Opinion
CLAIM NO. E306827
OPINION JUNE 11, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ROBERT S. TSCHIEMER, Attorney at Law, Little Rock, Arkansas.
Respondent represented by MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Claimant appeals from a decision of the Administrative Law Judge filed May 16, 1996 finding that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury on April 28, 1993. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof.
Claimant contends that he sustained a compensable injury on April 28, 1993 when he slipped and fell striking his back on something. Respondent contends that the claimant's inconsistent statement regarding how the alleged injury occurred, proves that the claimant's story is not credible. Based upon our de novo review of the entire record, we find that the claimant's credibility is highly questionable and, thus, we find that claimant has failed to prove the compensability of his claim.
At the hearing, the claimant testified that when he came to work on April 28, 1993 he placed his lunch box on an air compressor, and when he turned to walk off, he slipped in oil and struck his back on something. Claimant further testifies that the next thing he remembered was seeing a blue light and then waking up in the Dallas County Hospital Emergency Room.
When one reviews the medical records in this case, the claimant has provided inconsistent stories to his medical care providers. Dr. P. B. Simpson's May 10, 1993 office report states:
He had put his lunch up on an air compressor to keep it warm. He turned to walk away and slipped on some oil. He fell on the concrete and apparently struck his back and shoulder area. He hit his head, he thinks, where he was rendered unconscious. When he apparently came to he was in the emergency room complaining of pain in his neck and back and some numbness in his left arm and left leg.
However, the history the claimant provided to Rick Beard who performed the functional capacity evaluation states:
Mr. Taylor stated that he sustained a work-related injury on April 28, 1993 when he slipped and fell on concrete hitting his low back and neck on the floor. The claimant states that he saw `blue fire' and became unconscious. The patient reports that he regained consciousness in the ambulance and went to Fordyce Hospital.
The history taken at the hospital on the date of the alleged injury states:
I fell off the air compressor. It shocked me. Presented in ambulance. On spine board with C collar in place.
Dr. Abraham's March 14, 1994 office report states:
Patient is a 27 year old, right-handed male who had an on-the-job injury when he fell onto his back on concrete. He had no loss of conscious with questionable electrical injury.
Finally, the February 14, 1994 history take by Dr. Douglas Stevens states:
He was putting his lunch on the top of the open air compressor and as he started to walk away, his feet flew out and he fell on an electrical outlet that stood up from the floor. He saw a blue light as he hit and says that they think he shorted out some wires. When he regained consciousness in the hospital his pants were all oily, this having been what he slipped on.
When confronted with each of these histories, the question then becomes when and how did the claimant's injury happen? At times, the claimant was standing on the air compressor and fell; at other times, he simply slipped on concrete, still others, he slipped in oil. Depending on whom he spoke with, the claimant sometimes lost consciousness and sometimes he did not, at other times, the claimant awoke in the emergency room and still at others he awoke in an ambulance.
Claimant was the only person to testify regarding how the alleged fall occurred. Since, we find that the claimant's testimony lacks credibility, we therefore find that the claimant has failed to prove by a preponderance of the evidence that he actually sustained a compensable injury during the course and scope of his employment. In light of the many inconsistencies, any conclusion that the fall actually occurred would be based on speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
In addition to the claimant's inability to provide a consistent history of how the alleged incident occurred, the findings in the medical records indicate that the claimant had "marked inconsistencies" "within a lot of over reaction." (See Dr. Simpson's May 10, 1993 report.) Moreover, the functional capacity evaluation revealed that the claimant put forth less than the maximal effort during his test. The physical therapist who performed the functional capacity evaluation specifically stated:
It should be noted at this time that it is felt that this evaluation was an INVALID test. Therefore, the values obtained during the FCE should not be considered as Mr. Taylor's true functional capacities . . . (Emphasis in original.)
A thorough review of the medical records indicate that all medical providers who treated the claimant questioned whether the claimant was giving his full effort. Claimant's failure to give the same history more than once, together with the comments in the medical records, lead us to believe that the claimant was attempting to manipulate the findings and diagnoses through subjective complaints and resistance to testing procedures.
Finally, as noted by the respondent in their brief, claimant's credibility and motivation in filing this workers' compensation claim is highly questionable due to the fact that the claimant obtained counsel on the very day the accident occurred. The A7-Form introduced into evidence shows that claimant retained legal counsel on August 28, 1993. Such actions of obtaining counsel even prior to filing the claim or completing a Notice of Injury or even talking to one's employer about the accident is highly suspicious. Based upon claimant's action, we find that he planned a claim based upon a fabricated incident.
After reviewing the evidence as a whole, and without giving the benefit of the doubt to either party, we find that the claimant lacks credibility and, accordingly, has failed to prove by a preponderance of the evidence that he actually sustained an injury on August 28, 1993. Therefore, we deny claimant's claim.
We also find that the issue raised by claimant's attorney regarding reimbursement for the deposition of Mr. Gill is not ripe for consideration by the Full Commission. The Administrative Law Judge has failed to rule on claimant's motion at this time, and therefore, there is no order which we can review. Consequently, we hereby remand this claim to the Clerk of the Commission with instructions to reassign this claim to Judge Smith for a determination on claimant's outstanding motion.
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the opinion of the majority finding that claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury on April 28, 1993.
Claimant is a very poor historian and according to Mr. Gill, occasionally has some significant difficulties functioning mentally. What remains consistent is that claimant has always given a history of a slip and fall by the air compressor at work. Kenneth Shinn testified that he was informed that claimant hollered and was found lying on the floor. Claimant was taken to the emergency room and released later that day. All medical reports, as well as the report of the functional capacity evaluation, consistently detail the work-related injury. In my opinion, it is not all that important that claimant is not entirely consistent or concise as to whether he actually loss consciousness or where he regained consciousness.
Further, the mere fact that claimant may have contacted an attorney shortly after his injury is certainly insufficient to support an accusation that he planned a case based on a fabricated incident. Such an accusation is pure speculation and clearly not supported by the evidence.
Based on the above, I find that claimant has met his burden of proving a compensable injury and is entitled to appropriate medical treatment, as well as a period of temporary total disability.
PAT WEST HUMPHREY, Commissioner