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COOPER v. HILAND DAIRY2/23/2000
he incident to his supervisor, and stated that he "was sure he did say something about it."
Spradling, who was plant supervisor for Hiland Dairy for twelve years, testified that he and Cooper had a good working relationship for twelve years and that Cooper was responsible for everything as supervisor at night. Spradling further opined that Cooper was trusted at the business and that he had never known him to deal with him dishonestly. Significantly, although Spradling testified that he remembered Cooper reporting the injury and stating that it occurred while stretching, he did not remember if
Cooper told him about feeling stiffness in his back after climbing down from the hopper, but did not deny that he did so.
With regard to the issue of credibility, the Commission is limited to reviewing the record, as are we, and thus the demeanor of the witnesses is not an issue. In this instance, we have Cooper's testimony that is entirely consistent with the medical records, and is uncontradicted by his supervisor, who testified favorably about Cooper's trustworthiness. We do not believe from the record before us that reasonable minds could reach the Commission's conclusion to deny this man benefits based solely on the basis of credibility, where there is no real conflicting evidence or testimony in the record.
Because we are reversing and remanding for an award of benefits, it is not necessary for us to address Cooper's constitutional issue. However, we note that the issue has not been preserved for our review because it was not raised in any fashion to the Commission. We recognize that it is unrealistic to expect a claimant to raise this issue to the ALJ, or to the Commission if the claimant has won at the ALJ level and the employer appeals the award. However, a claimant must first raise a constitutional issue to the Commission and obtain a ruling in order to preserve the issue for appellate review, even where the Commission has reversed the ALJ's award of benefits, as occurred in Cooper's case. We have said that this can be done by filing a motion for reconsideration. See Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). Reversed and remanded for an award of benefits.
ROBBINS, C.J., and STROUD, J., agree.
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