{"id":"alj-H108270-2023-01-11","awcc_number":"H108270","decision_date":"2023-01-11","opinion_type":"alj","claimant_name":"Orvi Galeas","employer_name":"Evers Construction","title":"GALEAS VS. EVERS CONSTRUCTION AWCC# H108270 JANUARY 11, 2023","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/GALEAS_ORVI_H108270_20230111.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GALEAS_ORVI_H108270_20230111.pdf","text_length":18395,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H108270 \n \nORVI GALEAS, Employee                                                                              CLAIMANT \n \nEVERS CONSTRUCTION & FIRST COMP                                        RESPONDENT #1 \nINSURANCE CO.                                                                                                \n \nVG CONSTRUCTION & LIBERTY MUTUAL                                      RESPONDENT #2 \nINSURANCE COMPANY \n \nREYES PEREZ, Uninsured                                                                 RESPONDENT #3 \n \n \n OPINION FILED JANUARY 11, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondent #1 represented by RANDY P. MURPHY, Attorney, Little Rock, Arkansas. \n \nRespondent #2 represented by ZACH RYBURN, Attorney, Little Rock, Arkansas. \n \nRespondent #3 not represented by counsel. \n \n \n STATEMENT OF THE CASE \n  \n On  December  7,  2022,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on May 18, 2022 and a \npre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulation: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n\nGaleas – H108270 \n \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Compensability of injury to claimant’s head and left elbow on August 5, 2021. \n2.  Liability between the parties for payment of compensation benefits. \n3.  Temporary total disability benefits from August 5, 2021 through a date yet to  \nbe determined. \n4.    Payment of medical benefits, both past and present. \n5. Claimant’s average weekly wage. \n6. Attorney’s fee. \n At  the time of the  hearing  claimant clarified  that he is requesting  payment of  \ntemporary  total  disability  benefits  beginning  August  6,  2021  and  continuing  through \nDecember 10, 2021.   \n The  claimant  contends  he  sustained  a  compensable  head  and  left  elbow  injury \nwhen he fell while working on August 5, 2021.  He contends he is entitled to temporary \ntotal disability benefits from August 6, 2021 to December 10, 2021, payment of past and \nfuture  medical  benefits,  and  a  controverted  attorney  fee.  Claimant  contends  that  his \naverage weekly wage is $1200.00 based upon $200.00 per day, six days per week.  The \nclaimant reserves all other issues. \n Respondent #1 contends that the claimant was working for VG Construction at the \ntime of the incident. \n Respondent   #2   contends   that   the   claimant   was   not   an   employee   of   VG \nConstruction.  He did not sustain a compensable injury. \n Respondent #3 did not set forth his contentions. \n From a review of the record as a whole, to include medical reports, documents, \n\nGaleas – H108270 \n \n3 \n \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their  demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non May 18, 2022 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact.    \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his head and left elbow on August 5, 2021.   \n 3.        Claimant  is  entitled  to  all  reasonable  and  necessary  medical  treatment \nprovided in connection with his compensable injury. \n 4.   Claimant is entitled to payment of temporary total disability benefits from August \n6, 2021 through December 10, 2021.   \n 5.   Claimant earned an average weekly wage of $880.00 per week which would \nentitle him to compensation at the rates of $587.00 for total disability benefits and $440.00 \nfor permanent partial disability benefits. \n 6.      Respondent  #2  is  liable  for  payment  of  compensation  benefits  pursuant  to \nA.C.A. §11-9-402(a). \n 7.      Respondent  #2  has  controverted  claimant’s  entitlement  to  compensation \nbenefits. \n \n FACTUAL BACKGROUND \n Claimant is a 27-year-old man who previously performed roofing work.  Claimant \n\nGaleas – H108270 \n \n4 \n \ntestified  that  in  August  2021  he  was  performing  roofing  work  for  Ivan  Carpio  and  Eric \nDaniel.  He testified that he worked for them for a year. \n On August 5, 2021, while performing his job as a roofer, claimant was climbing a \nladder to the roof of a house located at 2585 Westminster Lane in Springdale.  When he \ngot  to  the  top  he  slipped  and  fell  to  the  ground,  landing  on  his  head  and  left  elbow.  \nClaimant was taken to the emergency room at Northwest Medical Center in Springdale \nwhere a CT scan of the head revealed a fracture of the right frontal sinus and an x-ray of \nthe  elbow  revealed  a  fracture  of  the  proximal  left  ulna  and  radial  head.    Claimant \nunderwent surgery on August 13, 2021 by Dr. Allard to repair the left elbow fracture and \nhe underwent a second procedure in November 2021 to remove hardware in the elbow. \n Claimant testified that after seeing a physician for his frontal sinus fracture he has \nnot seen a physician for that condition in almost a year.  Dr. Allard indicated in a report \ndated  December  10,  2021  that  claimant  could  return  to  work  as  of  that  date  without \nrestrictions.  Claimant returned to work performing tile repair and was working as of the \ndate of the hearing. \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis head and left elbow as a result of the fall on August 5, 2021.  He requests payment of \ntemporary total disability benefits from August 6, 2021 through December 10, 2021, as \nwell as payment of medical expenses and a controverted attorney fee. \n \nADJUDICATION \n The first issue for consideration involves compensability.  Claimant contends that \nhe suffered a compensable injury to his head and left elbow when he fell off a roof on \n\nGaleas – H108270 \n \n5 \n \nAugust 5, 2021.  Claimant’s claim is for a specific injury identifiable by time and place of \noccurrence.   In order to prove a compensable injury as the result of a specific incident \nthat  is  identifiable  by  time  and  place  of  occurrence,  a  claimant  must  establish  by  a \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has met his burden of proof. \n First, I find that claimant has proven by a preponderance of the evidence that his \ninjury arose out of and in the course of his employment and that the injury was caused by \na specific incident, identifiable by time and place of occurrence.  Claimant testified that \nhe was performing roofing work for Ivan Carpio and Eric Daniel on August 5, 2021 and \nthat  he  slipped  and  fell  to  the  ground  from  the  roof  that  day,  injuring  his  head  and  left \nelbow.  This history of injury is consistent with the history of injury noted in the medical \nrecords submitted into evidence.  Based upon the foregoing, I find that claimant has met \nhis burden of proving by a preponderance of the evidence that his injury arose out of and \nin  the  course of his  employment and  that  the  injury  was  caused  by  a  specific  incident, \nidentifiable by time and place of occurrence. \n I  also  find  that  claimant  has  proven  that  the  injury  caused  internal  or  external \nphysical harm to his body that required medical services or resulted in disability and that \n\nGaleas – H108270 \n \n6 \n \nhe has offered medical evidence supported by objective findings establishing an injury.  \nFollowing his fall on August 5, claimant was taken for medical treatment at the emergency \nroom at Northwest Medical Center.  A CT scan of the head revealed a fracture of the right \nfrontal sinus and an x-ray of the elbow revealed a fracture of the proximal left ulna and \nradial head.  These findings constitute objective evidence. \n Dr. Allard performed surgery to repair the elbow fracture which included internal \nfixation and he performed a second surgery to remove the hardware in November.  The \nsurgery by Dr. Allard satisfies the requirement that the injury caused internal or external \nharm that required medical services.   \n Based  on  this  evidence,  I  find  that  claimant  has  established  the  remaining \nelements of compensability and therefore find that claimant has met his burden of proving \nby a preponderance of the evidence that he suffered a compensable injury to his head \nand left elbow on August 5, 2021.   \n I also find that claimant is entitled to payment for medical treatment provided for \nhis compensable injuries and that he is entitled to payment of temporary total disability \nbenefits from August 6, 2021 through December 10, 2021.  The injury to claimant’s left \nelbow  is  a  scheduled  injury.  A  claimant  who  suffers  a  scheduled  injury  is  entitled  to \ntemporary total or temporary partial benefits during their healing period or until they return \nto  work;  regardless  of  whether  there  is  a  total  incapacity  to  earn  wages.   Wheeler \nConstruction Company v. Armstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001).   \n Claimant remained within his healing period and did not return to work from the \nday  after  his  accident  (August  6,  2021)  until  he  was  released  to  return  to  work  by  Dr. \nAllard on December 10, 2021.  Therefore, I find that claimant is entitled to temporary total \n\nGaleas – H108270 \n \n7 \n \ndisability benefits from August 6, 2021 through December 10, 2021. \n The next issue for consideration is claimant’s compensation rate.  After my review \nof the evidence, I find that claimant earned an average weekly wage of $880.00.  Claimant \ntestified that he was paid $200.00 per day while working for Ivan Carpio.  He also testified \nthat he often worked six days per week.  Accordingly, claimant contends that his average \nweekly wage equals $1200.00 per week.  I do not agree that the evidence supports that \nrate.   \n In order to have an average weekly wage of $1200.00, claimant would have had \nto  work  six  days  per  week  to  earn  that  amount  every  week  he  worked  for  Carpio.  \nHowever, claimant testified that there were some weeks he worked less than six days per \nweek. \n  Q On the times when it would rain a lot, would you work \n  a little less than the six days? \n \n  A Yes. \n      *** \n  \n  Q Some weeks you could work six days, some weeks you \n  could work no days? \n \n  A Sometimes three days or four days. \n \n \n Thus, according to claimant’s testimony he did not work six days per week every \nweek; therefore, his average weekly wage could not have equaled $1200.00.  Claimant \nalso testified that the least amount he made a week was $880.00.   \n  Q What is the least money you ever remember making \n  in a week? \n \n  A Eight hundred eighty, that was the least, when we \n  really couldn’t work. \n\nGaleas – H108270 \n \n8 \n \n \n Claimant admitted that he does not have any records showing the amounts he was \npaid.  Claimant has the burden of proving by a preponderance of the evidence his average \nweekly wage.  Based on his testimony, I find that claimant’s average weekly wage equals \n$880.00.  While he testified that there were weeks that he earned more than $880.00, the \nnumber of weeks that occurred is unknown in relation to the number of weeks he earned \nonly $880.00. Therefore, I find based on the evidence presented that claimant’s average \nweekly  wage  equals  $880.00.    This  would  entitle  claimant  to  benefits  at  the rates  of \n$587.00 for total disability benefits and $440.00 for permanent partial disability benefits. \n The  final  issue  for  consideration  involves  liability  for  payment  of  compensation \nbenefits between the parties.  Claimant testified that he was working on August 5, 2021 \nfor Ivan Carpio and Eric Daniel.  He further testified that he had worked for them for one \nyear and that during that period of time he did not work for any other employers.   \n Pursuant   to   A.C.A.   §11-9-402(a),   where   a   subcontractor   fails   to   secure \ncompensation, the prime contractor shall be liable for compensation unless there is an \nintermediate subcontractor who has coverage.   \n In this claim,  Respondent #1, Evers Construction, was the general contractor of \nremodeling work that was being performed according to the testimony of Sonia Mendoza, \none  of  the  owners  of  Evers  Construction.    She  testified  that  Respondent  #1  does  not \nperform  roofing  work,  so  Respondent  #1  subcontracted  the  roofing  work  to  VG \nConstruction, respondent #2.  Respondent #2 in turn subcontracted the roofing work to \nReyes  Perez.    The  contract  between  Respondent  #2  and  Perez  was  submitted into \nevidence as Pages 17 through 26 of Claimant’s Exhibit 2.   \n\nGaleas – H108270 \n \n9 \n \n Testifying at the hearing was Reyes Perez.  Perez testified that he was unable to \nperform any of the roofing work on the home because he had to leave for Florida and he \ncontacted Ivan Carpio.   \n  Q And then did you ever do any work on that house? \n \n  A No.  We were - - well, we already agreed that I was \n  going to do that house myself and the people that worked \n  with me, but I had to leave on the 4\nth\n to Florida and I told \n  VG Construction that I did not have time to do that house. \n  So then he asked me to find somebody or if I had somebody \n  that could do it and I called Ivan Carpio and he said he had \n  time; that he would do it. \n \n \n The  contract  between  Perez  and  Ivan  Carpio  was  submitted  into  evidence  as \nPages 34 through 36 of Claimant’s Exhibit 2.   \n At this point it should be noted that Ivan Carpio was not present at the hearing.  \nInstead, he was released as a party by the remaining parties at a pre-hearing conference.  \nClaimant chose not to proceed against Carpio because he is uninsured; instead, claimant \nhas  chosen  to  proceed  primarily  against  Respondent  #1  and  Respondent  #2  who  are \nboth  insured.    The  fact  that  Carpio  was  uninsured  and a  determination  was  made  that \nCarpio would not be made a party to the claim was confirmed by Attorney Murphy during \na discussion at the hearing. \n Pursuant to A.C.A. §11-9-402(a), I find that Respondent #2 is liable for payment of \ncompensation benefits.    Claimant  worked  for  Ivan  Carpio,  an uninsured  subcontractor.  \nCarpio   obtained   the   subcontract  from   Reyes  Perez     who   is   also   an  uninsured \nsubcontractor.    Perez  obtained  a  subcontract  from  Respondent  #2,  VG  Construction, \nwhich  does  have  workers’  compensation  coverage.    While  Respondent  #1  was  the \n\nGaleas – H108270 \n \n10 \n \ngeneral  contractor,  the  statute  indicates  that  the  general  contractor  will  be  liable for \ncompensation  if  there  is  not  an  intermediate  subcontractor  who  has  coverage.    In  this \ncase, Respondent #2 is a subcontractor who has coverage; therefore, Respondent #2 is \nliable for payment of appropriate compensation benefits. \n With respect to this issue, I note that Respondent #1 contends that based upon \ntestimony from Perez that the subcontract between Perez and Carpio was not signed until \nafter the injury occurred.  However, I do note that the contract is dated the same day of \nthe accident, August 5.  Furthermore, according to Perez’s testimony he did not perform \nany of the work on the home, but instead contracted with Carpio to perform that work.  \nEven if one assumes that the written contract was not signed until after claimant’s fall, the \nevidence clearly indicates that there was an oral contract for Carpio to perform the work \nwhich was being performed on August 5 and resulted in claimant’s fall and subsequent \ninjury.  Accordingly, I find no merit to this contention. \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe suffered a compensable injury to his head and left elbow on August 5, 2021.  Claimant \nis  entitled  to  payment  of  all  reasonable  and  necessary  medical  treatment provided  in \nconnection with his compensable injuries.  In addition, claimant is entitled to payment of \ntemporary  total  disability  benefits  from  August  5,  2021  through  December  10, 2021.  \nClaimant’s average weekly wage equals $880.00 per week.  Finally, pursuant to A.C.A. \n§11-9-402(a), Respondent #2 is liable for payment of compensation benefits. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \n\nGaleas – H108270 \n \n11 \n \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \nRespondent #1 and Respondent #2 are liable for the court reporter’s charges for \npreparation of the hearing transcript, with each to pay the sum $430.20 representing one-\nhalf of the total transcript amount. \nAll sums herein accrued are payable in a lump sum and without discount. \nIT IS SO ORDERED. \n \n     _____________________________________ \n     GREGORY K. STEWART \n     ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H108270 ORVI GALEAS, Employee CLAIMANT EVERS CONSTRUCTION & FIRST COMP RESPONDENT #1 INSURANCE CO. VG CONSTRUCTION & LIBERTY MUTUAL RESPONDENT #2 INSURANCE COMPANY REYES PEREZ, Uninsured RESPONDENT #3 OPINION FILED JANUARY 11, 2023 Hearing before ADMINISTRA...","fetched_at":"2026-05-19T23:11:15.050Z","links":{"html":"/opinions/alj-H108270-2023-01-11","pdf":"https://labor.arkansas.gov/wp-content/uploads/GALEAS_ORVI_H108270_20230111.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}