CLAIM NO. E416520

CHARLES ADAMS, EMPLOYEE, CLAIMANT v. SYNDER CONSTRUCTION, EMPLOYER, RESPONDENT, and HARTFORD INSURANCE, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 25, 1997

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by Robert Buckalew, Attorney at Law, Little Rock, Arkansas.

Respondents represented by William Frye, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The Administrative Law Judge in this case held that the claimant sustained a compensable injury, that he is entitled to temporary total disability benefits from October 13, 1994, to a date yet to be determined, and that he is entitled to all reasonably necessary medical expenses related to his compensable injury. Based on our de novo review of the record, we find that the claimant presented credible evidence that he sustained a compensable injury on the date in question. Accordingly, we affirm the decision of the Administrative Law Judge.

[3] The evidence presented in this case indicated that on July 9, 1994, the claimant was employed by the respondent doing labor as a roofer. On that date, the claimant was in the process of measuring a roof to give the owner, Clara Woods, an estimate. The claimant testified that as he was walking from the main roof of the house onto the carport roof he fell through the roof. Testimony indicated that the claimant fell through the roof to his waist, at which point he caught himself with his arms. The claimant testified that he was able to extricate himself from the hole, but he immediately experienced “severe back pain in the lower part of [his] back.” The claimant then called the respondent’s office and reported his injury.

[4] Julie Adams, the claimant’s wife (his girlfriend at the time of the injury), corroborated the claimant’s account of what occurred on July 9, 1994. Mrs. Adams testified that she was sitting in the claimant’s truck while he was measuring the roof, and that she had a clear view of him. She testified that as she was watching the claimant she saw him fall through the roof all the way to his waist. Mrs. Adams testified that she exited the truck and ran over to see if he was okay. Mrs. Adams indicated that the claimant’s back was hurting at that time, and the claimant then called the respondent’s office to inform them of his injury.

[5] While the respondent presented testimony that the hole in the roof was not large enough for the claimant to fall through, the claimant, Larry Bailey and photographs introduced into evidence clearly rebutted the respondent’s allegation. The photographs in question clearly show the hole in the roof as measuring 15″ by 20″. Both the claimant and Larry Bailey testified that the hole as shown in the pictures is the same size as it was at the time of the claimant’s injury. While the pictures were taken a few months after the claimant’s injury, we find the pictures and the claimant’s testimony credible in regard to the size of the hole.

[6] We also find that Mrs. Woods’ testimony as to the size of the hole is entitled to little weight. When Mrs. Woods was informed of the accident, her husband sent her to the home to check on the hole. Mrs. Woods admitted in her testimony that she “was concerned” about the possibility of a liability claim being filed against her and her husband. Because Mrs. Woods had an economic incentive to underestimate the size of the hole, as did the respondent’s other witness, we find her testimony is entitled to little weight.

[7] The testimony and exhibits in this case all indicate that the claimant was consistent in reporting how his injury occurred. As pointed out above, after the injury the claimant immediately informed the respondent of his accident. Doris Short, the daughter of the owners of Snyder Construction (respondent), testified that the claimant reported his injury on July 9, 1994, the day of the accident. Mildred Snyder, co-owner of Snyder Construction, testified that she signed the first report form shortly after the accident which indicates that the claimant fell through the roof on the day in question. All of the medical exhibits in this case also show that the claimant consistently informed the doctors that his back injury occurred when he fell through the hole. Furthermore, on October 12, 1995, Dr. Ronald N. Williams, the claimant’s treating neurologist, stated in a letter that “[claimant’s] problems are consistent with such an injury and should be considered the principle cause of his physical problems.”

[8] Because the claimant’s injury occurred after July 1, 1993, Act 796 of 1993 is applicable to the facts of this case. Under Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996), the claimant must prove by a preponderance of the evidence that he sustained an accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services. . . .” That subsection goes on to state that an “injury is `accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence.” In order for the injury to be compensable it “must be established by medical evidence, supported by `objective findings.'” Ark. Code Ann. § 11-9-102 (5)(D) (Repl. 1996).

[9] Although the respondent contends that the claimant did not sustain an on-the-job injury, the evidence clearly indicates that the claimant sustained a compensable injury while in the course of his employment by a specific incident identifiable by time and place of occurrence. We believe that the claimant presented credible testimony as to how and when he sustained his back injury, and the claimant’s testimony was corroborated by eye witnesses. The weight and credibility of the witnesses testimony are exclusively within the province of the Commission, and the Commission resolves any conflict in the testimony. Wade v. Mr. C.Cavenaughs, 298 Ark. 363, 768 S.W.2d 521 (1989). The medical evidence also shows that the claimant was consistent in reporting how his back injury occurred.

[10] Although not disputed by the respondent, the medical evidence shows objective findings which support the claimant’s compensable injury. The claimant was sent to Dr. Boyce West just two days after the injury. X-rays and other medical evidence indicated that the claimant had a “left paracentral herniated nucleus pulposus at L5 with very slight neural impingement.” Later medical reports by Dr. Williams, the claimant’s neurologist, indicated the claimant had a “ruptured disk on the left at L5-S1.” Dr. Williams went on to opine that the claimant would have a seven percent permanent impairment rating if the disc is “non-treated.” The medical reports also indicate that the claimant remained off work from October 13, 1994, until the time of the hearing below, and that he was unable to work during this period of evaluation and treatment. Therefore, we hold that the claimant remained within his healing period from October 13, 1994, until a date yet to be determined, and the claimant is entitled to temporary total disability benefits for that period. See, Palazzolo v. NelmsChevrolet, 46 Ark. App. 130, 877 S.W.2d 938 (1994).

[11] We hold that the claimant proved he sustained a compensable injury on July 9, 1994, that he is entitled to temporary total disability benefits from October 13, 1994, until a date yet to be determined, and that he is entitled to all reasonably necessary medical treatment related to his compensable injury. Accordingly, we affirm the decision of the Administrative Law Judge.

[12] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).

[13] For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996).

[14] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[15] Commissioner Wilson dissents.

[16] DISSENTING OPINION
[17] I respectfully dissent from the majority’s opinion finding that the claimant sustained a compensable injury. Based upon my de novo review of the entire record, I find that claimant has failed to prove that he sustained a compensable injury by the credible evidence of record.

[18] Claimant contends that on July 9, 1994 he sustained an injury to his back when he fell through a hole while measuring a roof during the course and scope of his employment. Respondent contends that claimant did not sustain an on-the-job injury and continued to work for respondent through October 11, 1994 when he voluntarily quit work to work for another contractor.

[19] Claimant testified that while measuring a roof which belonged to Claire Woods he fell through a hole on the carport roof. Claimant’s wife testified that she was present when the accident occurred and she observed her husband (at the time of her injury, her boyfriend) fall approximately waist deep through a roof. In addition, claimant’s friend, Larry Bailey, testified that on the evening of the accident he accompanied claimant and claimant’s wife to the house and he observed the hole which claimant fell through. Claimant submitted photographs of a hole which measured approximately 15″ by 20″. The photographs were taken in November of 1994, four months after the accident allegedly occurred.

[20] Claire Woods, the home owner, testified on behalf of respondent. Ms. Woods testified that shortly after learning of the incident she went to her home and inspected the carport. Ms. Woods explained that the only hole she saw was approximately 12″ long and 4″ wide. Ms. Woods explained that the hole she observed was a hole that was there at the time she and her husband bought the property and that it was not large enough for a person to fall through.

[21] Doris Short, the daughter of the Snyders who own respondent, Snyder Roofing Construction, testified on behalf of respondent. Ms. Short testified that on the day of the alleged incident claimant called the office and stated that he stepped through a hole in the roof. Ms. Short went to the site of the accident and observed the roof on the day the accident allegedly occurred. According to Ms. Short’s testimony, the only hole she saw on the roof was an old hole which measured approximately 4″ x 12-15″ long. She testified that hole was old, that there was no fresh plywood broken, but only old shingles and exposed old plywood. She further testified that the hole was not big enough for the claimant to have fallen through.

[22] Clearly, there is conflicting testimony regarding whether there was a hole on the roof large enough for claimant to have fallen through. The testimony of claimant and claimant’s witnesses clearly contradicts the testimony of respondent and respondent’s witnesses. Thus, the resolution of this matter turns on which witnesses are more credible.

[23] I am troubled by the fact that claimant’s testimony is riddled with numerous facts and details which I find incredible to believe. At the time of the hearing, claimant weighed 265 lbs. and had a waist measurement of 42″. However, at the time of the alleged incident, claimant contends he only weighed 220 lbs. with a waist measurement of 36-38″. However, claimant’s own witnesses failed to corroborate this evidence. Claimant’s wife, Larry Bailey, as well as respondent’s witness, Doris Short, all testified that claimant was the same size at the time of the alleged incident as he was at the hearing. Apparently, claimant felt it necessary to fabricate a story that he was smaller at the time of the incident so that one could believe that he could fit into a small hole which only measured, according to claimant’s testimony and photographs, approximately 20″ by 15-16″. If, in fact, claimant had fallen through such a hole, I would expect claimant to have bruises and scratches along his waist line. However, there is no such evidence found in the medical records nor in the testimony of his wife.

[24] Furthermore, claimant testified that after the incident he was placed on light duty. However, there was no evidence corroborating claimant’s testimony. There was no medical documentation that claimant was placed on light duty. Moreover, Doris Short testified that claimant performed the same jobs both prior to and after the alleged incident. She further testified that she did not change claimant to light duty.

[25] It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). I find claimant’s testimony and that of claimant’s witnesses to lack credibility. Their testimony is simply too farfetched to be believed. In my opinion, if claimant were telling the truth about his alleged incident, claimant would have no reason to fabricate evidence regarding his weight and waist measurement and his ability to work after the injury. Therefore, based upon my de novo review of the entire record, and without giving the benefit of the doubt to either party, I find that claimant has failed to prove by a preponderance of the credible evidence of record that he sustained a compensable injury. Therefore, I respectfully dissent from the majority opinion.

[26] MIKE WILSON, Commissioner