                               Cite as 2017 Ark. App. 180


                ARKANSAS COURT OF APPEALS

                                      DIVISION I
                                     No.CV-16-679

CLARA C. GAITHER                              Opinion Delivered:   March 15, 2017
                              APPELLANT
                                              APPEAL FROM THE ARKANSAS
V.                                            WORKERS’ COMPENSATION
                                              COMMISSION [NO. G205762]

ARKANSAS FOUNDATION FOR
MEDICAL CARE AND SEDGWICK
CLAIMS MANAGEMENT SERVICES,
INC.
                     APPELLEES AFFIRMED


                           KENNETH S. HIXSON, Judge

       Appellant Clara C. Gaither worked as a receptionist for appellee Arkansas Foundation

for Medical Care. Ms. Gaither brought a workers’ compensation claim alleging that

she developed chronic headaches, anxiety, and depression as a result of a racist work

environment while working for her employer.          The administrative law judge denied

Ms. Gaither’s claim, finding that she failed to prove compensability for her alleged mental

injuries.   The Workers’ Compensation Commission affirmed and adopted the ALJ’s

decision.

       Ms. Gaither now appeals from the Commission’s decision denying compensability.

Her sole argument on appeal is that Arkansas Code Annotated section 11-9-113 (Repl.

2012), which governs compensability for mental injuries, is unconstitutional because it

violates the Equal Protection Clause of the Fourteenth Amendment as well as Article 2,
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section 3, of the Arkansas Constitution.         Because Ms. Gaither failed to raise her

constitutional argument to either the ALJ or the Commission, we must affirm.

      Ms. Gaither testified that she developed chronic headaches as a result of a harsh and

racist work environment. She sought treatment from Dr. Stanley Burns and Dr. Krameelah

Banks, a licensed psychologist. The medical reports from these doctors reflected that

Ms. Gaither suffered from anxiety disorder, severe depression, and paranoid ideation, for

which she was prescribed medication. In her testimony, Ms. Gaither admitted that she had

not suffered any physical injury, nor was she the victim of a crime of violence in the

workplace.

      The ALJ’s opinion, which was affirmed and adopted by the Commission, denied

compensability pursuant to Arkansas Code Annotated section 11-9-113(a)(1), which

provides:

      A mental injury or illness is not a compensable injury unless it is caused by physical
      injury to the employee’s body, and shall not be considered an injury arising out of
      and in the course of employment or compensable unless it is demonstrated by a
      preponderance of the evidence; provided, however, that this physical injury
      limitation shall not apply to any victim of a crime of violence.

The ALJ and the Commission made the following findings and conclusions:

      Th[e] evidence establishes by a preponderance of the evidence that the claimant
      suffers from symptoms of a mental injury or illness. However, during the hearing,
      the claimant readily admitted that she did not suffer any type of physical injury while
      working for the respondent-employer. Nor was any type of evidence presented
      demonstrating that the claimant was the victim of a crime of violence in the
      workplace. Unfortunately, under these circumstances, the claimant cannot meet her
      burden of proof for a compensable mental injury. Therefore, based on the evidence
      presented in this case, I am compelled to find that the claimant has failed to establish




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         by a preponderance of the evidence that she suffered a mental injury under the
         provisions of the Arkansas Workers’ Compensation Act.

         In this appeal, Ms. Gaither challenges the constitutionality of Arkansas Code

Annotated section 11-9-113, and specifically argues that the statute is unconstitutional

because it arbitrarily treats similarly-situated persons differently. Ms. Gaither contends that

there is no rational basis for treating mental injuries differently than physical injuries. She

asserts that the physical-injury requirement for proving a compensable mental injury violates

equal protection.

         We are unable to reach the merits of Ms. Gaither’s constitutional claim. This is

because, by Ms. Gaither’s own admission, she failed to raise the argument in the proceedings

below.

         Our supreme court has held that, although an administrative agency does not have

the authority to declare a statute unconstitutional, a constitutional issue must nonetheless be

raised before the administrative agency to preserve the issue for appeal. AT&T Commc’ns of

the SW., Inc. v. Ark. Pub. Serv. Comm’n, 344 Ark. 188, 40 S.W.3d 273 (2001). This

principle applies to appeals from the Workers’ Compensation Commission.               Shaw v.

Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991); Hamilton v. Jeffrey Stone

Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982). In refusing to address a constitutional issue

raised for the first time on appeal in AT&T Communications, the supreme court adopted our

reasoning in Hamilton:

               Even though the Commission may not have the authority to declare statutes
         unconstitutional, we believe such issues should first be raised at the Administrative
         Law Judge or Commission level. Constitutional questions often require an
         exhaustive analysis which is best accomplished by an adversary proceeding.
         Obviously this can be done only at the hearing level. Requiring these constitutional
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        issues to be considered by the Commission, we can be assured that such issues will
        be thoroughly developed before we are asked to rule on a statute’s validity.

344 Ark. at 197, 40 S.W.3d at 279 (quoting Hamilton, 6 Ark. App. At 335, 641 S.W.2d at

725).

        Our law is well settled that a constitutional argument must first be raised to the

Workers’ Compensation Commission in order to preserve the argument for review.

Because Ms. Gaither failed to raise her equal-protection argument to the Commission, she

is precluded from arguing that issue on appeal to this court.

        Affirmed.

        GLOVER and BROWN, JJ., agree.

        Clara C. Gaither, pro se appellant.

        Munson, Rowlett, Moore & Boone, P.A., by: JB Smiiley Jr., for appellees.




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