Opinion
CLAIM NO. E911478.
ORDER FILED AUGUST 31, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE STEPHEN SHARUM, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by the HONORABLE MATTHEW MAULDIN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Vacated and remanded.
ORDER
The respondents appeal an opinion and order filed by the administrative law judge on May 8, 2000. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury. The principal issue on appeal is whether or not the claimant was engaged in a prohibited activity at the time the claimant was injured. The claimant testified that he was never instructed not to clean the shower floors before he became injured, but Mr. White testified that the claimant had previously been instructed not to clean the shower floors. The parties essentially agree on appeal that this issue turns on credibility. The administrative law judge, who observed the demeanor of the witnesses at the hearing, made no findings on the comparative credibility of the witness testimony offered at the hearing on this issue.
We hereby vacate the administrative law judge's May 8, 2000 opinion and order, and remand this case for the administrative law judge to make findings of fact and conclusions of law on whether a preponderance of the credible evidence establishes that the claimant was engaged in a prohibited activity at the time he was injured. See, generally, Arkansas State Police v. Davis, 45 Ark. App. 40, 870 S.W.2d 408 (1994).
IT IS SO ORDERED.
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DISSENTING OPINION
I respectfully dissent from the majority opinion in this case. In my view, a remand is unnecessary.
Respondents controverted this claim in its entirety, contending, inter alia, that claimant cannot satisfy the employment services requirement. It is argued that claimant was engaged in a prohibited activity when the injury occurred. Claimant contends that he sustained a compensable injury to his lungs on August 25, 1999.
The testimony is diametrically opposed regarding whether claimant was prohibited from cleaning the shower floors. In this regard, respondents offered the testimony of claimant's supervisor, Gene White. He stated that as a result of claimant's lack of training, he received specific instructions not to clean the shower floors.
Claimant's testimony established that he was assigned general cleaning duties. He acknowledged that this did not include the shower floors. Rather, the floor person handled this task. However, there had been complaints about the floors. As a result, claimant was instructed to correct the deficiencies in the floor person's work. Thus, he cleaned the showers on several occasions. He testified that he did so a few days before the injury without incident. It is claimant's contention that prior to the injury, he was not barred from cleaning the shower floors.
It is apparent that the administrative law judge recognized the evidentiary conflict. Implicit in the award of benefits is a finding that claimant offered credible testimony. Certainly, convincing testimony by respondents on this key point would have resulted in a denial of benefits.
This Commission is not charged with determining whether there is substantial evidence to support the findings of the administrative law judge. Rather, our role is to conduct a de novo review of the record. With this standard in mind, I find that the administrative law judge's decision is supported by a preponderance of the credible evidence. Accordingly, I would affirm the award of benefits without further proceedings.
Based on the foregoing, I respectfully dissent.
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