CLAIM NO. E604487
DONALD E. ANDERSON, EMPLOYEE, CLAIMANT v. FLOYD TRUCKING, EMPLOYER, RESPONDENT and AMERICAN INTERSTATE INSURANCE CO., CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 11, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by CHARLES R. PADGHAM, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed September 24, 1996 finding that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury. Based upon our de novo review of the entire evidence, we find that claimant has failed to prove by the credible evidence of record that he sustained a compensable injury.
[3] Claimant contends that on February 29, 1996 he sustained an injury to his lower back when he fell off the truck as he was loading the tarpaulins. Claimant stated that when he fell he landed on his feet but he felt something rip in his back. According to claimant’s testimony he called Judy Floyd, one of the owners of respondent and advised her of the incident. Claimant further testified that he called Ricky Floyd while in route home stating that he had injured himself and would be unable to carry the next load. Claimant took off work for several days and returned to work on March 6, 1996. According to claimant, he saw Dr. Mark Hulsey on March 11, 1996, due to the pain he was experiencing in his back.
[4] Claimant’s wife was also called to testify. She testified that she had accompanied the claimant on the trip when claimant fell off the truck. According to claimant’s wife she was in the sleeper of the truck when the incident occurred so she did not actually see anything happen. However, she testified that claimant advised her when he got into the truck that he had fallen off and that he was in pain. Claimant’s wife further testified that she recalls the claimant calling his employer when they arrived at Waco but she was not present to hear the telephone conversation. Claimant’s wife further testified that once they arrived back at the truck yard she did hear claimant advise Ricky Floyd that he had injured his back when he fell off the truck.
[5] Both Judy Floyd and Ricky Floyd testified for respondent. Claimant objected to the testimony of Ricky Floyd stating that his name was not identified in the pre-hearing order. However, respondent supplied a supplemental pre-hearing questionnaire on July 23, 1993, after the pre-hearing order had been entered. The pre-hearing order specifically provides that additional witnesses may be named so long as they are provided sufficiently in advance of the hearing. Since Ricky Floyd’s name was provided on July 23, 1993, at least three weeks prior to the hearing, the Administrative Law Judge found that the name was timely disclosed and allowed Mr. Floyd to testify. In our opinion, the decision of the Administrative Law Judge allowing Mr. Floyd to testify was the correct and proper decision.
[6] Both Judy Floyd and Ricky Floyd testified that when they hired claimant he advised them he had a bad back. Mrs. Floyd testified that claimant would occasionally miss work prior to the alleged incident in February of 1996 claiming that his back was acting up again. According to the testimony of both Judy Floyd and Ricky Floyd this is exactly what claimant advised them when he telephoned on February 29, 1996. Both Judy Floyd and Ricky Floyd testified that claimant never advised him that he fell off the truck and injured his back while in their employ. Judy Floyd further testified that if claimant had advised her that he had fallen off the truck she would have asked him if he needed to go to the doctor. Finally, Mrs. Floyd stated that the first time she was aware that the claimant was claiming that he injured his back on their job is when she received a telephone call from Dr. Hulsey’s office asking if the treatment would be covered under workers’ compensation.
[7] Ricky Floyd testified that at no time did claimant ever advise him that he had injured his back on their job. Mr. Floyd specifically stated that he had several conversations with the claimant during the trip which occurred on or about February 29, 1996, but at no time did claimant say he injured his back. However, Mr. Floyd testified that claimant did advise him that his back was out and that he would be unable to take the next load.
[8] “In determining whether a party has met the burden of proof on an issue, administrative law judges and the commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party.” Ark. Code Ann. §
11-9-704 (c) (4) (Repl. 1996). It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Grimes v. NorthAmerican Foundry,
42 Ark. App. 137,
856 S.W.2d 309 (1993). Finally, a claimant’s testimony is never considered uncontroverted. Lambert v. Gerber Products Co.,
14 Ark. App. 88,
684 S.W.2d 842 (1985). Nix v. Wilson World Hotel,
46 Ark. App. 303,
879 S.W.2d 457 (1994).
[9] In our opinion, claimant has failed to prove by a preponderance of the credible evidence that he sustained an injury during the course and scope of his employment. The record reveals that claimant had a previous workers’ compensation injury while working in the oil fields in the mid 1980’s where he sustained a back injury. As a result of that back injury claimant underwent surgery at the L5-S1 level. Claimant remained off work for three years following his injury. Claimant testified that after sustaining his original injury and undergoing surgery he took up the employment of truck driving.
[10] According to claimant’s testimony, he never experienced any problems with his back after undergoing surgery. Claimant’s testimony clearly conflicts with the testimony of Judy and Ricky Floyd. Claimant stated that while working for the Floyd’s he would occasionally experience soreness in his back from the long hours but stated he did not recall ever missing any work. Contrarily, both the Floyd’s testified that claimant occasionally missed work because his back would act up.
[11] It is hard to believe that a claimant who contends to have sustained an injury as a result of a specific incident identifiable by time and place of occurrence would not seek prompt medical attention. Giving claimant’s previous history with his back which resulted in the surgery and claimant’s prior experience with workers’ compensation claims, one would expect claimant to promptly seek medical attention. However, according to claimant’s testimony he did not see a doctor until March 11, 1996, almost two weeks after the incident occurred.
[12] When the evidence is reviewed as a whole without giving the benefit of the doubt to either party, we find that claimant is not a credible witness. Although claimant testified that he first saw Dr. Hulsey on March 11, 1996, the first medical record of Dr. Hulsey’s which is introduced into evidence is dated April 17, 1996. It is in this record that Dr. Hulsey sets forth the history provided to him by claimant of injuring his back on February 29. There is no medical evidence introduced in the record corroborating claimant’s statement that he first saw Dr. Hulsey on March 11, 1996, for his alleged compensable injury. If, in fact, claimant saw Dr. Hulsey on March 11, 1996, one would expect claimant to introduce a medical record corroborating his testimony.
[13] In our opinion, the testimony of Judy Floyd and Ricky Floyd is entitled to greater weight than the testimony of claimant and claimant’s wife. Accordingly, we find that the claimant did not report an injury to his employer on February 29, 1996, that he misstated the facts when he testified that he reported an injury on that date, and that he did not seek medical treatment two weeks after the alleged incident. Since we find that the testimony of Judy Floyd and Ricky Floyd is entitled to greater weight, we find that claimant has failed to prove by a preponderance of the credible evidence of record that he sustained an injury during the course and scope of his employment. Claimant’s case rests solely upon his credibility which we find to be lacking. Therefore, we affirm the decision of the Administrative Law Judge.
[14] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[15] Commissioner Humphrey dissents.
