO David M. (Mac) Glover Charles B. Roscopf Philip E. Dixon

Rodney E. Slater Fred S. Ursery Rosalind Mouser The Arkansas Lawyer (USPS 546-(40) is published quarterly by the Arkansas Bar Association. Second class postage paid at Little Rock, Arkans.1s. POSTMASTER: send address changes to The Arkansas lawyer, 400 West Markham, Little Rock, Arkansas 72201. Subscription price to non-members of the Arkansas Bar Association $15.00 per year and to members $10.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to EDITOR, Arkansas Lawyer, 400 West Markham, little Rock, Arkansas 72201.

All inquiries regarding advertising should be sent to at the above address.

Arkansas Workers' Compensation 1989

By Zan Davis, Chair, Arkansas Workers' Compensation Law section

The Special Funds

By David Pake

WHAT? Stress Related Heart Attacks & Psychological Injury Claims

By J. C. Baker

Opportunities In 1952 he graduated from the University of Arkansas School of Law, passed our stale's bar examination

Today, they represent 30% of the legal profession. Over 80% of women

and

1970. They represent 41 % of the 1988 law school graduates. The median

joined

Association.

the

Arkansas

lawyers entered the profession since

Bar

The next year this

lawy~r's Ill~mbership

was refused, and his renewal check was returned to

ngc of fcm~lc ~ttorneys is 33 years.

him by our Association. (Later, on principle he declined an invitation to join). Surprising none of those who

from the

knew him, he went on to attain national acclaim as a civil rights

those of minorities. Naturally, the concerns of both groups must be addressed by the traditional white,

According to the ABA's report

women's concerns are as pressing as

lawyer and academe. And the rest is history. He was black. He was Wiley

male-dominated bar in each state.

The barriers women face consist of overt discriminatory behavior, subtle attitudes and institutional

Branton, Sr.

Two years earlier, in 1950, the first black lawyer had been admitted to

structures: differential, belittling and

membership in the American Bar

Association. (The ABA lifted its racial bar against black lawyers in 1943).

That WllS then, and this is /lOW. The now for us in Arkansas is to

follow the recent examples of the American Bar Association.

In 1986, thirty-six years after the first black became a member, the American Bar, Association created a

ational Commission on Opportunities for Minorities in the Profession.

This commission's assignment is "to

urge positive actions and suggest specific programs designed to integrate minority lawyers into the profession and judiciary."

The concerns of black lawyers in Arkansas parallel those expressed by

om mission on Women in

the Profession established in 1987,

By David M.(Mac) Glover

harassing treatment. in the courtroom

(a women attorney is called by her for black students; lack of equal opportunity in legal employment; and lack of integration into the organized bar at both the state and national level. l.S. Levy johnson, 1985-86 President of the South Carolina Bar, succinctly states, "The reality of today is that there is not enough minority involvement (in bar activities}."

By

the way, Mr. johnson is a black lawyer.

At our Annual Meeting in june, justice Dennis W. Archer of the Michigan Supreme Court, who is the Chair of the Commission on Opportunities for Minorities in

th~

first Ilnmc while her male adversary is

called "Mr."); unacceptable questions are asked in the recruiting process

(inquiries as to methods of birth control); negative presumptions toward women (women must prove their competence, while men must

prove their incompetence); "glass ceiling" limitations (unable to rise to "upper" levels of the profession); discrimination in firms in the types of case assignments offered women;

exclusion (freezing out) from firm discussions and professional socialization and camaraderie; the perception that women will not be successful rainmakers; the traditional response that women are themselves

minority lawyers throughout the country.

They include: underrepres-

concerns.

Women

been

somehow 10 blame for any of the

entation within the profession in

similarly impacted. In 1970, women

contrast to minority percentage of the population as a whole; the law school

represented just 3% of the lawyers in

admissions process and attrition rate

numbers have grown exceedingly fast.

above.

Certain issues are of importance to both women and men, black and white, in the profession. These issues

6

ARKANSAS

Profession, will speak to these lawyers

have

the United States. However, Iheir

LAWYER

JANUARY

1990

EXPERT TESTIMONY TRAFFIC ACCIDENT INVEST1GATIONS & RECONSTRUCTION USING COMPUTER GRAPHICS FOR EXHJBITS TRAFFIC ACCIDENT ANALYSIS for plaintiffs and defendants.

Scientific reconstruction of vector forces involved in an accident can be portrayed on computer graphics used as exhibits. Over 30 years engineering experience.

JOHN T. BATES, Civil Engineer 327 Bizzell Ave., Midwest City, OK 73110 Phone: (405) 732-5950 include: the availability of parental leave and child care, the possibility of part-time work or other flexible work options, and the taxing number of work hours demanded in private practice. These crucial issues of famjly and workplace, quality of life, served for an interesting panel discussion at OUf last midyear meeting.

How are we addressing all of the above COlleenlS and issues in Arkansas?

Last spring, Association President Philip E. Dixon appointed an eighteen person committee of twelve practicing lawyers and six judges appropriately entitled "Opportunities for Women and Minorities Committee." This committee was, and is, deSigned to address both the issues of minorities and of women. Significantly, Chief Justice Jack Holt has designated the judicial appointees. The Association's committee members include the President, Immediate Past President, President-Elect and Hillary Clinton, who is chair of the American Bar Association Commission on Women in the Profession. The Co-Chairs are Judge John R. Lineberger, Sandra Wilson Cherry and P.A. Hollingsworth.

This year we as an Association will reaffirm that discrimination is incompatible with professionalism, and will heighten our awareness of these and other problems. In addition, we will develop programs and practices that further a shared commitment to actualization of wornen's and minorities' full and equal participation in the profession.

Arkansas' efforts won't go unnoticed. We owe it to Wiley Branton, Sr.

u.s .....'olS.fVC<I

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YOUNG LAWYERS' SECTION REPORT As an official affiliate of the American Bar Association/Young Lawyers' Division ("ABA/YLD"), the Young Lawyers' Section of the Arkansas Bar Association ("the Section") receives substantial benefits from its continuing participation in national activities. These benefits include public service opportunities, membership support, political activism, and personal growth.

The Section, along with three affiliates in the state of Oklahoma, comprise District 20 of the ABA/YLD. This year, the District 20 Representative is Mike Crawford from Hot Springs.

Previous representatives include Martha Miller and Rick Ramsey. Additionally, the Chair of the Section has attended national events for many years. Arkansas is well represented on a national level.

Participation in the ABA/YLD includes opportunities made available to young lawyers through the Affiliate Outreach Program.

The Program showcases public service projects conducted by affiliates from all over the country. At the October Program meeting held in Vancouver, Canada, these projects included assistance to pro se litigants, legal assistance in providing affordable housing, legal assistance for non-profit organizations, and legal assistance for juveniles.

Additional projects included information regarding legal/medical clinics for the homeless, legal assistance for abused and neglected children, informing low income adults of their legal rights, consumer awareness projects, legal assistance for victims of domestic violence, assistance in keeping kids in school and decreasing illiteracy, law related public education, and legal services to authors and artists.

Mini-seminars provided information regarding the utilization of public servic announcements to an affiliate's advantage, easy projects to conduct on a shoestring budget, instructions on conducting national community law week, and suggestions on"getting Ollt the

8

ARKANSAS

Relationship with National Young Lawyers' Division Beneficial

By Rosalind M. Mouser vote" in your local community.

The Program conducts two meetings each year, and the meetings continue to focus on innovative and more efficient and economical ways to conduct public service programs in local communities. The Senior CitiLens Handbook currently being revised by the St.'Ction is an example of an idea initially received on a national level.

The Handbook has an immeasurable impact on the legal education of the senior citizens of thp ~ttltf" of Arkansas.

Additionally, the statewide Mock Trial Competition developed from a project presented at a Program meeting.

The Bridging the Gap Course currently sponsored jointly by the Section and the Arkansas Institute for Continuing Legal Education (AICLE) is another

LAWYER

JA

VARY

1990

example of an idea which was initiated at the national level. Almost every attorney in the state or Arkansas recogniLes the Bridging the Gap Ollrse as one of the most important continuing legal education courses that is provided to new bar admittees. This year, the 5<.'Ction and AICLE have completed the 1989 course with over 100 participants.

The Program provides monies to affiliates by way of 5ubgrant Proposals and Town Hall Grants. The propo~tlls ML' limited to a maximum or 52,S(Xl, ilnd thb year the Senior Citizens Handbook Committee of the Section has applied for a maximum grant from the Program.

Additionally, the Program provides a reimbursable I't'r dicl/I rilte fur those young la\,.vyers attending from an official affiliate.

National participiltion alS(1 includes the assistance received from the Membership Support Network. Acting in concert with the public sl'rvice arm of thl' national organization, the Network directs its attention to the needs and education of young lawyers.

At the recent meeting in Denver, Colorado, mini-seminars were held in time management, effective and efficient billing and collecting of fee!'>, effecti"e and healthy ways to manage the stress associated with dual working parents, determining anl,.1 handling conflicts of interest, obtaining clients, and milking partner. The network publbhes a quarterly newsletter which provide~ information which is of as!olbt.lnce at a personal as well as proft-'Ssionallevel.

As an official affiliate, the Section has four (4) delegates which may allend, debate, and vote on current is!'>ues \vhich arc eventually reported to the ABA and ib lobbying efforts in Washington, D.C. At the recent House of Delegale~ meL'ting in Honolulu, Hawaii, the calendar of debate' Rosnfi/1{t M. MOI/St'" is nil n:,socinft' llli/ll

the Inll' firlll of I~nlllsn.'l, Cox, Bridsforth.

Cilbt!r/, I-Inrrl'lsoll & S/nrlill~ ill Pillc BllIff, A rknllsns.

items included enactment of legislation redressing the increasing difficulty of civil rights and other public interest plaintiffs in finding legal counsel, and encouragement of a nationwide development of minimum quality standards for all lawyer referral services.

The delegate debated a resolution to encourage law firms to create associate committees, a resolution in support of legislation such as the uniform Poll Closing Act, and a resolution to oppose the enactment of a proposed Constitutional amendment which would allow Congress and the states to ban "desecration" of the American Flag. :.

The calendar of debate items also included opposition to federal legislation regarding guardianships and conservatorships, and support of federal oversight and enactment of state legislation requiring licensing and regulation of boarding care facilities for adults who need personal assistance, lodging and meals.

In addition, delegates debated a resolution opposing the inclusion of the Government Wide Ethics Act of 1989, a resolution supporting an amendment to the Internal Revenue Code and the Child Support Enforcement Act to incorporate the concept of family support. and to treat such support in the same manner as alimony and child support payments. The delegate hotly debated a resolution supporting a provision in the Restatement of Torts to acknowledge the dignitary tort of discrimination. The ABA/YLD is an active participant in the current events and issues of a legal nature.

One cannot discuss the benefits received from national participation without mentioning the professional and personal development that is gained.

Friendships developed with young lawyers from all over the country allow Arkansas Young Lawyers to create and develop contacts for future client referrals.

Additionally, the national meetings provide an informal setting for discussions bet\veen young lawyers from around the country in regard to common achieve-

ments, opportunities and problems. At every national meeting, social events are planned for all young lawyers in attendance. Thus, the benefits from national participation are public, professional, and personal.

As a young lawyer, the benefits received from participation in the Section on a state level and the ABA/YLD on a national level cannot be matched. I would encourage alI young lawyers to take advantage of not only the personal benefits, but also the benefits available for your own local community.

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ARKANSAS

LAWYER

Send check for $50.00 payable to: m & m Press

P.O. Box 338 Fayetteville, AR

JANUARY

1 990

72702

. ., ,

,tS thi generosityDftl1e ~lLnving lawyers, wh~ hiVe

The ArkansllS8M AfidciationgratefuUy ackn '~, ' ~ become Sustain'

.'. .'". ~.

bersofthe MsocWHon.

,

In June. 1989, the Housed DeI~t,.'Isfthe-"rkansas Ilw: S8J;ia600 erea ll""ans by wble/l members provi~ ..wilional 1II!I!!llQ;t '. to rhe "sooc:ration. A ~fegory Of,SllslaitUng Melllbers w at ~o perqIit""th thCl'!" .Ia~ w~ l>osy sclJ.,pu~ limit M partici):>a in the 'IlOrk Df lhe A5s0ciation and those who of!\heir..tinje 'liM their tl\~t. to n~y aid ill su.Pf'Or~g , lis ideals a' goals. Members of~ A.sfsJdalion who billie • law for l\yt>nty p1l:>re ha )x-en lnWed l& beet> ainlng MeJR\ler$,"d ~&I<ld on this page iLive resJ!ODded 10 Wlial'invitallon.' , ..:

aJE.gl!llelOlll'llI

,'"

~". .

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H. W,illiam,.Allen Littlt oq, .

'\

. • •Philip. Ii. tlix~ Chah"Sustaihing Members .

•

;._.

'

' ~ 'r. <;ill

.t· ,

. Rol\atU:~.

•

Anthony . Bartels

Nathan GOMon

lonesboro

Mom/loll

Ted Boswl:U'

Richard F. Hatfield

Bryant

um'eRock

William It Bowen Little Rock' ,

David.A.Hod~ Little Rock

Richard K. Busk

Clint

George M. Callahap

~nal6

~

~ittleK~

4.-

Mayes, Jt:; ~,

i

Denver L. Thomtun rrDorado

T. Jack, Jr.

EortSmith

George B. Collins

Philip~. KapI~n Littlt ~Bdc

Miallri, Florida

Bart G. Mullis

•

Sid C. Dabbs

JOlc:k L. LeSsenberrj f

Little Rock

Little Rock

Jay W. Didcey, Jr.

Robert O. Levi

Pine Bluff

North Little Rock

seyt •

j

WtIe Rock

Jim VanDover

Pili« Pluff

Mllrianna

Ike Murry

w. J.• BmWalker

LittleR~k

Walter R. Niblock

LittleRock '"

R.~mack

f~1te

Fay

Louis L. Ramsay

Joe D. podward

-

littleRock

Pinelfl~

Winslow Drummond

William A. MarlHt

Judith Rogers

Little Rock

North Little Rock

of

Jim Guy Tucker

Charles F. Mills .

Little Rock

Little Rock

ElDonulo Ttrarknan

"

~S.i:

enml. L 'Shukleford .,

. John F. Stroud, Jr.

ey

Robert L. Jones, III .

Philip E. Dixon

. S. H

~

ittle R,otl

>-

Char

,

OsroCobb

Chicago, nlmois

".

nunitt"",

1ft "'a

•

LittteR~k

Hot Springs '.

~

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,

Warren

~-

Uttli «ock '!!'.'

Hftle Rock·

Prescott, Arizona, •

yeht .

'MAgno

Robed Little Ilock

In

recognition of your more than 20 years of contributions to the legal profession, the Arkansas Bar Association extends to you this special invitation to become a Sustaining Member.

Because you have generously offered your time and talent over the years, the Association offers this membership as a supplemental means for you to continue to foster the high ideals of the profession.

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1 2

ARKANSAS

LAWYER

JANUARY

1990

11 Ways to Contest AWill (Hopefully Not One You Prepared)

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Practically every lawyer has either prepared or contested a Wilt or done both. Assuming you cue one of these lawyers, or if not, are just interested in the subject, the purpose of this article is to alert you to certain aspects of a Will contest.

This article also has the dun I purpose of serving as a checklist for the Wills yOIl prepare and have signed, since the Inst place you want to read about them is in the Arkansas Supreme Court or Court of Appeals reports.

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A. Grounds After much thought and study, I have concluded ",'''' ",I \ t III "II, ,Ih ' '/ "I" _/,\,\." I , "." ,I,'" '\ "II.' ,,\\"'" "II ," , that there are at least eleven grounds for contesting a It" "" \ ,\ I ,/,.. \ \ ,,1.< .11.""

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This situation occurs rarely, but is not to be ,\,'/ •• ' ,/,." _""' "I.> .,\\.\... ,1,'/ ,." )-. "':;"'-_1 \ \' ,,,,, ,.. " ! ~y........

•,,,\l'" , ,.." l\l''''~ II ", " ; 1' \. \. overlooked. Arkansas law prcsulIles an ArkCll1sas "I,"'" .,,,,, " .., 1""\" ~"I' Ii::;"'! ~'I resident is deceased after a five (5) yeClr absence from "I, ~,' II" ,,,c/"" ',...... :.~ " ",,\ ./ . ". . . / I the state and in the absence of proof that he is alive I.. ~ " .. \ ..~' ',<-:;;) during this time. ACA §16-40-105.

2. The Will is Not Offered for Probate Within the "-":>.1..

Statutory Time.

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3. The Court Lacks Jurisdiction to Consider the Will.

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Ricllard F. Hatfield is nil attomey hI private practice ill Little Rock. He is a probate specialist. Hatfield received 11is wldergraduate amt law degrees from tile University of Arkallsas at Fayetteville. He is a Past-Presidellt of tile Arkallsas Bar Associntioll.

a. The Probate Court has jurisdiction over the probate of Wills. ACA §28-1-104(o). b. However, if you have a Will contest, you should check the possibility of filing in Federal COllrt where your case has diversity and the statutory limits. Slit/Oil v.

Eliglisli, 246 U.s. 199, 62 LEd 664,38 SO 254 (917). c. A Declaratory Judgment action will probably /101 be available, since a Will contest is a special, exclusive proceeding in Arkansas. Colemal/ v. Colemall, 520 SW2d 239,257 Ark 404 (974).

4. The Venue is Improper.

Venue for probate of the Will of an Arkansas resident is the county where he resided at the time of his death.

For a non-resident, it can be in the county (a) where the greater part of his property, in value, is located in Arkansas, (b) where he died, or (c) in which any cause of action may be maintained by his personal representative.

If proceedings commenced in more than one county, action will be delayed until the determination of proper venue is made. If proceeding is in the wrong venue, it may be transferred to the correct venue before the Order of Final Distribution. ACA §2840-102.

5. The Will is Improperly Executed.

Arkansas law is, technically, very strict about execution of Wills, but the case law has expallded the statutory requirements with the gelleral llieory that the court determines whether the statute has been "substantially" complied with by the procedures used. a. For a holographic Will, the el/tire body al/d the Testator's sigllailire must be in the Testator's handwriting ACA §28-25-104. b. For otlier than a holographic Will, essentially 1100 witnesses are necessary_ If the Testator signs by a mark or another person writes his name, two other persons are

necessary to witness. The Testator must either sign or acknowledge his signature already made in the presence of at least 1100 witnesses, who must sign at the request and in the presence of the Testator. ACA §28-25-103. c. A Will executed outside Arkansas in the manner prescribed in ACA §§28-25-101 to 204 or in the manner required by law in the place of execution is valid in Arkansas. ACA §28-25-105. d. Case law has expanded the statutory wording to provide that strict adherence to statutory procedures is 1/01 required where there is no indication of fraud, deceit or

undue influence. Smitli v. Welcli, 597 SW2d 593, 268 Ark 510 (980). e. The pllrpose of the law relating to execution of Wills is to protect testamentary conveyances against fraud and

deception and not to impede them by technicalities. Here the Testator did not tell, but indicated to the witnesses that it was his Will when he signed, but the witnesses were in the same room as the Testator at the time. Hamel v.

Spril/gle, 372 SW2d 822, 237 Ark 356 (963). f. Witnesses do not have to be in each other's presence at the time of signing. Walpole v. Lewis, 492 SW2d 410, 254 1 4

ARKANSAS

LAWYER

Ark 89 (973). g. The Testator may acknowledge his signature by acts and gestures without expressing words. Greell v.

SlIIitli, 368 SW2d 280, 236 Ark 829 (962). h. A holographic Will does 110/ have to be witnessed to be valid. HlIfflllall v. Dawkills, 622 SW2d 159,273 Ark 520 (981). i. A Testator's signature on a holographic Will does IIOt have to be at the end, but must be made with the purpose of authenticating it for validity. SlIIith v.

MeDollald,481 SW2d 741, 252 Ark 931 (972). j. Witnesses must be over age 18 years and competent to be a witness in Arkansas, ACA § 28-25102. An "interested" witness must forfeit all of his intestate share to validate a Will. Attorneys are competent witnesses, even though they drafted the Will but were not named in the Will. (SlIlIival// v. SlIlIivalll, 364 SW2d 665, 236 Ark 95 (1963» or ·their firm represented the estate. (Rosellballm v. Call1l, 351 SW2d 857,234 Ark 290 (961». k. The Proof of Will must accompany the Will when presented for probate and requires testimony of two or more credible, disinterested witnesses to prove the handwriting of the Testator. ACA §28-40-117.

6. Another Will is Valid.

A Will presented for probate after the order of probate of another Will must be heard before the final Order of Distribution in the administration of the first Will admitted to probate. ACA §28-40-116(c). Such a second Will may be proposed in the SlIme proceeding.

7. The Will Admitted to Probate Has Been Partially or Totally Revoked. a. Revocation, governed by ACA §28-25-109, must be by: i. a later Will revoking the prior Will or in part expressly or by inconsistency, or ii. destruction with intent and purpose of revocation by Testator or another person in his presence and at his direction. b. After making a Will, if the Testator is divorced or the marriage annulled, all provisions for the former spouse or person are revoked. ACA §28-39-401. c. Absence of Will known to be in Testator's custody raises preslllllptioll of destruction with intent to revoke. Parler v. Sheffield, 208 SW2d 999, 212 Ark 1015 (948).

8. The Will is Invalid Because it Does Not Express "Testa.mentary Intent". a. A Will must express "testamentary intent" to be valid. Wilsoll v. Kemp, 644 SW2d 306, 7 Ark App 44 (982). The intent to make a Will must be clear. Faith v.

Sil/gleloll, 692 SW2d 239, 286 Ark 403 (985). b. Extrinsic evidence is only admissable if intent is IIOt clear. David Terrell, Faitli Prophel Millistries v. Estale of Val/111m, 681 SW2d 310, 284 Ark 108 (984).

9. The Testator Lacked Competency to Make a

JANUARY

1990

Will. . a. A person must be 18 years of age and of sound m1l1d to make a Will. ACA §28-25-JOl. An alien can makea Will.§18-11-101. b. The Testalor lIlust Hurlers/fwd and reln;Il, withoul promplillg, the following: i. The extent and condition of property to be disposed of, ii. To whom he is giving his property, and iii. His relationship to devisees and to those of his legal heirs whom he is excluding. Creml'.

HoI/mId, 657 SW2d 572,9 Ark App 233 (1983).

Hiler v. CI/de, 455 SW2d 891, 248 Ark 1065 (1970). c. The Testator must be competent at the lime of execl/lioll of the Will. Yarborol/gh v. Moses, 267 SW2d 8289, 223 Ark 489 (1959). Even though the Testator has only lUCid IIltervals, the court found competency at execution.

Hiler, supra, HI/ffmall, supra.

10. A Testator was subjected to fraud or undue influence in making the Will. a. Any such deception here must be shown to have affecled the Testator's interest and the distribution under the Will. III re McCollllell's Eslale, 257 SW2d 34,227 Ark 4 (1953). b. The influence necessary to be the basis for a successful Will contest is 1101 that which falls from natural affection, but coercion which deprives the Testator of his free wil/ in disposing of his property. TllOmpsolI v. Orr's Eslate 479 SW2d 229,252 Ark 377 (1972); I~ose v. 0111111,679 SW2d 180,284 Ark 42 (1984). c. The relaliollship of the Testator to the beneficiary named in a contested Will could raise the question of undlte i"fluence. Where the beneficiary had a confidential bl/silless relationship with the decedent, the burden of proof of undue influence did not shift. JOlles 1'. NBC of Memphis, 249 SW2d lOS, 220 Ark 665 (1957). The presumption of undue influence arose where testator's guardian was the beneficiary under the Will. Birch v.

Colemall 691 SW2d 875, 15 Ark App 215 (1985). d. Rebuttable presumption of undue influence arose where the beneficiary procured making of the Will. nder such circumstances, the proponent must show beyond a reasonable doubt that the testator had both mental capacity and freedom of will and action required to validate the Will. Shari 1'. SlepllellSOIl, 386 SW2d SOl, 238 Ark 1048 (1963), Smilh v. Welch 597 SW2d 593, 268 Ark 510 (1980). e. The burden of proof of testamentary capacity and the lack of undue influence rises to beyond a reasonable doubt for a beneficiary who drafts or causes to be drafted the Will in question. Creellwood v. WilSall, 588 W2d 701, 267 Ark 68 (1979).

11. The Testator breached an agreement to make a Will other than the one admitted to probate. a. The Testator agreed orally or in writing to make a Will different from the contested one or to revoke it. ACA

§28-24-10l. b. An antenuptial agreernent could give rise to such a cause of action, if the Will is different from its provisions. c. An oral agreement to make the Will is enforceable, but the proof rnust be elmr ami cOlJl l ;llci"S. AJlJlh' (I. Wt·('Il. 565 SW2d 436, 263 Ark 467 (978), Ill,",S(II1 P. Olls!I"k, 5~3 SW2d 9~2, 260 Ark 771 (1976). d. onsideration is required as with any contract.

Hall v. MillHlm. 284 SW2d 108,225 Ark 597 (955). e. A joint Will is valid if postponement of property is not postponed at the death of the survivor. George II. Sm;t1l.

227 SW2d 952, 216 Ark 896 (1950). f. The proper action for a specific performance of an agreement to leave property is against the devh,cc, not the estate, and in equity (not prob,lle). M{l/"gall P. Yell, 388 SlY 2d 88, 239 Ark 195 (1965).

B. "And More" .\. Lost Will.

Preserving the original Will is vilal. Deposit may be made with a probate clerk. ACA §28-25-108. In case of a lost Will, (where the original is not found after death), proof can be m"de in either Chancery (ACA §2840-3011 or Probate Court. COIlkl" v. Walk('/", 742 SW2d 892,294 Ark 222 (1988).

Where the original c(ln't be found .lltd a copy exists, the terms of the Will must be proved, with a copy being equivalent to one witness, but it must also bc l'stablishcd that the original was: a. proved to have becn in e\istence at the time of death of the Testator, or b. shown to have been fraudulentlv destrovcd in the lifetime of the testator. " In such an action, the proof of execution of the Will is the '"me as the case of lost deeds. AC A §28-~O-301.

2. Antemortem action In the case of questionable capacity, an antemortem probate proceeding is available which is similar to a declaratory judgment action. All legal heirs and beneficiaries are given notice. The Testator appears before the court, with proof of capacity and proper e'\ecution of the Will for the court's ruling. However, this doe, not prevent or affect a later Will by the Testator. ACA §§28-~O­ 201 to 203.

3. Anti-contest clause Anti-contest clause in a Will is valid, but it must meet the "good faith" test. Lytle 1'. Lebold, 357 SW2d 20,235 Ark 17 (1962). Also, the court will inquire into the definition of a "contest" to cause disinheritance out of the Will". Ll/t/C, slIprn and Jacksoll I'. Bradfll, 717 W2d, 206, 208, 290 Ark·117 (1986).

4. Standing to contest "Interested Person" mav contest" Will. ACA §28-~O113.

5. Time The time for contesting is:

a. When another Will exists - Must be filed before distrihution of the estrltp or within S

year~

of the date of

death. ACA §28-40-103(a) b. On any other grounds, essentially 3 months, but could be as short as the time for hearing on a petition for probate of the Will, depending upon notice. Review carefully ACA §28-10-113(b) 6. Trial Strategy 3. lime is essential. b. Generally, any Will which you want to propose should be the subject of petition for probate as soon as possible. In such a petition, notice should be given to prospective contestants. By this tactic, the time to contest is minimized. c. In contesting a Will, you need to careflllly analyze

personal representative's compliance with statutory nutice. ACA §28-40-108 (re<.luesL for notice), §28-40-110 (notice of hearing on petitions), and §28-40-111 (notice of appointment of personal representative). Failure to give proper notice may give you the right to file even though the time appears to have expired. d.Trial tactics The same principles apply. However, special attention should be given to the following: i. Preparation and full investigation of the facts, family background and documents evidellcillg intent. ii. Medical records, signature cards from

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financial institutions, testators writings at the tiJne of

controverted Will are usually vital. iii. Experts will generally be necessary to show: 1. Mental capacity - Doctor, Psychologist.

Nurse.

2. Authenticity of handwriting -Document Examiner. iv. Carefully analyze burden of proof and basis for shifting in accordance with above citations. v. Presumptions - The time of filing may be vital. If contest is filed before hearing a petition for a probated Will, proponent will have burden of proving all elements. After admission of Will to probate, contestant has burden of proof. vi. Evidence 1. Carefully review hearsay objections, especially as to present perception, mental condition, family records, documents, and family history. Ark Rules of Evidence, Rule 803(1 )(3). Check declarations available such as death pending, against interest and family history. A.R.E., Rule 804 2. Decedent's physician and attorney may be subject to the attorney / client or physician/patient privileges, which may be overcome. A.R.E., Rule 503(a).

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18

ARKANSAS

LAWYER

JANUARY

1990

From August through October of 1989, forty-four informal complaints

were made upon which no action was taken. Thirteen formal complaints were made upon which no action was taken. Five letters of caution were sent and two letters of reprimand were issued.

MICHAEL ALLISON Michael Allison of Morrilton was issued a letter of caution for violation of Rules 1.3 and 3.2 as a result of a Per

Curium. The Arkansas Court of Appeals granted a Motion for Rule on the Clerk after M. Allison admitted that the record was tendered late due to a mistake on his parI. Allison received the complaint from the Committee on July 6, 1989, and failed to file a response.

JAMES P, CLOVETTE James P. Clouette of Little Rock was issued a letter of caution for violation of Rules 1.3 and 3.2 as a result of a Per Curium. The Arkansas Court of Appeals granted a Motion for Rule on the Clerk to lodge a transcript. Clouetle told the Court thnt he was responsible for the transcript being tendered late. Clouette said he filed the Notice of Appeal, but due to confusion in his office for which he is solely responsible, the transcript was not lodged in time.

DAVID L. GIBBONS David l. Gibbons of Russellville was issued a letter of reprimand for violation of Rules 1.1, 1.3, 1.4 and 8.4 as a result of a complaint filed by J. E. Medlock. Medlock staled that he hired Gibbons in March 1987 to represent him in a matter involving an eslate. Medlock said he vilas served with Intcrrogtltories and Request for Production of Documents in early October 1987, and sent these to Gibbons.

He said he spoke to Gibbons several times and was told not to \路vorry, that everything was taken care of. In January 1988, a hearing was held that Medlock was not aware of and the judge dismissed the

claim. Medlock said that the next day Gibbons had him write the judge a letter stating that he was not properly represented and asking for another hearing. He said he later learned that Mr. Gibbons had not filed responses to the Interrogatories and Requests for Production of Documents.

Gibbons said his representcllion of Mr. Medlock did not meet his own standards or those of the profession. He said he has determined the reasons for his substandard and assured the Court this would not happen again.

DON G, GILLASPIE Don G. Gillaspie of EI Dorado was issued a letter of reprimand for violation of Rule 1.3 as a result of a complaint filed

by Mary Conley. Conley said she hired Gillaspie to represent her in a divorce in April 1988. She said he told her he had filed for the divorce one month later and that they would be going to court in July, 1988. As lhe date appro.lched, Conley said Gillaspie told her there were delays.

In December, 1988, she said she learned that his telephone had been disconnected and was ad vised by the prosecuting attorney Gillaspie had left town. Conley said she later found him at his office and confronted hirn about the case. She said he told he that it was her husband's faull and he gave her a partial refund. Conley said that after hiring another attorney, she learned that Gillaspie had done nothing except to send a waiver to her husband.

She said that the divorce had never been filed.

Gillaspie denied that he told Conley he had filed the complaint. He said the prosecuting attorney also did not inform her that he had left town. Gill<lspie said on two occ<lsions he prepared a complaint and sent them to Conley but never received a reply. He also said th<lt he has been suffering from depression and is still having problcms in remcmbering things and forcing himself to do things that need to be done. Gillaspie said his delay in responding to the Committee's complaint is evidence of this. He assured lhe committee that his is closing dO\.... n his practice and will not resume unsupervised reprcsent<ltion of clients. He admitted that he failed to act with re<lsonable diligence in representing Conley, but he

denied dishonesty, fraud, deceit ur m isreprescn t<l lion.

DONALD E, HAMILTON Donald E. Hamilton of Forft~~t City was issued a letter of caution for violation of Rules 1.1, 1.3,1.4 and 8.4 ilS a re~ult Of.1 complaint filed by I ellie White PrHcllard.

According 10 Pritchard, ~he hifl'd Hamilton in June 1988 to reprl'~l'nl her in a divorce. She st'lid she tillked to him in early Deccmbl'rI988, tllld he ilcted likc he did not know whtlt WtlS going on.

Pritchc1rd said she had to tell H.1milton about the case. She stlid ~he cililcd Hamilton but was unable to reclCh him.

Pritchard said his secretary told her thilt he was not in and thilt she didn't know when or if he was coming in.

Hamilton stated that he WilS hifL'd to represent Pritchard and that when she came to his (lffice in December he did not remember thc case until he luoked up the file. He said he 'Nas not aware I'ritchard had made calls that had not been returned, that he had tried to reach Pritchard at times and could no!. He further stated Ihelt he held ildvi~ed Pritchard Ihat he would set anothcr hearing on the maller.

ROBERT E, IRWIN Robert E. Irwin of Russellvillc wa~ issued a letter uf caution for violation of Rules 1.3 and 8.4 as a result of c1 complilint filed by Gary Endsley. Endsley ~<lted that he hired Irwin to sue over a defectivc lawn mower his company had purcha~cd.

He said Irwin told him over .tn ele\'cn munth period that he had misplaced the file, but alw.1ys assured him th.1t the C~)llrl date would be set soon. End~kv s"id he fincllly called the court clerk clll\..i ICclfned that Irwin had never filed the compl.1int.

He said h(> confronted Irwin, whll returned the SIOO and gave him hb file.

Endsley silid when he obtained the filL', he found a copy of the complaint which \\'a~ never filed.

Irwin outlined each contilct Ill' hilL! with Endsley. He acknowledged th<1I he did lie <lbout filing the compl<lint. lie ~,lid (continued on pc1ge 22)

ARCP R u 1 e Number 54(B):

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Chair, Civil Procedure Committee Lawyers love to talk Clbout "pitfctlls for the unwary."

Here is a notably effective little gem - ARCP Rule 54 (b).

Since the Arkansas Rules of Civil Procedure were adopted in 1979, lawyers in 32 cases have learned about it the hard way, by surnmary dismissal of their appeals.

This rule provides \vhen there arc llluitiple claims or multiple parties, an order dismissing less than all claims or

parties is not final, unless the trial court expressly determines there is "no just reason for delay" and makes express direction for the entry of final judgment.

Absent

this, the action is not terminated as to any claims or parties

and the order may be modified before entry of final judgment. The rule makes no mention of appeal, but it has a

profound effect on appealability.

The language l1'lfly be obscure, but the result is not. If the order docs not contain the required finding and direction for entry, there is no final order and the trial court's action cannot be tested on appeal until the balance of the

case has been litigated and final judgment entered. The appeal will be dismissed. Clark v. Fitzgerald, 270 Ark. 240, 605 SW2d 1 (1980) (the first case); Bolts v. Deltic, 298 Ark. 464, 768 SW2d 532 (1989) (the latest case). The defect is jurisdictional and the appellate court will raise it even if the parties do not. Ark/lOla Saud nnd Gravel COlllpnllY, Ille. P. HII/chiIlSOI/,

289 Ark. 313, 711 SW2d 474 (1986). This has

c1airn disrnissed was "separable." Budd

l'

Dni'i::" 289 Ark. 373,

happened several times after the parties have gone to the

711 SW2d 478 (1986). The court has even imposL'C; the rule

expense and effort of fully briefing the case.

where the remaining party had been dismissed by settlement. UII;'etf Parer! Sen/ice, lI1C. P. Pr;d~('" 5tYl1r;'I/, lue..

ot even

agreement of the parties, all of whom may want immediate resolution, can save the situation. Mlleller v. Killalll, 295 Ark. 270,748 SW2d 141 (1988); Hall v LIII/sfard, 292 Ark 655, 732

SW2d 141 (1987). The argument that a motion for new trial had been filed and that appeal lies from denial of such a motion has failed. Rllsil/ v. Midwest EI/alllelers, II/C., 21 Ark. App. 226, 731 SW2d 226 (1987), has the argument that the 2 0

ARKANSAS

LAWYER

JA

292 Ark. 11, 727 SW2d 381 (1987). Suffice it 'to say, if t\;e trial court has not n'lade the determination and put the magic

language in the order, it is not appealable.

The purpose of the rule is to prevent piC'CCI11Cill appl.'ab

while portions of the litigation remain unresolved, but it does recognize there arc situCltions where

VARY

1990

[l

particul"r c!<lim may

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the trial court to grant an immediate appeal, while discretionary, City of MariO/ilia v. Arkallsas MllIlicipnl Leaglle, 289 Ark. 473, 712 SW2d 305 (1986), is to be exercised infrequently, and only in harsh cases. Pitts v. Sipes, 293 Ark. 340,737 SW2d 647 (1987). In making the determination that there is no just cause for delay, the trial court must decide whether there is danger of hardship or injustice which an immediate appeal would alleviate. Howard v. Wood Mallllfaclllrillg COlllpallY, 291 Ark. I, 722 SW2d 265 (1987) .

The court has not had the chance to further explain this general test. Obviously, each case must be decided on its own merits.

.

/.

. '. '-. . .-,'

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Federal Rule 54 (b) is identical to the state rule, and a considerable body of federal law has developed, offering insight on this question. Some Eighth Circuit cases dealing with propriety of certification are Re Flighl Trollsp. Corp.

Sewr., 825 F2d 1249 (8th Cir 1987); Hardie v. Coller & Co., 819 F2d 181 (8th Cir 1987); and Bllrlillgloll N.R. Co. v. Bair, 754 F2d 799 (8th Cir 1985). See also, Kirkwood v. Taylor, 590 F Supp. 1375 (DC Minn 1985); Benllall v. Ullited Slates, 572 F Supp. 1486 (ND Ga 1983); and Annat. 32 A.L.R. Fed. 772 (1977).

It is not enough just to have the magic language in the order. Our court has given notice that the record must

contain a factual basis for finding danger of hardship or injustice which the immediate appeal would abate. ArkllOla Salld & Gravel Compally v. HlitchillSOIl, 29'1 Ark. 570, 726 SW2d 674 (1987). Federal courts make the same requirement.

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need to be finallv resolved before the entire case is concluded. Sec the'reporter's notes to the rule; 3- W LIIIIII",r COlllpallY v. I/ollsillS Allihorily For Ihe Cily of Balesville. 287 Ark. 70, 696 SW2d 725 (1985); and Tlliio 1'. Arkallsas Bille Cross all/I BIII( Shield, Illc. 283 Ark. 278,675 SW2d 369 (198-l) for further explanation.

When is there a chance of getting an order complying with Rule 54 so it CiHl be appealed before the remaining issues arc litigated and final judgrnent is entered in the action? The Arkansas Supreme Court has said the power of

Counsel for an appellee who was sliccessful in obtaining dismissal should file a motion to dismiss the appeal for failure to comply with Rule 54 (b) at the first opportunity.

This can be done by filing a partial transcript with the motion. Counsel who delays in doing this until the appellant has briefed the case risks sanctions. Blillock v.

Shelter Mlltllal IIISlirallce COlllpallY, 21 Ark. App. 160, 729 SW2d 436 (1987).

About the only saving grace in this situation for the party whose appeal is dismissed is that the dismissal is without prejudice. Cily of Mariall/IO v. Arkallsas MllIlicipal Leaglle, 289 Ark. 473, 712 SW2d 305 (1986). An attempt can be made to get the required determination and direction and proceed with the appeal. Also, there is no duty to ask for the determination and direction, and the right to appeal from the order when the entire case is litigated and final judgment is entered is not lost. McCrory n. /0111/5011, 296 Ark. 231, 755 SW2d 566 (1988).

Counsel involved in Illulti-party or multi-c1airn litigation in state or federal court must consider the effects of Rule 54 (b) any time there is a dismissal of less than all

claims or parties. Whether the order contains the dcterminotion and direction for final judgn'lent can profoundly affect the course of the litigation. It is hoped this article will serve as a rcminder (lnd a steHting point for research.

Disciplinary Actions (continued from page 19) lhal he apologized to Hendsely and returned his 5100 fee. He said that he was sorry that no one in his office had

discovered that the complaint had not been filed.

WOODSON D. WALKER Woodson D. Walker of Little Rock was issued a letter of caution for violation of Rule 1.3 as a result of a complaint filed by

Vincent Roseburrow. Roseburrow stated that he hired Walker to represent him in a lawsuit against Kroger. He said he paid Walker 53,880 in fees and legal expenses.

Roseburrow said he has had constant problems getting Walker to respond to him. He said the case was settled in September, 1988, but he has been unable to talk to Walker to find olll anything about the settlement.

Roseburrow said he consulted with

another attorney who has also written to Walker several times without any response. He also said he \vrote to Judge Reasoner and the judge sent a letter to Walker expressing concern that the settlement in the case had not been settled

for several months. Walker indicated in March 1989 that he was willing to negotiate a settlement for the payment of what was due to Roseburrow.

Walker said he agreed to represent Roseburrow in February 1986. He received correspondence from him and that it is his normal practice to either speak to the client directly in response to an inquiry or to designate that to a junior association or paralegal. Walker said he can neither admit nor deny his response to Roseburrow's letters. He said the case was settled and he told Roscburrow that he had a number of cases scheduled for trial and that the final paperwork would not be done immediately. Walker said he later received a letter from attorney Leon Nicholson on behalf on Roseburrow. He said he talked to Nicholson several times and it was agreed thClt he would proceed to conclude the settlement agreement. Walker said he sent a letter to Nicholson in March 1989. He further stated that he feels that Roseburrow is attempting to modify the terms of his t:mpluYllumt dgreement with him. Walker said he wished he had mailed the responsive letter to Roseburrow more promptly. He said he regrets Ihat other professional demands have not allowed him to conclude the settlement immed路 iately, and he denied that he has received any funds.

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LAWYERS MART

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Law Helpline, P. O. Box 16254, Seattle, WA 98116

SAS

LAWYER

JANUARY

1990

JIMMY D. JOYCE jimmy D. joyce, 47, of Pine Bluff died in October, 1989. joyce was the jefferson County deputy prosecuting attorney, juvenile court referee and

juvenile referee legal adviser. He was a member of the Arkansas Bar Association, the Arkansas Trial Lawyers Association, the National

Council of juvenile Court judges, the Arkansas juvenile Advisory Group and Vice President of the jefferson County Child Abuse Prevention Council. He was listed as one of the Outstanding Men of America.

Survivors are his wife, Bobbie jean Tiner joyce, his father, and a sister.

Memoria Is may be made to jefferson County Suspected Child Abuse and Neglect.

JAMES O. POWELL, JR. james O. Powell, Jr., 36, of Little Rock died in October, 1989. He was

Watch for your

1990 Membership Directory in the April issue of

The Arkansas Lalvyer

the senior lawyer of the staff of State Supreme Court Justice John Purtle.

Powell was a member of the Arkan-

CHARLES F. ROSENTHAL

sas Bar Association, the American Bar

Association and was a legislative liaison for the Small Business Administration.

Charles F. Rosenthal, 74, of North Little Rock died in August, 1989. He

He was a former

was a member of the Bar Associations

member of County Democratic

of Arkansas, Illinois and California, and served as an Army lieutenant during World War II. Survivors are his wife, Gloria Cheatam-Rosenthal, a stepson, a stepdaughter and four grandchildren.

Committee and was an aide to the

late Lieutenant Governor Joe Purcell.

Survivors include his parents and

a brother. Memorials may be made to the Second Baptist Church.

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Because It's Fun! to my audience. Still, the need to organize my knowledge, provide

"Do you wish you had not agreed to be part of Fall Legal?" "

citations and research points on which I was unsure made me a better lawyer. From time to time it h<1s been updated for other presentations

0."

"Why do you do all that work?"

"BECAUSE ITS FUN'" I was asked these questions while I passed around the handout material accompanying my oral presentation on the Federal Tort Claims Act for last October's Fall Legal Institute.

And why was it fun when it took

and during this latest update I discovered a major 1988 United Stales Supreme Court decision and an act

of Congress, of which I had been unaware, on immunity from individual liability of service members

so much time? Many reasons.

Being recognized as having

knowledge which is worth sharing with other lawyers strokes the ego, and probably none of us would have had the drive to get through law school without big egos. Knowing I would be listed in the AICLE brochures and program was another

appeal to my vanity.

In my job, where being a lawyer certainly helps, if it is not absolutely essential, most of my work is more of an administrative rather than a legal

nature. Updating my paper, which was first done in 1976, forced me back into the law books in depth and reaffirmed my ability to do legal research. The actual writing made me feel more like I was doing pure

legal work than I had in a long time and that felt good.

Hoping for some compliments on my work was another strong motivator. I knew that only through thorough preparation would I have a chance of doing a good enough job to earn approval from even a small

sampling of the audience.

Of course the traditional reason for my hard work was 'service to the

profession.'

But even if there were

and federal employees, a subject of great interest to me. I found this to be a personal bonus in my work.

Almost any )cnvyer who has

By William A. Martin

practiced for a length of time has acquired some experience and know-

ledge that is worth sharing with not the obligation to help improve the administration of justice, I believe 1 would be happy to help. The Rotary molto of "Service above self"

other attorneys. Program planners aTe constantly looking for speakers,

but may have no idea of how

yOlI

in various forms has been taught to

can contribute unless yOli volunteer and explain why there is a need for a

me all my life, and [ have found there is great psychiC reward in helping and sharing. This was an oppor-

area you can talk about.

Your Arkansas Institute for

tunity to share information I had acquired during my years in the Air

program which includes the legal

Continuing Legal Education, your

Act.

Arkansas Bar Association sections and committees, YOUT local bar association and any Arkansas specialty bar associations you might be active with have a great need for lawyers to contribute ideas, papers and programs to provide a variety of opportunities. When you are asked

My first talk and paper on the FTCA was presented to the Military Law Section of the Kansas Bar

have special knowledge, contact a prograrn planner and volunteer. You

Force, especially my tour as Chief of Claims and Tort Litigation, and, in

doing so, perhaps help some attorney zero in on the real issues in a tort claim and avoid the administrative bear traps in the Feueral Tort Claims

Association.

At that point I was

working with the subject daily and knew most of what I wanted to relate

to be a presenter, say "yes." If you

will probably have as much fun as I did before, during and since the Fall Legal Institute.

LAW, LITERATURE & LAUGHTER

Plight of Perverse Optometrist Inspires Writing Lesson

By Victor A. Fleming "Fisher cornplained about being

consumed the first sentence of the

hounded by reporters, before all sides stopped commenting on the advice of lawyers." The foregoing

article: "The Iowa Board of Optometry Examiners, under fire for

was the last sentence in a Associated

Press story in one of the statewide dailies. I was using the speedreading tactic of beginning at the end.

I paused, musing over the syntax - "Excuse me, would you care to comment on the advice of your attorney?" "No, her advice is not worthy of comment."

clearing a practitioner who had women patients strip to the waist for

eye exams, ordered him to stop the practice and put him on three years probation."

Do what?

Unlike Paul Harvey, I wiII provide the "rest of the story" in the middle.

(It seems in keeping with the context, don't you think?)

One of my partners had given me

(Syntax is the branch of grammar that is concerned with the

the paper opened to this item. "Did you see this?" he asked. "I thought

arrangement of words. Grammar is

you might use it for your column."

the branch of linguistics that deals with inflections, phonetics, and syntax.

A separate branch of linguistics, orthography, deals with

I had not seen it, so I began hurriedly to read. It was immediately obvious why he thought I would be interested. I had been planning to write something about writing itself.

how words are written and is often

considered a part of grammar.)

I went on, or rather back, to the next to last sentence; "The medical board had threatened to sue, saying Fisher strayed into the practice of

This article contained not only humorously ambiguous syntax and unusual imagery for a legal matter,

but also other problems. Right at the

medicine" would have been a more

beginning was a redundancy: "women patients."

(Redundant means using rnore words than necessary. In the context, it is not necessary to use both women and patients. In an article about

effective figure of speech.

(Figure of speech means any

action taken by a licensing board, would a reader think the optometrist

medicine.... " Having heard of

stray dogs, stray cats, and poor little sheep who have gone astray, I thought "strayed into the field of

redundancy. "Fisher said he did so ttl check for curvature of the spine

associated with some eye disorders.

The optometric examiners "had

previously voted against disciplining Fisher," the article said, but "reconsidered under public pressure.

In its October ruling the board said Fisher 'was honestly trying to provide the best care'." As if it were possible, I thought, that the board would conclude the man was dishonestly

trying to provide the best care."

I skimmed the balance of the article. The initial decision of the

optometry board got some folks riled.

The state attorney general decided tu put the squeeze on this boob and had the case reopened. Also insisting on

furthering the probe was the "buard that governs the medical profession," which had obviously kept itself abreast of the mailer.

I concluded that my partner had indeed given me something I could use in LLL. I could make some real points about grammar, syntax, etc., using the article to illustrate my remarks. That there waS a legal angle

made it the more appropriate.

My partner interrupted my train of thought: "I wasn't sure you could use it because it's rather sexist."

I

form of abnormal expression used for

was having non-patient women strip

quickly reread the piece.

I guess he was referring to the

the sake of emphasis. "Strayed into the practice" barely qualifies, but "strayed into the field" hints of metaphor. A metaphor is a word or phrase literaBy denoting one thing used to denote another so as to suggest a likeness. If introduced by

to the waist? Of course not.)

So in the first sentence, I noted, the word "patients" could be deleted

reporter's failure to mention whether Fisher was concerned about men patients being afflicted \vith curvature

without affecting the meaning.

of the spine.

patients" in the previous sentence is not redundant because both words are needed in context to make the

the word "as: or "like," however,

Beginning to mark the newspaper with my red pen, I leaped to the middle of the article: "Fisher was hauled before the optometry board on

then what otherwise would be a

ethics charges after some women

m taphor is a simile.)

In a jump-shift maneuver that sometimes aids reading retention, I

patients complained he had them partially disrobe." "Women patients" again, I noted.

Repetitious

(The phrase "men

point.)

I decided to use the article, and voila!

Š 1989, Victor A. Fleming

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Review of workers' compensation cases decided by the Arkansas Court of Appeals and Supreme Court in 1989.

By Zan Davis APPEALABLE ORDERS In Hope Brick Works {t. We/ell l , Gt'1W Marie Farms 71. JOIlL~2, BaldoT Electric Co. 1'.10IIt's3, and Arknll5as Highwny nlld Trallsporlnlioll Dept. 1'. Gideoll 4, the Arkansas Court of Appeals dismissed appeals from the Commission because the Order from which the appeal was taken was a remand to the Administrative Law Judge. In these four cases, the Court made it perfectly clear that no Full Commission Opinion remanding the case to the Administrative Law Judge will be considered appealable.

SHIPPERS DEFENSE The Court of Appeals published three opinions involving tile Shippers defense. This defense was established by Shippers Trallsporl of Georgin P. Stepp", and allows denial of all workers' compensation benefits if: (1) the employee knowingly and willfully makes a false representation as to his physical condition on an employment application; (2) the employer relies upon the false representation, and this reliance is a substantial factor in the hiring; and (3) there is a causal connection between the false representation and the injury.

In two cases decided on the same day by the Court of Appeals, the Court addressed the first element of the Shippers defense. In SlilllllnIl1'. Mlllli-Slntes Elec6, the employment application asked: "Do you have any physical limitations that preclude you from perform in; any work for which you are being considered?". In Klligllt v. JlllillstriaJ Eleclric Co. , the employment application asked: "Do you have any physical condition which may limit your ability to perform the job applied for?" In both cases, the employee had answered the question, u 0." Both claimants had suffered prior injuries to their back similar to the ones which were the subject of their present claims, and had been given prior permanent physical impairment ratings for those injuries. The Commission denied compensation in both cases. The Court of Appeals reversed, holding that a question on an employment application simply asking an employee'S opinion as to whether he is capable of performing the job for which he has applied does not necessarily amount to a knowing and willful misrepresentation as to physical condition especially if the employee returns to work after the prior injury demonstrating ability to perform the jobs applied for.

In Mnc v. Tysoll Foods, IIIC 8 , the Court of Appeals affirmed the Commission's denial of benefits based on the SI/ippers defense. In this case, there was really no question that the first two elements of the defense were present while there was conflicting medical evidence as to the third element involving a causal connection between the prior condition misrepresented on the application and the present injury. One doctor was of the opinion that the relationship existed, and the other doctor was somewhat equivocal.

Under these circumstances, the Commission adopted the opinion of the physician who was of the opinion that the causal relationship existed, and the Court of Appeals affirmed, pointing out that it was the Commission's duty to weigh the medical evidence and, when it is conflicting, the resolution of this conflict is a question of fact for the Cornmission. Viewing the evidence and inferences deductible therefrom in the light most favorable to the finding of the Commission, the Court found substantial evidence to support its findings.

ACT 10 OF 1986 - SUBSTA T1VE OR PROCEDURAL? In 1986, the Workers' Compensation Law underwent major legislative revision 9 Inevitably, the Court would have to decide whether each change was substantive Zall Davis is all attortley ill private practice ill Little l~ock. His practice couce"tratl's i1/ Workers' Compensatioll, Persollal litjury ami Social Security. He received 11is //l1dergraduale degree from Hendrix College and Itis J. D. trom the University of Ark(JIlsas at Fayetteville. He is ti,e Chair of the Workers' Compel/safiol/ Law Sec/iou of fhe Arknllsas Bar Association

(applying only to cases involving injuries after the effective date of the legislation) or procedural (applying retroactively to all cases being decided after the legislation went into effect).

In Wade v. Mr. C. Cavellallghs lO , the Supreme Court of Arkansas considered the Section of Act 10 of 1986 which amended Ark. Code Ann. ยง11-9-704(c) (4) (1987) 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 benefits of the doubt to any party. The Court said that this change was procedural and was to be applied retroactively to any case heard by the Administrative Law Judges or the Commission after the effective date of the Act, regardless of the date of the claimant's injury.

In Arkallsas Siale Police v. Welch ll , and Driscoll v. Oklahoma Gas alld Electric Co.l2, the Court of Appeals considered the Section of Act 10 of 1986 which amended Ark. Code Ann, ยง11-9-522 (1987) creating new limitations on an employee's entitlement to wage loss disability. The Arkallsas Slate Police case concerned the new provision which would eliminate benefits for wage loss disability when an employee returns to work at wages equal to or greater than his average weekly wage at the time of the accident. Prior law allowed an award of benefits under these circumstances if the employee was found to have been suffering from loss of "earning capacity." This could be shown by evidence demonstrating that the worker had lost the ability to perform his past work, certain aspects of his past work, or was precluded from other types of work which he was previously capable of perfomling, even though he had returned to work with no actual loss of earnings. The Court of Appeals affirmed an award of five percent (5%) wage loss disability based on evidence that the claimant, even though she had returned to her preinjury job a~

it

slale trooper wilh no actual 1055 of earnings, was unable Lo perform many

of the duties of her job, and was precluded from returning to other work she had done in the past as an assembly line worker and waitress, While the new provisions of Act 10 of 1986 found at Ark. Code Ann. ยง11-9-522(b) would preclude any award for wage loss disability under these facts, the ourt decided the case under prior Jaw concluding that the legislative change was substantive and applied only to injuries occurring after the effective date. In the Driscoll case, the Court considered the limitation on wage loss disability applying to claimants who suffer loss of earnings because they left work voluntarily and without good cause connected with the work. The Commission had denied the claimant wage loss disability benefits based on this statute, and the Court remanded saying that the limitation contained in ยง11-9-522(c) (2) was substantive and not in effect at the time of the claimant's injury.

ASSAULTS The occurring

ourt of Appeals decided two cases dealing with the compensability of injuries it'" thp result of ass;lults, Sail Anlouio Shoes v. Beaty 13, and Pigg u. Alito 51lack 14 .

A three-part analysis for these cases was outlined.

If the assault was the result of a

purely personal dispute, then the resulting injury is not compensable. If the assault arises out of a dispute distinctly associated with the employment, then the injury is compensable. If the source of the assault is unexplainable, the result of a "neutral risk," and cannot be attributed to personal or work-related factors, then the "positional risk" doctrine can be applied. The positional risk doctrine creates a presumption of compensability when it can be shown that the assault and resulting injury would not have occurred but for the fact that the conditions and obligations of the employment placed the claimant in a position to be injured.

STATUTE OF LIMITATIONS The Statute of Limitations in workers' compensation injury cases requires the filing of a claim within two years from date of injury or one year from the last payment of

compensation, whichever is greater. 1S

In Myles v. Paragollld School Disl. 16, the claimant was injured on August 24, 1983. On September 6, 1984, the respondent mistakenly failed to make a permanent partial disability payment. Permanent partial disability payments should have been stopped on September 26,1984. The last medical benefits were paid to the claimant on July 29,1985.

On July 10, '1986, the respondents paid the permanent partial disability payment which had been overlooked. On July 7,1987, the claimant filed a claim for additional benefits.

The Court found the claim filing of July 7, 1987 to have tolled the statute of limitations as being filed within one year from the last payment of compensation, even though the payment made on July 10, 1986 was for a benefit due on September 6,1984.

30

ARKANSAS

LAWYER

J

A

UARY

1990

In MeDOIwid Equipmenl Co. u. Tumer 1?, the Court of Appeals considered the "latent injury" exception to the statute of limitations. This exception provides that the statute of limitations cannot begin to run on it workers' compensation claim until the claimant knows the "substantial character" of his injury. The claimant suffered an injury to his back on December 3,1984. Respondent paid benefits through Apri13, 1985. On May 19, 1987, the claimant had additional problems with his back after a slip and fall incident on the job, Illore than one year after the last payment of compensation and morc than two years from date of injury. The Commission found that the stanJte of limitations had not run on the claim using the "latent injury" exception and saying that "lilt was not until th? completion of diagnostic testing... in 1987 that the full extent and nature of lappellee'sl December 3, 1984 injuries was known". The Court reversed, finding the injury not latent because the claimant knew he had injured his back in 1984, was informed of the nature of his injury by his doctor, and continued to have back pain since the injury. The Court said that the "substantial character" of his injury had not changed. Only the severity of the pain had changed. The case was remanded for a determination as to whether the claimant had sustained an aggravation or recurrence of the initial injury.

FINDINGS OF FACT BY THE COMMISSIO In Wade v. Mr. C. CaVl!llnllglts l8 , the Commission had relied on the observations of the Administrative Law Judge at the hearing. Claimant's attorney argued that, in so doing, the Commission had relied on facts outside the record. The Supreme Court of Arka"';,1s rejected this argument, holding that the Commission \vas entitled to rely un the Administrative Law Judge's observations and comments made about the claimant's demeanor, conduct, ap~earance or reaction at the hearing.

In johnson v. Hllx 9, the ourt of Appeals said that the Commission is not only authorized but required to make its own findings of fact unless it adopts as its own those of the Administrative Law Judge. The Commission is not bound by the credibility findings of the Administrative Law Judge and, on appeal, the Court \vill give no weight to the findings of the Administrative Law Judge.

In BOllller v. McKee Bnkil1g Co. 20, a hernia case, the COlllmission ml1de inconsistent findings of fact. The Court remanded for the Commission to make new findings of fact and conclusions that are internally consistent.

ESTOPPEL In INA/CleNA IllS. Co. 1'. Sil/lpson 21 , the claimant was a sole proprictur who contracted with the respondent for workers' compensation insurance. Every year, he paid premiums and was sent a certificate of insurance which stated: This policy for Workers' Compensation protects all rnembers of the orgl1niLation, both employer, sole proprietor, a partner or bona-fide officer of the corporation and all employees. There is no exclusion, including contract labor.

Ark. Code Ann. ยง11-9-102(2) (1987) requires that a form be filed with the Commission before a sale proprietor will be considered an employee covered under a policy of workers' compensation insurance. The claimant did not file the required form.

The respondent denied coverage based on the claimant's failure to file the forms, but the Commission and the Court found the respondent estopped to deny coverage bast.'d on the language in the certificate of insurance indicating that the claimant was in~ured a~ a sole proprietor.

In Arkallsas State Polin' 1'. Welr/1 22 , the claimant made an authoriLed change of physician to a chiropractor, but the respondent paid for the initial e'\pclbcS of his treatment, later controverting further payment based on the fact that the claimant did not follow proper procedures in changing physicians. The Commission and thc Court found the respondent estopped to assert the unauthorized change of physician dden:,e ilftL'r having paid for treatmcnt after the change occurred.

CO STITUTIONAL ISSUES The Court of Appeals decided two (2) cases concerning the adjudication of constitution issues in workers' con1pcnsation cascs. In CO/Illty Markl'f P. TlIonlI0l/ 21 , the respondent challenged the constitutionality of Ark. Code Ann. ยง11-9-514 which gives preference to chiropractic physicitlnS over medical doctors in changc of physicit1n C.:lses by making it easier for claimants to change physicians to chiropr<lctors. The ourt refused to address the respondent's allegations of a violation of the equi'll protection clause, holding that the respondent, a retail store l1nd an insurance COmpilnY, did not

have standing to raise the issue. The Court said that only physicians other than chiropractors had standing to assert these constitutional rights.

In Johnson v. Hux 24 , the ourt said that constitutional issues cannot be raised for the first time on appeal to the ourt of Appeals but must be raised first before the Commission. The claimant alleged a violation of due process contending that the Full Commission had made findings of credibility without having the opportunity to observe the manner and demeanor of the witnesses while giving their testimony. Even though the alleged constitutional violation did not occur until the Full COlrtmission issucd it" decision, the Court S<lid that the constitutional issue had to be raised at the Commission level before it could be addressed by the Court. The Court said that the issue could have been raised by Motion to the Full Commission to reconsider within thirty days following the Opinion.

CHANGE IN PHYSICAL CONDITION Under Ark. Code Ann. ยงn-9-713 (1987), a claimant who has not made a final settlement in his case n1ay obtain modification of a previous award of cOlnpensation within six (6) months of termination of the compensation awarded if he undergoes a change in physical condition. _ In Tul1crl 1ille P. /uterllntio1JnJ Paper Co. 2:>, the claimant sought modification of a previous award of fifty-five percent (55'0 disability, contending entitlement to permanent total disability based on a change in physical condition since the original award. The Commission concluded that the claimant had undergone a change in physical condition but found the change due to the aging process and not D natural consequence of the injury. The claimant's treating physiciDn had pcrformL-d ~urgery on him since the original award and testified that his worsened condition resulted from the natural process of aging acting upon the c1airnant's injury. The Court reversed the Commission's denial of benefits, saying that fair-minded persons with these facts before them could not say that the claimant's \vorsened condition WilS attributable solely to the aging process. The Court found that the change in physical condition WIlS a naturt11 consequence of the injury and remanded the case to lhe Commission to determine the degree of the clairnant's increase in disability.

TEMPORARY TOTAL DISABILITY In COIIIIIII Markeli'. TllOmloll 26 , the Court of Appeals held that, in unscheduled injury cases controlled by Ark. Code Ann. ยง11-9-519 (1987), an employee is not entitled to temporary total disability unless incapacitated, even if the healing period continuc~.

In LJ!gncy Lodge ursillg f-1oJllr l'. McKdJar 27 , the Court found substantial evidence to support the Commission's finding that the claimant was entitled to temporary tot<11 disability.

PRE-EXISTI

G CONDITIONS

In Cox v. Nashville Livestock CC)//'II,;ssioIl 28 , the Court of Appeals addressed the compensability of medical treatment rendered for unstable angina brought about by the claimant's heavy workload in combination with pre-existing heart disease. I 0 actual darnage to heart cells occurred. The Commission denied benefits based on two previous Court of Appeals cases indicating that angina was n"lerely a symptom of underlying heart disease, and that the production of angina from work efforts is not a compcnsftblc injury within the meaning of the Workers' Compensation Law unless there is actual dama;e to the heart resulting therefrom. Blnck v. Ril'erside Fllrl/itllre Co.29; KI!IIIJJcr's i '.

Hnlf 3 . The Court said that its language in Black waS overboard and that the creation of symptoms (rom heart disease by work efforts can be a compensable injury even if no actual physical damage results. Citing Boyd l'. GI!IJi'Yn/lmil/stries 31 , the Court said that "where an on-the-job injury rendered an underlying disease symptomatic, the disability resulting (rom those symptoms may be compensable."

EMPLOYEE - I DEPE DE T CONTRACTOR Under Workers' Compensation Law, employees arc entitled to benefits for workrelated injury while independent contractors are not. The Court of Appeals considered the employee-independent contractor distinction in Wriglit P. 1)/5011 Foods 32 . Citing Fmllklill v. Arkallsas Kmfl, IIIC 33 , the Court listed the following nine (9) faclors which may be considered in determining whether a claimant is an employee or independent 3 2

ARKANSAS

LAWYER

JANUARY

1990

contractor: (l) the right to control the means and the method by which the work is done;

(2) the right to terminate the employment without liability; (3) the method of payment, whether by time, job, piece or other unit of measurement;

(4) the furnishing, or the obligation to furnish, the necessary tools, equipment and materials; (5) whether the person employed is engaged in a distinct occupation or business;

(6) the skill required in a particular occupation; (7) whether the employer is in business; (8) whether the work is an integral part of the regular business of the employer; and (9) the length of time for which the person is employed.

The claimant was a relief truck driver used by Tyson Foods to haul chickens when one of their regular drivers became unavailable or when there was extra chickens to be hauled. He was killed in a collision while driving a truck loaded \"lith chickens. His

widow filed a claim for death benefits. The Court considered the following facts in determining whether the claimant was an employee or independent contractor. Tyson

Foods furnished the tnlck loaded with chickens and the gas and oil for the trip. The supervisor would give the relief driver a time schedule showing when he should be at a certain chicken house. The same work was expected from the relief drivers as was

expected from the regular drivers, and they were paid the same. Relief drivers would be dismissed for "hot rodding," tearing up a truck, or taking an unauthorized detour.

Relief drivers were required to follow the supervisor's directions. The supervisor

testified that he considered the relief drivers to be "part-time Tyson employees." The relief drivers were covered under Tyson's liability insurance. Another relief driver testified that he was expected to follow the same company rules as regular drivers.

Based on the above-mentioned facts, the Court affirmed the Cornrnission's finding that the claimant was an employee of the respondent and awarded benefits.

INTEREST Under Ark. Code Ann. ยง11-9-809, all accrued compensation awarded to the claimant bears interest at the legal rate from the day an award is made by either an Administrative Law Judge or the Full Commission. The Court of Appeals in Ellreka Log HOllies 1'. MallfOlllja3-l, held that the interest contemplated by ยง11-9-809 was applicable to

medical benefits even though these benefits were paid directly to medical providers and not to the claimant, even though an award of interest was not mentioned in the Opinion awarding medical benefits.

ELECTrO

OF REMEDIES

In Biddle P. Smith nlld Cnl1lpbell, 111[.35, the claimant was recelvJI'lg workers' cornpensation benefits from the State of Louisiana but later filed a claim for benefits in Arkansas. The Court was faced with the question as to whether the claimant had made an election of remedies by receiving benefits in Louisiana. The Court affirmed the Commission's finding that an election of remedies had been made and that Arkansas was without jurisdiction. In so doing, the Court said that "the determination as to whether an election of remedies has been made depends upon whether the claimant actively initiated the proceeding or knowingly received benefits pursuant to the laws of another state." The claimant received her benefit checks by mail from Louisiana, had

been informed by the respondent over the telephone that a claim was to be filed in Louisiana and had met with a Louisiana rehabilitation worker on more than one occasion. Under these facts, the ourt concluded that there was substantial evidence to support the Commission's finding that the claimant had made an election of remedies and had knowingly been receiving workers' compensation benefits from the State of Louisiana.

WAGE LOSS DISABILITY In Tiller P. Sears, Roebuck & Co 36 , the Court of Appeals found substantial evidence to support the Commission's award of thirty-five percent (35%) wage loss disability to a forty-six (46) year old female with a high school education with work experience as a cashier, who could LIse an adding machine, take payments for accounts, and work up

deposits. She was limited in her ability to stand and sit, but could drive an automobile.

She was given a fifteen percent (15%) anatomical impairment, and had been limited to work which did not involve repetitive bending or lifting in excess of twenty-five (25) pounds. The Commission noted that the claimant had shown no motivation to return to

work and had not attempted to do so.

In Pigg, the Court affirmed the Commission's denial of compensation finding that the assault arose out of a purely personal dispute between the claimant and the people who assaulted her on the job. The claimant was apparently assaulted by her manager's estranged wife and two of the wife's relatives because the claimant had taken a trip to Russellville with her manager. In Sail Alltollio SIloes, the Court affirmed the Commission's finding of compensability based on the fact that the ass.1ult was causally related to the work. The dispute giving rise to the assault centered around a pay raise given to some employees and not others. The positional risk doctrine was not applied in either case. The Court emphaSized that this doctrine is to be applied only after the assault has been determined not to have been personal and not to have had its origin in the work.

FOOT OTES 127 Ark. App. 90, 768 SW2d 237 (1989) 2 28 Ark. App. 90, _ SW2d _ (1989) 3 29 Ark. App. 80, _ SW2d _ (1989) ~ 28 Ark. App. 84,_SW2d _(1989) ~ 265 Ark. 365, 578 SW2d 232 (1979) 6 28 Ark. App. 193, _ SW2d _ 09 9) 7 28 Ark. App. 224, _ SW2d _ (1989) 8 28 Ark. App. 224, _ SW2d _ (989) 9 1986 Ark. ACf 5 10 10 298 Ark. 363, 768 SW2d 521 (1989) 11 28 Ark. App. 234, _ SW2d _ (1989) 12 28 Ark. App. 352, _ SW2d _ (1989) 13 Ark. Code Ann. ยง11-9-525 (987) 14 28 Ark. App. 201, _ SW2d _ (1989) 15 27 Ark. App. 42, 766 SW2d 36 (1989) 16 Ark. Code Ann ยง 11-9-702 (1987) 17 28 Ark. App. 81,_SW2d _ (1989) 18 26 Ark. 26-1, 766 SW2d 936 (1989) 19 298 Ark. 363,768 SW2d 521 (1989)

20 28 Ark. App. 187, _ SW2d _ (989) 2129Ark.App.I,_SW2d_(989) 22 27 Ark. App. 222, _ SW2d _ (1989) 23 28 Ark. App. 234, _SW2d _ (1989) 24 27 Ark. App. 235, _ SW2d _ (989) 25 28 Ark. App. 187, _ SW2d (1989) 26 28 Ark. App. 196, _ SW2d (989) 27 27 Ark. App. 235, _ SW2d _ (989) 28 26 Ark. App. 260,763 SW2d 101 (1989) 29 28 Ark. App.138,_SW2d (989) 30 6 Ark. App. 370,642 SW2d 338 (1982) 31 7 Ark. App. 181,646 SW2d 31 (1983) 32 22 Ark. App. 103 733 SW2d 750 (1987) 33 28Ark.App.261,_SW2d_(1989) 34 5 Ark. App. 264, 635 SW2d 286 (1982) 35 28 Ark. App. 46, _SW2d _ (1989) 36 28 Ark. App. 46, _ SW2d (1989) 37 27 Ark. App. 159,767 SW2d 544 (1989)

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ARKANSAS

LAWYER

JANUARY

1990

By David L. Pake he pedal Funds of the Workers'

T

Compensation Commission are,

arguably, the most enigmatic areas of workers' cornpensation law. The Special Funds arc comprised of two entirely sep<Hatc entities, the Second Injury Trust Fund and the Death and Permanent Toted Disability Trust Fund, which arc under the control of one Administrator. These

funds were defended by the Office of the Attorney General until July 1985, at which time an in-hollse )egal staff was

added.

Schematically, the Special Funds, being an entity of State government, presently exist as a subdivision of the Workers' ompensation Commissiun.

Ark. Code Ann. §1l-9-301 provides for the establislllncnt of the Workers' Compensation Fund, which exists to finance the daily operation of the Workers' Compensation Commission, and the two Special Funds, which have separate and distinct purposes.

Ark. ode Ann. §§1l-9-303, 11-9304, and 11-9-305 provide the means by which these three funds derive the monies on which to operate. Those statutes require that the Insurance Commissioner collect from workers' compensation insurance carriers, selfinsured, and the Public Employee Claims Division of the State Insurance Departrnent an annual tax not to exceed 3% of the written manual premium, which is the amount of workers' compensation insurance written in a given year. This tax money is then transferred to the Workers' Com pen-

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Dal1id L. Pake is fl sel1;or allonley for tile ArktHlsas Workers' COl1l!Jt'lIsatioJl CommisSiOll, Special Fllnds. I-Ie is {llso a Mlll1iciJJal Ilidge for II,,' City of Malllllelle, Arhmsas. He received IIis undergradllate degree frolll IIII' Ulliversity of Arka/lsas at Little Hock allll I,;s I. D. fmlll tile U/liversity of Arkansas (If Fayetteville.

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sation Commission, and a portion is

692 S.W.2d 786 (1985), as a "loss of

placed in each fund according to the financial needs of each at the time of certification.

While this arrangement might, at

earning capacity due to a non-work

first appearance, seem to constitute a

conflict of interest (since the three funds share from the same pool of money), such is not the case. In fact, the history of case law development of both the Second Injury Trust Fund and the Death and Permanent Total Disability Trust Fund is replete with examples which illustrate that the Workers' Compensation Commission, at both the Administrative Law Judge and the Full Commission level, has not always been eager to adopt the statutory interpretations advanced by the Special Funds. Furthermore, in most instances where the Workers' Compensation

Commission

has

agreed with the positions taken by the Special Funds, the Appellate Courts of this State have agreed with the Commission's pretation.

statutory

inter-

THE SECOND INJURY TRUST FUND The duties and obligations of the Second Injury Trust Fund are enumerated in Ark. Code Ann. §11-9 525. While, admittedly, that passage can be confusing and capable of several diverse interpretations, one of

the keys to understanding this area of the law is to be aware of the definitions of certain terms used in those

related condition." This case law definition had the effect of requiring a showing of actual and permanent incapacity to earn wages from the time of manifestation of the prior injury or condition until the Lime of the last

injury and beyond for both work related and non-work related prior conditions.

In March of 1988, however, the Arkansas Supreme Court redefined the term "impairment." In the case Mid-Stnte COllstmclion Co. v.

Second Injury Fund nlld Rny Dnvis, 295

Ark. 1, 746 S. W.2d 539 (1988), the Court left intact that portion of the former definition which described "impairment" as a "non-work related

condition," but dropped the requirement that it necessarily involve a loss of earning capacity. The Court in Mid-Slnte announced its "three hurdle" test, whereby the Second Injury Trust Fund will have liability only if all three "hurdles" are cleared.

First, the employee has to suffer a compensable injury at his place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. And third, the disability or impairment must have combined

with the recent compenS<1ble injury to produce the current disability status.

At this point, it is important to note that the Court in Mid-Stnte did not attempt to change or even deal with the statutorily defined term "disability." In fact, it emphasized that

passages.

The two terms "disability" and

it was concerned

"impairment" are used numerous

hurdle as it relates to the term

times in §525. The definition of "disability" is specifically defined in Ark. Code Ann. §11-9-102(5) as the

"impairment."

It is further helpful at this point to realize that the terms "impairment" and "anatomical impairment" are not

"incapacity because of injury to earn,

in the same or any other employment, the wages which the employee was receiving at the time of the injury."

"Injury" is defined in Ark. Code Ann. §11-9-102(4) as "only accidental injury arising out of and in the course of

employment, including occupational diseases as set out in §11-9-60l(e) and occupational infections arising out of and in the course of employment."

The term "impairment" is not defined

statutorily, but has been defined and re-defined judicially.

The Court of Appeals first defined the word "impairment" in the case of Osnge Oil Co. v. I-Inrold Rogers nlld Seeolldllljllry Flllld, 15 Ark. App. 319,

3 6

ARKANSAS

with the second

synonymous. The latter was defined in Second Injury FlI11d v. Frnser-Owe1ls, Ille., 17 Ark. App. 58,702 S.W.2d 828

manifestation of contribution to a loss of wage earning capacity after the last injury even though there is no requirement it exhibit a showing of wage loss disabiUty prior to that last work related injury.

Also contained in §525(a)(l) is the key word "handicapped." That term had been defined in Fraser-Owens, Illc. by the Court of Appeals to mean "a physical disability that limits the capacity to work." It was re-defined, however, by the Arkansas Supreme Court in Mid-Stnte by removing the requirement that it must limit the capacity to work. Instead, that Court stressed that whether a worker is handicapped is determined by the substantial nature of the impairment. §525(a)(3) is an important passage because it specifically excludes "latent conditions" as pre-existing disabilities or impairments for purposes of

Second Injury Trust Fund contribution. It explains that a latent condition is any condition which is unknown to the employee or employer at the time of the last work related injury. Case law has provided another situation in which the Second Injury Trust Fund does not have liability.

The twin cases of McCnrver nlld Munro-Clenr Lake Footwenr v. Secolld Injury FIII/d, 289 Ark. 509, 715 S.W.2d 429 (1986) and Rice/mId Foods v. Secolld Illjury FIII/d, 289 Ark. 528,715 S.W.2d

432 (1986) were born on July 21,1986. he Arkansas Supreme Court

T

announced in those cases that

the Second Injury Trust Fund is not responsible for the payment of weekly benefits for wage loss disability where all of an injured worker's disability arises out of work related injuries while working for the S<1me employer. The Court of Appeals engaged in a comprehensive discussion of the factors involved in that decision, and the Arkansas

(1986), as "the anatomical loss as Supreme Court in its opinion reflected by the common usage of acknowledged the soundness of that medical impairment ratings." One reasoning. The Supreme Court, in must understand the differences in reviewing the language of the statute, these two terms to avoid the common observed that the act required the misconception that the "combination" employer to be liable only for the of disabilities or impairments referred disability or impairment which occurs to in the third hurdle described in Mid- in that employment. It reasoned from Stafe means merely the combination of that statement that the employer anatomical impairnlent ratings. Such should be held liable for the disability is not the case. The import of that or impairment occasioned by that third hurdle is the necessity that a employment relationship. prior "impairment" (i.e., non-work Where it has liability, the Second related condition) must exhibit some Injury Trust Fund is responsible for

LAWYER

JA

VARY

1990

only one type of benefit, wage loss disability. It is not responsible under the law for payments of medical bills, temporary total disability benefits, the anatomical impairment rating, or benefits paid to the claimant for vocational rehabilitation. ยง525(c)(2) authorizes the Second Injury Trust Fund to enter into Joint Petition settlements and lump sum

agreements in the same way as respondent employers and insurance carriers. Attorneys who represent workers' compensation claimants

should realize, however, that if they settle their claims by Joint Petition, any contribution by the Second Injury Trust Fund must be made at that time.

If the claimant settles only with the employer, he may not later bring a separate action against the Second Injury Trust Fund for any benefits arising out of that claim. This concept was stated in Sayre v. Second Injllry FIII/d, 12 Ark. App. 238,674 S.W.2d 941 (1984), and has been reemphasized in Ward v. Fayetteville City Hospital and Second Injllry FIII/d, CA88-288 (Opinion delivered May 24, 1989). any of the perplexing issues surrounding Second Injury Trust Fu nd legisla tion ha ve been resolved, but several still remain. Hopefully, in the months to come these issues will be addressed by the Appellate Courts, and finally laid to rest.

M

THE DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND The second trust fund administered by the Special Funds Administrator is the Death and Permanent Total Disability Trust Fund. This fund has enjoyed a less publicized existence than has its sister fund, and has developed a history of its own. A

benefits can be received, and the amount each beneficiary is to receive.

As its name implies, the Death and Permanent Total Disability Trust Fund is responsible for the payment of only two types of benefits, permanent total disability benefits to a claimant and death benefits to dependents of a deceased employee whose death was caused by a compensable injury. Ark. Code Ann. ยง11-9-502 explains that the obligation of the Death and Permanent Total Disability Trust Fund to pay weekly benefits arises when the employer or his insurance carrier has

first paid $75,000.00 in weekly benefits. While this may seem to be a fairly simple concept, we lawyers have managed to generate various issues on

the interpretation of statutory acts involving this fund.

One can track the developmental history of this part of the act by studying case law generated from the Workers' Compensation Commission

C700085 (Opinion rendered March 25, 1986). In that case, the Administrative Law judge made a finding that a claimant was permanently totally

disabled, but apportioned 20% of that to a pre-existing condition pursuant to

Ark. Stat. Ann. ยง81-1313(f)(2). The employer then was found liable for only 80%. No appeal was taken from that decision. The payment of 80% in benefits by the employer amounted to $27,720.00 in permanent total disability benefits. The claimant then looked to the Death and Permanent Total Disability Bank Fund in an attempt to get contribution when the employer stopped its payments. The Workers' Compensation Commission

refused to force contribution. It did so based upon the clear wording of the statute in effect at the time that said the employer had to pay the first $50,000.00 in permanent total disability benefits.

It is appropriate at this point to cite another situation where a permanently totally disabled claimant could fail to receive benefits from the Death and Permanent Total Disability Trust Fund.

It is common for claimants to settle by joint Petition their workers' compensation claims

and Appellate Courts.

In the case of Hill v. CGR Medical Corporation, 282 Ark. 35, 665 S. W.2d 274 (1984), the employer had paid $16,000.00 in weekly benefits and was entitled to receive over $46,000.00 as subrogee from the settlement of the third party tort action. At the time of when they are receiving Social that injury, the employer had a Security Disability benefits. maximum obligation of $50,000.00.

The Sayre case previously cited in The workers' compensation insurance carrier agreed to waive its subrogation

this article says that the claimant may not bring any other claim arising out

rights and the claimant's dependents agreed to absolve the carrier of the obligation to pay future benefits to them. The dependents then sought to

of the injury for which he is receiving the settlement. Recently, the Sayre case was challenged in the case of Strallon v. Death alld Perlllanent Total Disability Trllst Flllld, CA88-414 (Opinion delivered May 24, 1989). The Court of Appeals held that a claimant may not settle his case against the employer by

obtain immediate contribution from

the Fund. The Arkansas Supreme Court held that the obligation of the Fund to commence payment was to be

1973, it was formed for the purpose of

determined by calculating the date on Joint Petition, then later bring an which the employer would have paid action against the Death and out its $50,000.00 obligation had it Permanent Total Disability Trust Fund.

Unfortunately, there is no continued to pay weekly benefits. The issue of whether the payment of the apparent satisfactory solution to the

setting limits on the amount of weekly compensation to be paid by employers in cases of death or

accelerate the date on which the Fund must begin its payment was laid to

creation of the Arkansas Legislature in

permanent total disability. This purpose is accomplished by authorizing the fund to initiate weekly

payments when the employer has reached its maxirr'IUm statutory cap.

Ark. Code Ann. ยง11-9-527, read in conjunction with certain other statutory provisions, defines who is entitled to receive benefits from this

fund, the period of time for which

employer's obligation in advance can

rest and has not since been challenged.

A ttorneys who represent claimants should be aware of situations which

could prevent a permanently totally disabled client from later receiving benefits from this Fund. One such

situation from the claimant's point of view. A review of the act shows that

the Death and Permanent Total Disability Trust Fund has not been

given statutory authority to settle cases by Joint Petition. The Fund takes the position this was not an oversight

situation occurred in the case of

by the Legislature because it did specifically grant such authority to the Second Injury Trust Fund. Assuming

Charles Siegisllllllld v. State of Arkallsas MRDDS alld Death and Penllal/ellt Total Disability Balik FIII/d, WCC No.

and Permanent Total Disability Trust Fund could enter into joint Petition

for the sake of argument the Death

settlements, it is very unlikely the Fund would dO so. The payment of such claims by Joint Petition settlement would occur, in many cases, months and sometimes years before the obligation would normally become due. Settlement, then, would not be a sound actuilrial practice from the viewpoint of the fund.

From time to time, issues have arisen regarding what types of benefits may be credited by the employer in meeting his statutory maximum obligation. In the case of Sparks RegiOlwl Medical Cell IeI' v. Death alld Perlllallellt Total Disability Balik Flilld, 22 Ark. App. 204, 737 S.W.2d 463 (1987), the employer contended that it could take credit for the payment of temporary total disability benefits toward its obligation. The Court of Appeals refl!Sed to allow such a credit, saying that only benefits for permanent total disability could

be applied. The Workers' Compensation Commission extended that reasoning in the case of Ertle alld Rector-Phillips-Morse v. Dealh alld Perlllallellt Total Disability Balik Flllld, WCC No. C905816 (Opinion filed May 26, 1987), when it declared that any payments made for current total disability, likewise, could not be credited. Ertle was not appealed.

Another issue presently before the Workers' Compensation Commission is concerned with whether the employer in a death case can credit the lump sum which the widow is paid at the time of renlarriage to its maximum obligation. It has been determined at the Administrative Law Judge level that such a credit is not permissible. That case is being considered presently by the Full Commission, and will most likely make its way eventually to the Court of Appeals.

An interesting issue has arisen in the case of Etzkol"ll v. j.A. Riggs Tractor Co. alld Death alld Perlllallellt Tolal Disability Tmst Flllld, WCC No. 0607096 (Opinion filed April 18, 1989). The claimant sustained severe injuries in May 1986 while within the course and scope of his employment.

He has undergone numerous surgical procedures since that time, and it is unlikely that he will ever return to gainful employment. The employer has taken the position that the claimant is permanently totally disabled and was so disabled from the time of the injury. Such a position, if

allowed, has the effect of limiting the employer's liability for weekly benefits to $75,000.00 because all weekly benefits from the date of the injury would be capable of being credited to the employer's obligation as payments for permanent total disability.

The Death and Permanent Total Disability Trust Fund has taken the position that the medical evidence shows the claimant had not reached the end of his healing period as that term is defined in Ark. Code Ann. §11-9-102(6) and furlher explained in Mad Blltcher, Illc. v. Parker, 4 Ark. App. 124,628 S.W.2d 582 (1982). It further contends that all periods of time within the healing period when a claimant is totally disabled from work are properly characterized as periods of temporary total disability, which cannot be credited by the employer against its $75,000.00 obligation.

The Administrative Law Judge found that the term "temporary" total disability was merely a classification of total disability and did not require a showing that the disability was only temporary in nature. He found further that the term "permanent" is used to describe the nature of the claimant's underlying anatomical or

physical condition and not the type of disability being experienced. These findings, then, led him to the conclusion that all periods of total disability within the healing period were properly classified as periods of temporary total disability, for which the employer could not t<lke <l credit.

The Full Commission affirmed the Administrative Law Judge and this case is presently on appeal to the Court of Appea Is. SUMMARY Ithough case law development in the area of Death and Permanent Total Disability Trust Fund law has begun later and has been less prolific than that of the Second Injury Trust Fund, it will probably reach the point of clarification contemporaneous with the Second

A

Injury Trust Fund. There are fewer issues with which to contend, and those issues presently identified are proceeding toward timely resolution.

Absent a statutory change in the substantive law, we may see a point in the near future \·vhcrc all issues arc resolved. Until that time, several parts of the laws of the Special Funds will remain an enigma.

John E. McAllister, P.E.

EXPERT WITNESS

Graduate Electrical Engineer, 34 Years Industrial Experience.

Specialist in Industrial Machine Guarding and Safety.

Born 8-29-21, Milltown, N.B. Canada, B.S. in Electrical Engineering, 1947, from University of New Brunswick, Fredericton, N.B. Canada.

14 years engineering and sales experience with General Electric Co. 11 years experience in electric motor winding, industrial control panel manufacturing and sales. 9 years President of large safety equipment distributor specializing primarily in the metal fonning industry.

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Born 2-12-24. Amarillo. Texas: U.S. Navy. 1943-1946: Oklahoma State University. 1946-1949. B.S. Mech. Engineering: Unit Rig & Equipment Co.. Tulsa, 1949-1982; Responsible for all engineering functions 1957-1975: Fonned Company for Unit Rig in Brazil 1976; General Manager, Canadian Orx;ralions. 1977; In charge of Unit Rig Product Liti~alion 1977-1982.

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â&#x20AC;˘ Stress..Related Heart Attack and Psychological Injury Claims Under the Arkansas Workers' Compensation Act

By J. C. Baker In the not too distant past, stress related heart attack claims and stress related

psychological injury claims were somewhat of a rarity.

However, stress related claims are

becoming far more prevalent throughout the country, including Arkansas, perhaps because society is becoming more aware of the

medical significance of stress. Also, society's trend toward becoming more litigious is bound to playa role in the proliferation of stress related claims.

The medical community does appear to be becoming more conscious of the possible effects of emotional stress. More and more, in

the case of workers who have suffered industrial injuries, treating physicians who can not corroborate a worker's continuing

subjective complaints of pain with any objecting findings reach one of two conclusions: Either the worker is malingering

or there has been a psychological response.

Good doctors, who are inclined to trust their patients, err on the side of determining that there has been a psychological response and, as a consequence, refer the worker to a

psychiatrist or a psychologist for evaluation and treatment.

The psychiatrist or psychologist generally will perform a battery of tests and offer treatment in the forms of psychotherapy, biofeedback, medication at times, along with other modalities of treatment.

James C. Baker, Jr., is all attortley at tlte Little Rock Law Firm of Friday, Eldredge & Clark. His practice COllcel1trates ill Workers' Compel1satioll alld Ge1lernl Litigatiofl.

He received Itis Emdergraduate degree from Helldrix College fliEd !tis J. D from tile U1liversity of Arkal1sas at Fayetteville.

4 0

ARKANSAS

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Also, there is a greater consciollsness and knowledge of heart disease and its many different causes among which, according to some cardiologists, is emotional stress. The Veteran's Administration Cardiac Rehabilitation Prograrn educational booklet quotes the American Heart Association as having identified nine factors which increase a person's

chances of having a heart attack. These risk factors are as follows: 1. Cigarette smoking 2. High blood pressu re 3. High levels of cholesterol or other fatty substances in the blood 4. Stress and tension 5. Heredity (a family history of a heart attack in middle age) 6. Diabetes 7. Lack of exercise 8. High intake of animal fat 9. Overweight. lemphasis supplied I The Veteran's Administration's booklet further cautions with regard to stress and tension: Stress and tension may be the leading risk factors in heart disease.

Your personality will determine your reaction to stress. People who are aggressive are more likely to have heart disease than people who are

easy going.

Although it is difficult to change your personality, you can be aware of situations which may cause stress and either avoid them or handle

them in a different way. Being aware of what situations are stressful for

you is the first step in eliminating this risk factor.

In addition to this greater understanding of the effects of emotional stress by both the medical community and society at large, it should also be remembered that the claimant's bar does seek methods of forging wider basis of liability and larger recoveries and the area of emotional stress seems to be a fertile

there ~,,;: a ~eater con,,;:~,ousId ness and k now e ge 0 f h eart d'1sease and 1ts . many dif'£lerent casues among which ... is " •••

.L::7

~

emotional Stress."

ground for reaching these exact results. Moreover, in today's society, there does appear to be less stigma to admitting that you cannot handle stress. As another lawyer in our firm recently suggested at a workers' compensation seminar, "real men

not only each quiche, they cry and they have stress related heart attacks."

The following is a brief review of the manner in which our appellate courts and the Full Arkansas Workers' Compensation Commission have

responded to stress related heart attack claims and stress related psychological claims.

STRESS RELATED HEART ATTACKS In Arkansas, a workers' compensation claimant bears the burden of

proving that his injury was the result of an accident that arose in the course of his employment, and that it grew out of or resulted from the employment. American Red Cross v.

WilSall, 257 Ark. 647,649,519 S.W.2d 60 (1975). Generally, "arising out of the employment" refers to the origin or cause of the accident, while the phrase "in the course of the employment" refers to the time, place and circumstances under which the injury occurred. DwellS v. National Healt1l Lnboratories, IIIC., 8 Ark. App. 92,97,648 S.W.2d 829 (1983). The two most litigated issues in stress related heart attack cases is whether there has truly been an accidental injury and whether the heart attack is causally related to the employment.

With regard to whether an accidental injury has occurred, jurisdictions have divided between requiring a showing of an unusual

.I.~.I'

"There is no requirement in Arkansas that in order for a heart attack to be compensable, it must be caused ... by some unusual exertion rather than by the employee's regular work."

exertion which precipitated the heart attack and those jurisdictions which only require a showing of usual exertion.

Professor Larson's treatise on workers' compensation law noted in 1987 that the number of jurisdictions which accept the usual exertion rule in heart attack cases is three to one over those which reject this standard. IB Larson, Tile Law of Wurkl1lell'~

COlI/peJ/salioJ/, ยง 38.31(a) 7-56-7-89 (1987).

Arkansas clearly adopted the majority viewpoint in C.

J.

Horl1cr COI1lJHlll.l/, et nJ. lI.

StriJ/gfel/ow, el al., 1-1 Ark. App. 138, 685 S.W.2d 533 (1985) wherein the Court of Appeals stated:

There is no requirement in Arkansas that in order for a heart attack to be conlpens[lble, it must be caused or brought on by some unusual exertion rather than by the employee's

regular work.

In this case, the claimant's work was clerical in nature consisting of transposing orders onto invoices, answering telephone, and other

sedentary chores. On the day of his injury, he was sitting at his desk engaged in his normal job duties when he sudden slumped forward and died of a myocardial infarction. The Court of Appeals affirmed the Full Commission's detennination that the claimant died of a compensable

heart attack because one of the treating physicians opined that the claimant's long hours and job pressures were contributing factors and

could have precipitated the myocardial infarction.

Subsequently, the Supreme Court accepted cerliorari from the Court of Appeals and affirmed the decision. C. J. /-Iol"ller COlI/paJ/Y, d al v.

StriJ/gfellow, et al., 286 Ark. 342, 691 S.W.2d 861 (1985). The Supreme Court reasoned that a stress related heart attack is an accidental injury

even though the work being performed at the time is usual citing the follOWing generally accepted definition of accidental injury: lAin accidental injury arises out uf the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or contributing cause of the injLlry. In short, an injury is accidental when either the cause or the result is unexpected or aCcidental, although the work being done is usual or ordinary.

Thus, the Supreme Court agreed with the Court of Appeals in holding that where the employment precipitates or contributes to a heart attack there is a causal relationship between the injury and the

employment.

Although the Homer case answered the question of whether a heart attack can be found to be compensable if the victim is engaged in his usual work at the time of the attack, the issue still remains, when is the heart attack caused by the employment?

Generally, there is no compensation for heart attacks that are merely contemporaneous with or coincidental to the claimant's employment.

See, Rey"olds Metal COlI/pnllY v. Robbi,lS, 231 Ark. '158,328 S.W.2d 489 (1959), wlill/er v. Sevier COlI/pnllY Farmers' Cooperative, IIIC., 233 Ark. 762, 346 S.W.2d 673 (1961), /-Ioemer Waldorf Cor"., et al v. Alford, 255 Ark. 431,500 S.W.2d 758 (1973), YOllllg v. Heekill Call1lillg CompallY, 13 Ark. App. 199,681 S.w.2d 419 (1985).

Perhaps the clearest guidance on whether a heart attack is caused by the claimant's employment is found in two particular decisions

rendered 011 the same day by the Arkansas Workers' Compensation Commission. Terry Hilchcock v. Ciglla Illsumllce CompallY, Full Commission Opinion filed August 6, 1987 (Claim o. 0600576), and DOll/in Davis v. Clebume Coullly, Full Commission Opinion filed August 6,1987 (Claim No. 0601062). affirmed by the Arkansas Court of Appeals, in an Opinion not designated for publication, June 8, 1988, (CA 4 2

ARK A

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1990

87-396). In these two cases the Commission relied upon publications by the American Heart Association as well as the medical testimony presented in those cases to hold that in order to be compensable, a stress induced heart attack must have a close temporal relationship with the claimant's stressful event of work. In the Hitchcock case, the Commission adopted these findings of the American Heart Association: The shorter the tinle interval between the exposure to a potentially noxious stimulus and the appearance of clinical or pathologic evidence of new heart disease or disfunction, the more likely is there to be a causal relationship. Conversely, the further apart they are in time, the less likely is the cause and effect relationship.

Report of the Committee 011 Stress, Straitl aud Heart Disease, American Heart Association, Sidney Scherhs, M.D., Chairman, "Circulation" Volume 55, No.5, May, 1977. In Davis, slIpra, the Full Commission relied upon the following letter from Dr. James Doherty: I have reviewed the hearing and testimony given May 6,1986, before the.

Administrative Law Judge ... in my opinion, Mrs. Davis experienced an inferior myocardial infarction on September 2, 1985. The circumstances surrounding the episode suggests that it was not work related. She was not at work at the time (September 2 was Labor Day). Changes in the patient's lifestyle related to the job and its demands appeared to be a factor over which the patient has control, i.e., smoking, eating habits and rest. The "Type A" personality mentioned by the patient still continues to be debated as to its identity as a risk factor, so it should not be included. Even if one were to include "Type A" as a risk factor, Dr. Meyer Friedman who coined the term and described the behavior type, also describes its management and cure. Coronary atherosclerosis is disease involving the arteries of an individual for years before symptoms and heart attacks result. Recognized risk factors felt to playa part in the development of the pathologic atheromatous lesions include a family history of heart disease, high blood pressure, high blood fat (hyper-cholesterol-eOlia), cigarette smoking, diabetes mellitus, lack of physical activity, and contraceptive pills (as outlined in the booklet from the American Heart Association, which is enclosed). "Stress" is a factor increases the body's release of hormones ephinephrine and norepi-nephrine which increases the body's ability to fight or flee from cause. These hormones are short lived and when casue is removed, hormones are soon destroyed in the body. Repeated exposure can result in fatigue, anxiety and sometimes mental breakdown. This also can aggravate the existing heart condition at time of stress. I don't constme Mrs. Davis' heart attack due to stress, but due to disease of her right coronary artery as described by Dr. Meacham. (emphasis original).

Thus, to summarize the current state of stress induced heart attacks in Arkansas, it is first clear that there is no requirement, contrary to older decisions, that the stress be unusual or extraordinary in nature. A stress related heart attack can be compensable even though the work is usual if the requirement of a causal connection between the employment and the heart attack is met. To determine if there is a causal connection between the employment and the heart attack, the Full Commission has stated that it will consider the temporal relationship between the employment and the heart attack as well as the existence of other risk factors. Thus, it can be concluded that the stress related heart attacks most likely to be found compensable " are those which occur as a result of unusual job pressures, with an absence of the other risk factors, and there exists a close temporal relationship to one's employment.

Heart attacks least likely to be fOllnd compensable are those where the claimant has not been engaged in unusual job activities, where there is a poor temporal relationship between the heart attack and the employment, and where many of the heart attack risk factors exist.

. . . the Full Commission has stated that it will consider the temporal relationship between employment and the heart attack as well as the existence of other factors."

STRESS RELATED PSYCHOLOGICAL CLAIMS Perhaps surprisingly, the law of stress related psychological injuries is the opposite of the law of stress related heart attacks. Our Court of Appeals has very definitely stated that claims for 11011traumatically induced psychological injury require the claimant to show exposure to more than the ordinary day-today stress experienced by a II workers. OWf.'115 tI. Nalio/wl Health LIlbornlories, IIIC., 8 Ark. App. 92, 648 S.W.2d 829 (1983) and Barrell P. Arkallsas Re"abililalioll Serz>ices, 10 Ark. App. 102,661 S.W.2d 439 (1983). In Dwells, the court established the following rule for non-traumatically induced psychological injuries: We hold that where, as in the case at bar, the psychological injury, if any, resulted from non-traumatically induced events, then the worker must show more than the ordinary day to-day stress to which all workers are su bjected.

Iii. at 96. otice, that the Court of Appeals did not say more than the ordinary day-ta-day stress to which other workers sirnilarly situated are subjected. Additionally, the claimant must sho\-\' that the psychological injury was casually connected to this stress. (OWl'IlS, slIpra; Barrett, supra). Thus, in order to establish Cl cumpensable 11011traulllatically induced psychological injury, a claimant must show (1) that he was subjected to more than to ordinary day-to-dC\y jub stress to which all workers C\re subjected; and, (2) in addition, he must show thC\t the psychological injury \'\'as causally connected to this stress.

A fairly recent Full Commission decision, McClniJl 1.'. Texnco, /1lC., Full Commission Opinion filed February 27, 1989 (Claim No. D7054799) is indicative of the present Full Commission's treatment of stress related psychological claims. In this case, lhe claimant was the manager of a Texaco convenience store located in a high crime area. Her \vork required her to remain on call 24 hours a dC\y and she occasionally had to work 65 hours a week due to other employee absences. Citing the store's location and high crin'!e district, the occasional fights, drunks, derelicts which she was exposed to at the store, and the long hours which she was required to work, claimant testified that stress required her to seck medical treatment and evcnturdly, her stress disabled her from working.

With regard to the first issue of whether the claimant even suffered an accidental injury, the Full Commission stated:

" . . . the law of stress related psychological injuries is the opposite of the law of stress related heart attacks."

Under the facts of this case, we find that the claimant h<ls failed to prove that she was subjected to more than ordinary day-to-d<lY stre~s to which all workers are subjected. Certainly, it is not unusual for some individuals to work 65 hours a week at times and to remain on call 2.. hours a day. Further, although the claimant testified that the station was in a high crime area and that they frequently had problems with drunks and derelicts, she testified that neither she nor the other employees were required to intervene in such C<lSCS but merely called the police. Further, it is important to note that at the time the claimant took the job she testified that she knew the requirements of the job and tht.' location of the station. She also testified th<lt she knew prior to taking the job that she would h<lve to work more than 45 hours a week should the circumstances require.

Second, on the question of caUSed connection, the Full Commission determined thelt the claimant's psychological injury W<lS not G1Usal1y connected to her employment. Similar to the fashion in which the Full Commissioll will eX<lmine risk felctors present with Cl claimant in a stress induced he<lft ilttilck case, the Full Commission will examine other stressors in the life of olle who is seeking compcnsCltion for a stress induced psychological injury. Agilin, in this decision, the FuJI Commission, \.... rote:

44

ARKANSAS

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1990

In addition to her failuTe to prove by a prepondcr;lIlce of the evidence that she was subjected to ullusLlal stress, the claimant has fniled to prove by a prepunderance of the evidence that her psychological injury was causally connected to her employment. Instead, the evidence in this case indicates that the claimant's psychologic<ll problems were most likely caused by things totally unrelated to her employment The claimant testified to numerous things which caused her stress. The c1aimnnt testified that she was initi;dly married at age 14 <lnd divorced at age 21. The record also reflects that the claimant was unable to have children. The c1aimcmt later adopted a son but is a single parent and is forced to live with her mother for financial reasons. The claimant admitted that she felt angry at her brothers and sisters because she had been left to take care of her mother. Further, there was evidence that the c1airnant had nun1erous arguments with a boyfriend between 1979 and 1988. In fact, as a result of these fights, depression and stress, the claimant has allemptcd suicide on three sep.uate occasions; including two prior to her work for respondent. These attempts occurred in "1983 after the claimant had lost a job, wrecked her car and broken up with her boyfriend and prior to that in "1981 \vhen she again broke up with this same boyfriend. The claimant also testified that her father had died of cancer \Nhen she was three and that two years later her mother remarried a man who \vas an alcoholic and abusive towards her and her mother.

The Arkansas Court of Appeals recently affirmed the Full Commission's decision in McClnill, but in affirrning this decision, the Court modified the test for proving the compensability of stress related psychological injuries. MeCiaill v. Texaco, Ille., et. aI., (No. C. A. 89-129, November 22, 1989) The Court found that the proper question should be whether the claimant has been under more that the ordinary day-today stress to which other sin1ilarly situated employees are subjected.

Thus, in order to prove a compensable non-traumatically induced psychological injury, a claimant must prove that he has been under more than the ordinary day-to-day stress experienced by similarly situated employees, and that the psychological injury was caused by the claimant's employment. In considering the question of causation, the Full Commission will examine other stressors in the claimant's life similar to the manner in which the Full Commission examines other risk factors present with a claimant who is seeking compensation for a stress related heart attack.

CONCLUSION In order to prove a stress related heart attack in Arkansas, a claimant must prove that he has suffered an accidental injury caused by his employment. The requirement of an accidental injury does not prohibit compensation for heart attacks which result even though the claimant is engaged in normal work activities. However, the c1airnant does have to show a causal connection and in detemlining whether the causal connection has been proven, the Commission will •••••••••••••••••••••••••• examine the temporal relationship between the heart attack and the ernployment as well as the existence of other risk factors.

In order to prove a compensable non-traumatically induced psychological injury, the claimant mllst prove that he has been subject to more than the ordinary day-to-day stress. The claimant must also demonstrate a causal connection between the employment and the psychological injury and, in determining vvhether this proof has been met, the Commission will examine other stressors existent in the claimant's life.

" ... in order to prove a compensable

non-traumatically induced psychological injury, a claimant must prove that he has been under more than ordinary day-t<HJay stress ••• caused by the claimant's employment"

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LAWYER

Attention Former Arkansas Judges: Arbitration Forums, Inc., a nonprofit organization with over 40 years experience in resolving insurance related disputes, is looking for former judges from the Arkansas Supreme Court, Court of Appeals or Superior Court to serve as arbitrators/mediators for our Accident Arbitration Forum program.

We are looking for former judges because of their expertise and demonstrated objectivity.

As an arbitrator/mediator, you'll be asked to resolve any insurance related dispute either through binding arbitration or advisory mediation.

For more information call or write:

(800) 426-8889 Arbitration Forums, Inc. 200 White Plains Road P.O. Box 66 Tarrytown, New York 10591

JANUARY

1990

VOCALS Shows Pro Bono Attorneys Do Make A Difference, and Have Enjoy Doing It

By Don Hollingsworth, Executive Director, Volunteers of Central Arkansas Legal Services "Mrs. Smith is a hard working, decent mother of four who without legal representation might be out on the streets today. I appreciate VOCALS giving me the opportunity to be of service."

This pro bono attorney spent over 100 hours on two interrelated cases for Mrs. Smith. While such a large expenditure of time on a pro bono case is unusual, it is not unusual for pro bono cases to be rewarding experiences for private attorneys. Further, this attorney's law firm has a policy of giving billable hours credit for pro bono work through VOCALS. There are now over 1,000 attorneys in Arkansas who participate in organized pro bono by providing free legal help to the poor or making an annual contribution of 5250. I am told that the first organized pro bono effort in our state was started in the 1930's. The first large scale effort was the establishment of Volunteers' Organization for Central Arkansas Legal Services, which is a joint venture of the Pulaski County Bar Association and CALS. Thereafter CALS established pro bono r ferral systems with the assis-tance of the County Bar Associations in Pine Bluff, Hot Springs and Conway. AVLE (Arkansas Volunteer Lawyers for the Elderly) is a joint venture of the Young Lawyers Section of the Arkansas Bar Association and the five other Legal Services Programs in Arkansas. Three of these Legal Services Programs also have local pro bono systems for the non-elderly

poor.

Occurrences that would have once been unusual seem ordinary in CALS' Pro Bono Systems today. It is not unusual that a prominent attorney is doing an IFP spouse abuse divorce, and our pro bono coordinators hardly blink an eye at referring a client who is blind, deaf or

severely mentally ill.

Rule 6.1 of the Arkan5<1s Model Rules of Professional Conduct include pro bono or reduced fee services to the poor and financial contributions to Legal Services Programs as two methods through which attorneys can fulfill their "pro bono publico" obligation. Yet, I seldom hear a pro bono attorney mention this ethical nile as the reason for helping poor clients.

Instead, I I hear or read comments from private attorneys like the following excerpt in a letter from a pro bono attorney.

"Representing Mrs. Jones in this matter has been a very gratifying experience for me. She has been paying on her home for almost 17 years and it would be a shame if she had lost it to a tax title speculator. Even with the new escrow payment her total payment will only be $89 a month. She could not find housing anywhere in Little Rock for so small a sum. I want to thank you for sending this deserving person to me for legal assistance."

As is true with the practice of law in general, pro bono representation can also be very disappointing and frustrating.

Not a few attorneys have accepted pro bono cases, only to have the clients change their minds. This year one of our best pm bono attorneys spent many hours in several court hearings securing protection, child custody, and support for a mother who had been severely abused. Prior to the final hearing, the client reconciled with her husband.

But pro bono lawyers do make a difference. There are hundreds and hundreds of lmv-income battered women and their children who have been helped, free of charge, by pro bono attorneys.

Attorneys with experience in areas such as insurance, SS!, Wills, housing, consumer,

and family are able to respond promptly to the typical kind of pro bono referraL Further, there are occasionally atypical cases in which a pro bono attorney can utilize her specialized expertise.

Pro bono attorneys have helped clients in ways outside of their traditional roles.

They have participated in interviewing the low-income elderly at community centers. A law professor assisted CALS' staff attorneys on two cases before the Supreme Court of Arkansas. There are more and more corporate attorneys who assist clients through pro bono representation or the annual financial contribution.

Pro Bono can be rewarding, exciting, frustrating, and even dull. Attorneys have been doing it since the establishment of our legal system, and organized pro bono is now a fixture in Arkansas. In the early days of VOCA LS, a pro bono attorney was representing a woman in a domestic dispute. The opposing attorney was perplexed because the pro bono attorney never practiced in that area of the law ilnd the client was financially destitute. The opposing attorney wanted to know if the client was the maid of the pro bono attorney, or whatever. The pro bono attorney simply smiled. Today the odds are that the opposing attorney ,....ould be participating also in organized pro bono.

I salute the private bar in Arkansas for its generosity to the poor: the pro bono attorneys, the bar associations, and the many attorneys who have served 011 the Boards of Legal Services Programs.

During the past 8 years the Legal Services Programs in our state have been battered by severe budget cuts and inflation. One of the primary reasons we start the 1990's with some degree of strength and hope is the pro bono and financial support of the private bar.

UNIVERSITY OF ARKANSAS AT FAYETTVILLE SCHOOL OF LAW

By Paula Casey, Professor of Law Groundbreaking ceremonies for

the new UALR Law School building were held on ovember 15, 1989.

Speakers for the ceremony included UALR Chancellor James H. Young, University of Arkansas Interim

President Gary Chamberlin, University of Arkansas Board of Trustees

Chairman Sykes Harris, UALR Board of Visitors Chairman Herschel Friday,

will be published in The George Washington JOllmol of In/emotional Law and Ecollomics.

Professor Robert R. Wright attended the Fall Council Meeting of the American

Bar Association's

General Practice Section in Naples, Florida, in October. Professor Wright's term on the Council began in August, 1989, and will continue until August, 1993. He is also Chairman of the General Practice Section's Publications Board. Professor Wright attended the Arkansas Bar Association's House of

Delegates meeting in Fayetteville in October as a tenure delegate.

Visiting Professor John M.A. DiPippa spoke to the Federal Practice Committee for the Eastern and Western Districts of Arkansas at the

Chief Justice Jack Holt, Jr. of the Arkansas Supreme Court, and UALR Law School Acting Dean Fenton Adams. Also participating in the ceremony were State Senator Max Howell; State Representative Mike Wilson; Buddy Raines, President of the UALR Law Schuol AÂťociatiun; and Carolyn Witherspoon, President of the Pulaski County Bar Association.

Following the groundbreaking ceremony, the UALR Law School Association and the Pulaski County

Eighth Circuit Judicial Conference on "The Future of Alternative Dispute Resolution." Professor DiPippa also spoke to the Arkansas Municipal Judges Association about recent

Bar Association co-hosted a reception

symposium on law and reLigion in St. Paul, Minnesota, in October. Professor

at the Villa Marre. The UALR Law School will move to the new building in the Fall of 1991.

decisions on criminal procedure. In

October, Professor DiPippa delivered three presentations at the Legal

Services Statewide Conference: (1) The Lawyers' Professional Responsibility to the Impaired Client; (2) Ethics for on-lawyers; (3) Ethical Issues in Legal Services Practice.

Professor

DiPippa

attended

a

DiPippa is currently working with the UCA Honors College to develop a spea kers series.

FACULTY NEWS: Dean Fenton Adams and Professors Kenneth S. Gould, Andrew J. McClurg, Robert R. Wright, and L. Scott Stafford attended the Association of American Law Schools Conference on Faculty Recruitment in Washington, D.C, in November.

Professor Arthur G. Murphey's article, "Consequential Damages in Contracts for the International Sale of

Goods and the Legacy of Hadley", 4 8

ARKANSAS

Professor Kenneth S. Gould attended a Roundtable Conference sponsored by the U.s. Trademark Association in Dallas, Texas, in October.

University School of Law in 1981 and a B.A. from Tennessee State University

in 1978. She was associated with Miller, Canfield, Paddock and Stone in Detroit, Michigan, from 1981-82, and clerked in the Federal District Court for the Northern District of Alabama from 1982-83. In 1983, she began a clerkship with Judge Richard S. Arnold of the U.s. Court of Appeals for the Eighth Circuit. She left that clerkship in 1985 to assume her duties as Assistant .S. Attorney for the Eastern

District

of

ew

York.

Professor Hill is teaching Criminal Law and Trial Advocacy.

Professor Hill attended a meeting of the Northeast Corridor of Black Women Law Professors in New York City in October.

Professor Eugene Mullins attended the Fourth Annual Workers Compensation Seminar in Little Rock in

ovember.

Associate Dean Paula Casey has taken a leave of absence from the Law School to work as Chief Counsel for United States Senator Dale Bumpers

in Washington, D.C Professor Tanya Hill and Associate Dean Paula Casey attended a conference on minorities in the legal

profession sponsored by the Association of American Law Schools in

Washington, D.C Professor Ranko Shiraki Oliver will be a visiting professor at St. Louis University in St. Louis, Missouri, during the Spring 1990 semester.

STUDENT NEWS

Professor Dennis Hansen attended

Phi Alpha Delta Law Fraternity sponsored "Immunity Day" at the Law Schuul. Stuuents who placed a nonperishable food item on the table

the American Society for Legal

in front of them during class were

History meeting in San Francisco,

immunized from being called on to answer questions by the professor. At the end of each class, PAD members collected the food items, which were donated to a local food bank.

California, in October.

Professor Tanya Hill has joined the UALR Law School faculty. Professor Hill received a J.D. from Howard

LAWYER

JANUARY

1990

Keith .Fuller, a student at the University of Missouri at Columbia School of Law and regional coordinator for the Black American Law Students Association, visited with students at UALR Law School to assist them in organizing a BALSA chapter. Rodney Slater, President of the Harold Flowers Law Society, and Lisa Mathis, Chair of the Young Lawyers Committee of the Harold Flowers Law Society, also attended the tneeting.

UNIVERSITY OF ARKANSAS AT LITTLE ROCK SCHOOL OF LAW

By Dean J. W. Looney FACULTY ACTIVITIES Dona Id Ped ersen was selected for the Arkansas Alumni Association Distinguished Service Award for Public Service. This award is given each year to the campus faculty member who best exemplifies the University's commitment to its public service mission.

Robert A. Leflar's review of Across State Lilies: Applyillg tile COllflict of Laws to YOllr Practice by Robert A. Sedler appeared in Tile COli/pleat Lawyer.

Phillip Norvell spoke at a Mineral Law Seminar in Lexington, Kentucky on "Plugging Obligations: Operator Liability to State and Third Parties."

He also spoke at the MidContinent meeting

of

the

Association

of

American Petroleulll Landmen on "Recent Developments in Oil and Cas Law in Arkansas and Kansas."

Carlton Bailey and john Watkins served as trainers on Arkansas Civil Procedure for the Arkansas Legal Services Support Center.

Howard Brill, Chauncey Brummer, Ray Guzman, Mary Beth Matthews, and john Watkins were speakers at the Arkansas judicial Conference fall program in Springdale.

Charles Carnes, john Copeland and jake Looney spoke at the annual meeting of the American Agricultural Law Association in San Francisco.

Donald Pedersen assumed duties as

President of the AALA at the meeting data protection law was published in and was responsible for this year,s Recht rier Datfl}/VerarlJeitllllg. program.

Court of Appeals Visit Howard Brill and john Watkins The Arkansas Court of Appeals spoke at the Third judicial District heard oral arguments in two cases at Trial Practice Seminar in Fort Smith. the Law School during its annual fall jake Looney was honored at semester visit. judges Donald Corbin, Hornecoming at Southern Arkansas John jennings, James Cooper, judith University as a recipient of the 1989 Rogers, and Melvin Mayfield heard Distinguished Alumni Award. arguments in one case by john Everett Richard Richards, co-authored of Prairie Grove and james McCord of supplement to Employment Discrim- Fayetteville and in the second case by illatiofl (3-volume treatise) has been Richard Roachell of Little Rock and released by Little Brown and jerry G. james of Little Rock. company.

Hotz Lecture Features David Malone's book Hattie a/ld Soviet Lawyer Hiley: All Arkansas Tour has been The Hartman Hotz Lecture Series published by the University of III Law and Liberal Arts sponsored a Arkansas Press. visit to the University by Dr. Mikhail Robert B Leflar has an article in Galyatin, a research associate at the the Hiroshima Bar Association Institute of State and Law in Moscmy Bulletin on "A Comparison of Medical Dr. Galyatin, an expert in environMalpractice Litigation in America and mental law and land use, recently japan." He spoke on "Citizens Rights completed a book on land and lavv in on Health Care Issues in japan and the the United States. He is currently in U.s." to the Altrusa Club of Fayette- the United States as a Zuckerman ville.

Fellow at Columbia University. His Mort Gitelman presented a topic was "Soviet Society, State and program on "Rights and Responsi- Law in Transition." He also spoke at bilities of Vo-Tech Teachers" for the the law school on a comparison of Northwest Arkansas Vo-Tech School Soviet-American environmental and in Springdale. land use law.

Chris Kelley spoke to the Student Bar Association Arkansas chapter of the American Faculty Auction Registry of Professional Animal The Student Bar Association scientists on "Liability Issues Facing sponsored a third sllccessful "faculty" Animal Scientists." His feature on auction to raise money for a local "Post-Harper Decision Finds Implied charity. This year's auction of items Cause of Action Under Age Credit Act donated by the faculty raised nearly of 1987" appeared in AgriCIIltllra!路 $3,000 for Our Farm (homc for abused Law Update. and underprivileged children).

Mark Killenbeck presented a The SBA startcd this activity three "Supreme Court Update" for the years ago as a means of providing Attorney General's office. student-faculty cooperation in a Ray Guzman has completed a charitable undertaking. series of videotapes for national Homecoming Activities distribution designed to assist in The Student Bar Association preparing new graduates for the bar coordinated activities at an Open examination. He will continue to House on Homecoming weekend. lecture at bar revie\路v courses Alumni and friends of the law school throughout the country on Criminal were invited for tours of the Robert A. Law, Torts, Evidence and Examination Leflar Law Center and for free hot Techniques. dogs preceding the Arkansas v. Baylor Paul Schwartz was a guest scholar football game. Other activities at the Goethe-University's Institute of included a CLE program on Friday Civil, Labor and Economic Law, afternoon featuring presentations by Frankfurt-am-Main: West Germany. Chauncey Brummer and janet Flaccus His article "The Computer in German of the law faculty and Fayetteville and American Constitutional Law: lawyer, Marcia Mcivor, and a visit by Towards an American Right of the Law School's Committee of the In forma tiona I Self-Determ ina tion" Arkansas Bar Association. Ark8nsas appears in the American Journal of Bar Association president Mac Glover Comparative Law. A second article and former presidents, Wayne Boyce relating to current trends in American and john Stroud, conducted a panel

discussion at the law school for the

students on "What to Expect After La w School."

ARKANSAS INSTITUTE FOR CONTINUING LEGAL EDUCATIO

By Deb Garrison

Time -

arguably the lawyer's

rnost valuable commodity.

At AICLE, we know that "time is money" for the lawyers we serve.

Therefore, we have established a number of time-saving policies and services to help our customers manage their time more efficiently.

One time-saving service we offer

is the Video Replay Network. This netwurk give~ attorneys who are located in the more remote areas of

the state the option of attending video-taped replays of live programs close to home.

This service significantly reduces travel time and expense.

Another way we help Arkansas

lawyers gain control of their time is by strongly encouraging our program planners to schedule six hours of CLE programming in all one-day seminars.

This policy saves our customers not

only time, but also money.

And finally, one of the best but perhaps lesser-known time management services we offer is the Law

Office Videotape Series. In 1987, AICLE's Board of Directors decided that AICLE could better serve its customers by marketing services and

products in the areas of client education and law office staff education. As a result of this decision, AICLE now offers a series of low-cost videotapes designed to assist lawyers with the time-consuming tasks of

training law office staff and educating clients.

Titles now available in the client education series include: "About Your

Divorce" and "Preparing for Your Deposition." A third tape aimed at law office staff training is entitled "Law Office Confidentiality."

"About Your Divorce" is a tape aimed at providing basic information and introducing major issues relating to a client's divorce. This client education tape is 20 minutes long and

is designed to be shown to the new 5 0

ARKANSAS

client during the first consultation. A booklet outlining the specifics of

minutes. The tapes are backed by a full guarantee: if purchasers are not

Arkansas divorce law is included with each tape.

In most instances, the client has never been through a divorce ~ or into a courtroom. "In fact, it's

satisfied, they can return the tape for a full refund.

Preview of Upcoming Programs The winter line-up of CLE

probably the first time they've talked to an attorney, and they're scared to

death," according to Sam Hilburn of Hilburn, Calhoon, Harper & Pruniski in orth Little Rock. This tape is a "useful tool to help clients relax. It also jogs questions that they might not otherwise ask," says Hilburn.

The tape makes the client aware of areas in which decisions will have to

be made, such as property division, maintenance or alimony, and custody and visitation if children are involved.

The tape also addresses the inherent emotional aspects of divorce and the

benefits of finding a qualified counselor to assist with these kinds of issues.

Hilburn, who has been using this tape for several years, extols it as a

way of giving clients knowledge, "I feel that the more informed my clients are, the better they deal with the situation. The tape is a good way of sharing information with clients."

The second tape in the series,

"Preparing for Your Deposition" explains the basic concept of a deposition, demonstrates typical

program includes some exciting new programs in addition to the traditional

offerings.

The 1990 Mid-Year Meeting which will be held January 19 - 20 at the Excelsior Hotel in Little Rock recaptures the spirit of Mid-Year Meetings past by focusing on recent case developments, yet this year's program

features an expanded line-up of topics geared toward the needs of the general practitioner.

The theme,

General Practice Update, is at the heart of every activity during this oneday CLE program. Registration is limited, so make plans now to attend

this program that's tailor-made for the general practitioner.

The Fifth District Tri,d Practice Seminar will be held on January 26 at

the King's Inn in El Dorado. This oneday seminar will provide attorneys

who practice in the Fifth Court of Appeals District with an update on significant current developments in the law and an opportunity to meet

with fellow lawyers and members of the Judiciary in the District.

The 1990 Agricultural Law Institute will be presented twice: once for

East

Arkansas

Lawyers

on

deposition situations, and points out

February 9 in Jonesboro and once for

potential pitfalls a witness may

West Arkansas practitioners on

encounter. It is designed to be shown to a client prior to his deposition. This tape uses proven instructional design techniques such as audience involvement, repetition and demonstration

February 23 at the Russellville Holiday Inn. The faculty for each

examples to convey the dos and don'ts of being deposed.

The third tape, "Law Office Confidentiality" covers the importance of maintaining client confiden-

tiality. It includes discussion of phone contact and handling of files and documents. "We show this tape to all new employees. They are required to watch it before they do any work," says Charles Embry, Jr. of Eaton and Embry in Little Rock. According to Embry, the tape is an efficient way of training law office staff, "it's a good,

basic introductory guide to confidentiality for lay staff."

All three tapes are available in VHS format. The two client education tapes are each 20 minutes in length

and cost $95 each. "Law Office Confidentiality" costs $55 and runs 10

LAWYER

JANUARY

1990

program will address issues unique to each region, as well as a number of common concerns. Each seminar will present a wide variety of topics, including financing considerations,

environmental

problems,

ASCS

practice, debt restructuring and

financial negotiations with the FLB and FmHA. An in-depth panel discussion will feature a variety of troublesome areas such as leases of agricultural land, water rights, and underground storage.

Join Overton A. Currie, partner in

the law firm of Smith, Currie and Hancock and renowned lecturer on construction law, on February 16 at

the Little Rock Hilton for the First Arkansas Construction Law Seminar.

Currie will discuss the myriad legal issues involved in the construction business. This course is designed for the entire construction industry owners, top executives, and other

employees.

The defense hasn't rested in over 25 Yl s!

The CNA Insurance Companies and Rather, Beyer & Harper have been protecting Arkansas lawyers continuously for 25 years. The long record of our professional and business liability program reflects a commitment to lawyers for the long term. Assets of $22.9 billion, plus a surplus of $2.7 billion, give CNA the financial strength required to continue our program.

Our commitment is to provide quality protection. Quality means consistency-staying in the market as we've done, to avoid gaps in coverage.

Quality also means using our underwriting experience to arrive at a fair and honest premium.

Our program provides expert claims han-

dling which includes vigorously resisting nonmeritorious suits and closing a high percentage of suits without payment.

You can even earn premium savings based on the size of your firm, area of practice, claims experience or continuing legal education.

Learn more about how our long-term commitment to your protection can help you.

Contact the administrator: Rather, Beyer & Harper A Division of Rebsamen Insurance, Inc. P.O. Box 3398 Little Rock, Arkansas 72203-3398 664-8791

Ir-~I Rather, Beyer & Harper , I A Division of Rebsamen Insurance, Inc.

CNA

For AlJ the Commitments You Make

Coverage for this program is provided by Continental Casualty Company, one of the CNA Insurance CompaniesJCNA PlazaiChicago.IL 60685

SPECIAL FEATURES • A handy guide 10 county, state and federal offices including departments of the U.S. and Arkansas state government.

• A complete digest of courts containing terms. rules and jurisdiction of federal, courts with names, state and local addresses and telephone numbers of court personnel.

• A complete roster of attorneys and law firms in Arkansas with addresses and telephone numbers.

• Professional associations including officers. committees end sections of the Arkansas Bar Association.

• Professional and biographical data of some of the law firms and individual practitioners in Arkansas.

A COMPLETE DIRECTORY 1. Attorneys Roster

by County & City 2. Attorneys Alphabetical

by State 3. Firms Alphabetical

by State

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