Simmons v. Simmons

I respectfully dissent from the majority's decision to reverse former Deputy Commissioner Jones' Opinion and Award. The majority did not find plaintiff's testimony to be credible. However, the Deputy Commissioner, who was present at the hearing when plaintiff, the only witness at the hearing, testified and who reviewed all of the so-called inconsistent statements of plaintiff, specifically found plaintiff credible. Deputy Commissioner Jones found as facts that plaintiff had difficulty recalling dates, but that his testimony as to what transpired at the time of his injury had been consistent. I agree with Deputy Commissioner Jones and disagree with the majority that plaintiff gave five different accounts under oath of how the injury occurred.

First, the only sworn testimony given by plaintiff was at the hearing and in his answers to interrogatories. His version of the injury by accident was substantially consistent on both occasions. The Form 19 was prepared by the employer, not plaintiff. Plaintiff's account of the accident on the Form 18 and in the recorded statement is substantially the same as his testimony. At the hearing, plaintiff testified that he was finishing a joint in the ceiling while standing on a wooden bench with a step on each side. As he was reaching toward the ceiling, he lost his balance and went forward, catching himself against the wall but missing the step on the bench, injuring his right knee. His father, who was his employer, arrived on the job site shortly after the incident and observed the injured knee. Plaintiff reported the injury to his employer within an hour after it occurred, experienced pain and had limited activity during the weekend, and went to the doctor on the next business day. His injury was acute and needed immediate surgical intervention.

I do not believe that it is realistic to expect an injured worker to give exactly the same version of how an injury occurred every time he describes the incident. In this case plaintiff's accounts of the incident were substantially similar. In addition plaintiff was able to work with no problems until the incident occurred, reported the injury immediately to his supervisor, and sustained an acute injury that required immediate surgery. Based upon all of these factors, as well as the credibility determination of the Deputy Commissioner, I vote to affirm the Opinion and Award of the Deputy Commissioner and award continuing disability compensation to plaintiff.

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

2. At all relevant times, an employment relationship existed between plaintiff and defendant-employer.

3. State Farm Insurance Company is the carrier on risk.

4. Robert Lee Simmons is the employer and father of Robert Wayne Simmons.

5. Plaintiff's average weekly wage was $660.11 yielding a compensation rate of $440.07.

6. Plaintiff's medical records, discovery responses, Industrial Commission Forms, payroll information, plaintiff's recorded statement and Robert Lee Simmons' recorded statement were stipulated into evidence as Stipulated Exhibit 1.

7. Additional wage information was stipulated into evidence as Stipulated Exhibit 2.

8. The issues before the undersigned are: (i) whether plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer; (ii) if so, what compensation, if any, is due plaintiff; and (iii) whether plaintiff is entitled to attorneys' fees?

2. Plaintiff gives a variety of conflicting accounts regarding the circumstances of how the alleged injury by accident occurred. In the Form 19, plaintiff reports he went down stairs, tripped and fell and sustained an injury to his knee. In the Form 18, plaintiff indicated he fell off a bench and injured his right knee and right wrist. In plaintiff's recorded statement taken by Ms. Elise Cobb of State Farm Insurance, he indicated that he felt a pop on the inner side of his right leg as he was stepping off the bench. In response to defendant's interrogatories, plaintiff stated he was on the workbench when he lost his balance and slipped 8-10 inches. He felt something pop in his right knee as he caught himself on the wall with his right wrist. In plaintiff's testimony at the hearing, plaintiff claimed that while holding a mud pan and trough, he lost his balance on his workbench and fell forward. He stated he caught himself with his hand but then his hand slipped.

3. Plaintiff alleges that he reported the accident to Robert Lee Simmons, his father, when he came to the job. Mr. Simmons indicated plaintiff informed him he was on a bench and when he came off the bench, he turned and twisted his right knee.

5. Plaintiff presented himself to Dr. Eakins three days later on April 15, 2002. At this visit he filled out an Initial Data form on which he checked no to a question, which asked whether the current injury occurred at work. Dr. Eakins stated in his testimony that plaintiff indicated to him that he had injured his knee at work. However, Dr. Eakins' records indicate the accident occurred on April 14, 2002, and there is no mention in those records that the incident occurred at work. Dr. Eakins' records also indicate plaintiff had had a prior history of some knee symptoms.

6. Plaintiff had a mild injury to his knee a year and a half prior to the alleged incident on April 12, 2002. Plaintiff was treated by Doctors' Urgent Care and did not miss any work as result of that injury and did not suffer any further symptoms after the initial accident a year and a half prior to April 14, 2002.

7. The Full Commission does not find plaintiff's testimony to be credible. Plaintiff has given five different accounts under oath of how the injury occurred. The dates from the medical records are inconsistent with plaintiff's claims. Further, Dr. Eakins medical notes, made contemporaneously with the visit, do not support plaintiff's claims that the injury occurred while the plaintiff was at work.

8. Plaintiff has failed to prove that he suffered an injury by accident arising out of and in the course of his employment with defendant-employer on April 12, 2002.

2. Defendants shall pay the costs.

This the 31st day of July 2003.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/____________ BUCK LATTIMORE CHAIRMAN

DISSENTING:

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER