{"id":"alj-G607980-2024-03-07","awcc_number":"G607980","decision_date":"2024-03-07","opinion_type":"alj","claimant_name":"Eric Holmes","employer_name":"Dana Turnage","title":"HOLMES VS. DANA TURNAGE AWCC# G607980 MARCH 7, 2024","outcome":"denied","outcome_keywords":["dismissed:1","granted:1","denied:2"],"injury_keywords":["neck","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Holmes_Eric_H301677_20240307.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Holmes_Eric_H301677_20240307.pdf","text_length":14882,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301677 \n \n \nERIC G. HOLMES, EMPLOYEE CLAIMANT \n \nDANA TURNAGE, EMPLOYER RESPONDENT \n \nAMGUARD INS. CO., CARRIER RESPONDENT \n \n \nOPINION FILED MARCH 7, 2024 \n \nHearing before Administrative Law O. Milton Fine II on January 3, 2024, in Little Rock, \nPulaski County, Arkansas. \n \nClaimant represented by Mr. Jacobi P. Malone, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  Mr. Randy  P.  Murphy,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On January  3,  2024,  the  above-captioned  claim  was  heard  in Little  Rock, \nArkansas.    A  pre-hearing  conference  took  place  on October  2,  2023.   The Prehearing \nOrder entered on that date pursuant to the conference was admitted without objection as \nCommission Exhibit 1.  At the hearing, the parties confirmed that the stipulations, issues, \nand respective contentions, as amended, were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  Following a mutually-agreed withdrawal of the fourth,\n1\n they read: \n \n1\nStipulation No. 4 read:  “The parties will stipulate at the hearing to Claimant’s \naverage weekly wage and compensation rates.”  But the  parties at  the  outset  of  the \nhearing advised that that they were unable to arrive at an agreement.  Consequently, this \nstipulation was withdrawn, and the valuation of Claimant’s average weekly wage was \nadded as an issue. \n\nHOLMES – H301677 \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The employee/employer/carrier relationship existed on December 27, 2022, \nand at all other relevant times.\n2\n \n3. Respondents have controverted this claim in its entirety. \nIssues \n At the hearing, the parties discussed the issues set forth in Commission Exhibit 1.  \nAfter  the withdrawal of the stipulation concerning the valuation of Claimant’s average \nweekly wage and its insertion into the issues to be tried, the following were litigated: \n1. Whether Claimant sustained compensable injuries to his neck and back by \nspecific incident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \n5. What was Claimant’s average weekly wage? \n All other issues have been reserved. \nContentions \n The respective contentions of the parties are as follows: \n  \n \n \n2\nI have overruled Respondents’ motion to withdraw this particular stipulation—\nsee infra. \n\nHOLMES – H301677 \n3 \n \nClaimant: \n1. Claimant contends that he is entitled to payment of temporary total disability \nbenefits from the date of the injury to date.  He was unable to return to work, \nunder the physician’s order.  However, he has brokered small jobs between \nhis labor team and clients. \nRespondents: \n1. Respondents contend  that  Claimant  did  not  sustain  an  injury  during  the \ncourse  and  scope  of  his  employment.   There  is  no  medical  evidence  to \nsupport a work-related injury or disability.  Moreover, Claimant did not timely \nreport the alleged on-the-job injury. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother matters properly before the Commission, and having had an opportunity to hear the \ntestimony of the witnesses and to observe their demeanor, I hereby make the following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Respondents’ motion to withdraw Stipulation No. 2 is hereby denied. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he \nsustained a compensable injury to his neck by specific incident. \n\nHOLMES – H301677 \n4 \n \n5. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he \nsustained a compensable injury to his back by specific incident. \n6. Because of Findings of Fact/Conclusions of Law Nos. 4 and 5, supra, the \nremaining   issues—whether   Claimant   is   entitled   to   reasonable   and \nnecessary  medical  treatment,  temporary  total  disability  benefits,  and  a \ncontroverted attorney’s fee, and the valuation of his average weekly wage—\nare moot and will not be addressed. \nPRELIMINARY RULING \nMotion to Withdraw Stipulation \n At the hearing, the following colloquy took place: \nJUDGE FINE:  My understanding is that the claimant has no other proposed \nchange to the stipulations, but the respondents do so, and I’ll now hear you \non that, Mr. Murphy. \n \nMR. MURPHY:  Yes, Your Honor.  Based on the information that’s come to \nlight, we’re contending that the claimant was not an employee of Rainproof \nRoofing  at  the  time  of  the  incident.    We  can  stipulate  to  the  carrier \nrelationship, of course, but it’s our position  that  Mr.  Holmes  was  not  an \nemployee of Rainproof Roofing. \n \nJUDGE FINE:  All right, counsel.  When you say this came to light, was this \na result perhaps maybe of a deposition or something of that nature? \n \nMR. MURPHY:  It was primarily the deposition, Your Honor, but also other \ninformation that we have received during the course of our preparation for \nthis hearing. \n \nJUDGE FINE:  Okay.  I have not seen in reviewing my file any notification \nfrom your office that you were changing your approach to this.  Did you send \nsomething that I’m not aware of? \n \nMR. MURPHY:  I did not. \n \nJUDGE  FINE:    Did  you  notify  Mr.  Malone  prior  to  today  of  the  change  in \nposture on it? \n \n\nHOLMES – H301677 \n5 \n \nMR. MURPHY:  No, Your Honor. \n \nJUDGE FINE:  Okay.  Any reasoning as to why you did not do that? \n \nMR. MURPHY:  Well no, other than the fact that it was just an oversight, I \nguess,  on  my  part,  but  it—we’ve challenged the  compensability  and,  you \nknow, I know it’s a separate issue as we’ve talked about off the record, but \nwe—we’re not prepared and would like to hear testimony, believe there will \nbe testimony, anyway, on the quote, alleged employment relationship. \n \nJUDGE FINE:  All right.  Basically, Mr. Malone, Mr. Murphy—and I know we \ndiscussed  this  off  the  record,  but  Mr.  Murphy  is  moving  to  withdraw \nStipulation No. 2, and my understanding is that you are objecting to that, is \nthat correct? \n \nMR. MALONE:  That is correct, Your Honor. \n \nJUDGE FINE:  All right.  Do you want to give [sic] further on that to make \nyour record as to why you’re objecting? \n \nMR. MALONE:  Yes, Your Honor.  I would just object to the untimeliness of \nthe [sic] being informed as to a withdrawal of that stipulation, Your Honor.  \nWe had no time to prepare.  We came with the agreement that it was already \nestablished that Mr. Holmes was an employee of Mr. Turnage’s so it’s just \nkind of last minute. \n \nJUDGE FINE:  All right.  Let me advise the parties on this.  I’m going to go \nahead and take this proposed change to the Stipulation No. 2, the proposed \nwithdrawal of Stipulation No. 2, under advisement.  I’ll rule in my opinion on \nwhether I will allow that. \n \n[R. 4-6] \n “A stipulation is an agreement between attorneys respecting the conduct of the \nlegal proceedings.”  Ark. Dept. of Corr. v. Jackson, 2019 Ark. App. 124, 571 S.W.3d 539 \n(citing Dinwiddie  v.  Syler,  230  Ark.  405,  323  S.W.2d  548  (1959)).    As  a  general  rule, \nparties are bound by their stipulations.  Dempsey v. Merchants Natl. Bank of Fort Smith, \n292 Ark. 207, 729 S.W.2d 150 (1987).  Nonetheless, the Commission may in its discretion \npermit a party to withdraw a stipulation.  Ark. Dept. of Corr., supra; Jackson v. Circle T \nExpress, 49 Ark. App. 94, 896 S.W.2d 602 (1995). \n\nHOLMES – H301677 \n6 \n \n As the Court of Appeals wrote in Sapp v. Tyson Foods, 2010 Ark. App. 517, 2010 \nArk.   App.   LEXIS   549, “elementary  principles  of  fair  play”  apply  in  Commission \nproceedings.   It would  certainly violate  those principles  in  this  instance  to  allow \nRespondents to withdraw this stipulation so belatedly.  As their counsel acknowledged, \nhe was aware of the circumstances that led to the proposed withdrawal well in advance \nof the hearing, yet he did not alert opposing counsel to this at any point before the hearing.  \nThe withdrawal would mean that Claimant would have had to prove the existence of the \nemployer/employee relationship—an element of compensability (see supra)—that he was \nnot  prepared  to  do  because  of  the  stipulation.   Consequently,  the motion  to  withdraw \nStipulation No. 2 must be, and hereby is, denied. \nCASE IN CHIEF \nSummary of Evidence \n The  witnesses  at  the  hearing  were  Claimant;  his  son,  Eevan  Holmes,  and \nRespondent, Dana Turnage. \n In addition to the prehearing order discussed above, admitted into evidence in this \ncase was Respondents’ Exhibit 1, three screen shots of video footage. \nAdjudication \nA. Compensability \n In this action, Claimant has alleged that he suffered compensable injuries to his \nneck and back by specific incident on December 27, 2022, when he was struck by multiple \nbricks while he was working for Respondent Turnage, performing demolition on a building \nas  part  of  a  crew.    Respondents,  in  turn,  have denied  that  Claimant  suffered  a \ncompensable injury of any type. \n\nHOLMES – H301677 \n7 \n \n Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injuries, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the \nbody . . . arising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An injury \nis  “accidental”  only  if  it  is  caused  by  a  specific  incident  and  is \nidentifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe element “arising out of . . . [the] employment” relates to the causal connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n“when a causal connection between work conditions and the injury is apparent to the \nrational mind.”  Id. \n In Hudak-Lee  v.  Baxter  County  Reg.  Hosp.,  2011  Ark.  31,  378  S.W.3d  77,  the \nArkansas Supreme Court stated: \nIn order for an accidental injury to be compensable, it must arise out of and \nin  the  course of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i)  (Supp. \n2009).  A compensable injury does not include an injury that is inflicted upon \nthe employee at a time when employment services are not being performed. \nArk.  Code  Ann.  §  11-9-102(4)(B)(iii) (Supp. 2009).  The phrase “in the \ncourse of employment” and the term “employment services” are not defined \nin  the Workers'  Compensation Act.  Texarkana Sch.  Dist.  v.  Conner, 373 \nArk. 372, 284 S.W.3d 57 (2008).  Thus, it falls to the court to define these \nterms in a manner that neither broadens nor narrows the scope of the Act.  \nId. \n \nAn employee is performing employment services when he or she is doing \nsomething  that  is  generally  required  by  his  or  her  employer.   Id.; Pifer  v. \nSingle  Source  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the \nsame  test  to  determine  whether  an  employee  is  performing  employment \nservices as we do when determining whether an employee is acting within \n\nHOLMES – H301677 \n8 \n \nthe course and scope of employment.  Jivan v. Econ. Inn & Suites, 370 Ark. \n414, 260 S.W.3d 281 (2007).  The test is whether the injury occurred within \nthe time and space boundaries of the employment, when the employee was \ncarrying out the employer's purpose or advancing the employer's interest, \ndirectly or indirectly.  Id.  In Conner, 373 Ark. 372, 284 S.W.3d 57, we stated \nthat where it was clear that the injury occurred outside the time and space \nboundaries of employment, the critical inquiry is whether the interests of the \nemployer were being directly or indirectly advanced by the employee at the \ntime  of  the  injury.    Moreover,  the  issue  of  whether  an  employee  was \nperforming employment services within the course of employment depends \non the particular facts and circumstances of each case.  Id. \n \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., 72 \nArk.  App.  309,  37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness, but may accept and translate \ninto findings of fact only those portions of the testimony that it deems worthy of belief.  Id. \n No medical  records were  offered into evidence.    Consequently,  the  evidentiary \nrecord is devoid of objective findings of injuries to Claimant’s neck and/or back.  He thus \ncannot  show  that he  sustained a  compensable  injury  to either of  these body  parts;  his \nclaim must fail at the outset.  Claimant has not proven compensability by a preponderance \nof the evidence. \n\nHOLMES – H301677 \n9 \n \nB. Remaining Issues \n Because of the foregoing, the remaining issues—whether Claimant is entitled to \nreasonable  and necessary  medical  treatment,  temporary total  disability  benefits,  and a \ncontroverted attorney’s fee, as well as the valuation of his average weekly wage—are \nmoot and will not be addressed. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301677 ERIC G. HOLMES, EMPLOYEE CLAIMANT DANA TURNAGE, EMPLOYER RESPONDENT AMGUARD INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 7, 2024 Hearing before Administrative Law O. Milton Fine II on January 3, 2024, in Little Rock, Pulaski County, Arkansas. Clai...","fetched_at":"2026-05-19T22:56:01.398Z","links":{"html":"/opinions/alj-G607980-2024-03-07","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Holmes_Eric_H301677_20240307.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}