{"id":"full_commission-H108270-2023-06-13","awcc_number":"H108270","decision_date":"2023-06-13","opinion_type":"full_commission","claimant_name":"Orvi Galeas","employer_name":"Ever Construction & Vg Construction","title":"GALEAS VS. EVER CONSTRUCTION & VG CONSTRUCTION AWCC# H108270 JUNE 13, 2023","outcome":"unknown","outcome_keywords":[],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Galeas_Orvi_H108270_20230613.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Galeas_Orvi_H108270_20230613.pdf","text_length":8630,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H108270 \n \nORVI GALEAS, EMPLOYEE  CLAIMANT \n \nEVER CONSTRUCTION & FIRSTCOMP                                    \nINSURANCE CO., EMPLOYER                                        RESPONDENT #1 \n \nVG CONSTRUCTION & LIBERTY MUTUAL INS.                         \nCOMPANY, INSURANCE CARRIER/TPA                        RESPONDENT #2 \n \nREYES PEREZ,UNINSURED                                           RESPONDENT #3 \n \n \nOPINION FILED JUNE 13, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE RANDY P. \nMURPHY, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2  represented by the HONORABLE ZACHARY F. \nRYBURN, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 3  pro se. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \n OPINION AND ORDER \n Respondents No. 2 appeal an opinion and order of the \nAdministrative Law Judge filed January 11, 2023.  In said order, the \nAdministrative Law Judge made the following findings of fact and \nconclusions of law: \n\nGALEAS – H108270 2\n  \n \n \n1.  The stipulations agreed to by the parties at a pre-\nhearing conference conducted on May 18, 2022 and \ncontained in a pre-hearing order filed that same date \nare hereby accepted as fact.    \n \n2.  Claimant has met his burden of proving by a \npreponderance of the evidence that he suffered a \ncompensable injury to his head and left elbow on \nAugust 5, 2021.    \n \n3.  Claimant is entitled to all reasonable and necessary \nmedical treatment provided in connection with his \ncompensable injury. \n \n4.  Claimant is entitled to payment of temporary total \ndisability benefits from August 6, 2021 through \nDecember 10, 2021.  \n \n5.  Claimant earned an average weekly wage of $880.00 \nper week which would entitle him to compensation at \nthe rates of $587.00 for total disability benefits and \n$440.00 for permanent partial disability benefits. \n \n6.  Respondent #2 is liable for payment of compensation \nbenefits pursuant to A.C.A. §11-9-402(a). \n \n7. Respondent #2 has controverted claimant’s entitlement \nto compensation benefits. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's January 11, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n\nGALEAS – H108270 3\n  \n \n \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. §11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. §11-9-715(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \n \n \n \n \n \n\nGALEAS – H108270 4\n  \n \n \nCommissioner Mayton concurs, in part, and dissents, in part. \n \n \nCONCURRING and DISSENTING OPINION \n \n          I concur, in part, and dissent, in part, from the majority opinion.  \nSpecifically, I concur with the majority’s finding that the claimant suffered \ncompensable head and left elbow injuries on August 5, 2021, and that the \nclaimant is entitled to temporary total disability benefits from August 6 \nthrough December 10, 2021 to be paid by Respondent Number 2, VG \nConstruction. However, I dissent from the majority’s finding regarding the \nclaimant’s average weekly wage and his compensation rates.  \n         The testimony regarding the claimant’s average weekly wage is \nspeculative, at best. Conjecture and speculation, even if plausible, cannot \ntake the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, \n812 S.W.2d 692 (1991). When the sole evidence of a claimant’s wages is \nbiased testimony, that evidence is speculative at best and cannot form the \nbasis of a claimant’s weekly compensation rate. Importantly, a claimant’s \ntestimony is never uncontroverted as a matter of law. Nix v. Wilson World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). \n          Here, the claimant provided no pay stubs, bank records, or employer \ntestimony reflecting his weekly pay. At the December 7, 2022 hearing, the \nclaimant testified that he was paid cash at the end of each work week. \n(Hrng. Tr., P. 15). His work had no predictability, sometimes working six \n\nGALEAS – H108270 5\n  \n \n \ndays in a row, and sometimes not working at all. (Hrng. Tr., Pp. 15-16). The \nclaimant’s testimony on cross-examination reflects this unpredictability. \nWhen asked, “So about how often would that happen that you would make \nthat low amount of money? Would that be once a month? Once every two \nmonths,” the claimant explained “Every month per month, I don’t know. \nSometimes it rained a month. Sometimes. I don’t know.” (Hrng. Tr., P. 31). \nAt another point in his testimony, the claimant was asked, “On the times \nwhen it would rain a lot, would you work a little less than six days,” to which \nhe responded, “Yes.” (Hrng. Tr., P. 6). Ultimately, the following exchange \nillustrates the unpredictability of the claimant’s work: \nQ: So the way I understand the roofing business is some \nweeks you are working full time and other weeks it might be \none or two days a week, depending on whether the work is \nthere; is that correct? \nA: Yes. \nQ: Some weeks you could work six days, some weeks you \ncould work no days? \nA: Sometimes three or four days. . . Well, like when it was \ncold, we didn’t work much. \nQ: Okay. It depends on the weather and also whether the \nwork was there; is that correct? \n\nGALEAS – H108270 6\n  \n \n \nA: Yes.  \n(Hrng. Tr., Pp. 15-16). \n          The claimant’s testimony reflects that there is, in fact, no record at all \nof his income from the time prior to August 5, 2021. When asked on cross-\nexamination if there was a tax record of what the claimant was paid in years \npast, he responded, “No.” (Hrng. Tr., P. 23). When asked if he has a bank \naccount that could reflect his income from this time, the claimant explained \n“I just opened that bank account so it doesn’t have – it has not been there a \nlong time. When I worked for [the respondents], I didn’t have one.” (Hrng. \nTr., P. 24). During the hearing, the claimant admitted that he has no records \nto show that this was a full-time position. Id. The entire basis of the average \nweekly wage determination here is the claimant’s own recollections. The \nclaimant describes entire months when he could not work at all and periods \nwhere he worked for six days at a time. Id.  \n          “Pursuant to Ark. Code Ann. §11-9-518(c) if exceptional \ncircumstances indicate that the average weekly wage cannot be fairly and \njustly determined by using any other formulas set forth in that statutory \nprovision, the Commission can determine the average weekly wage by a \nmethod that is just and fair to all parties concerned. The claimant has failed \nto produce any testimony from an uninterested party or any physical proof \nof his average weekly wage as of August 5, 2021. Since the claimant’s \n\nGALEAS – H108270 7\n  \n \n \naverage weekly wage cannot be determined, the claimant’s weekly wage \nshould be the minimum of $20.00 per week. The record contains no proof of \nthe claimant’s average weekly wage except for the confusing and self-\nserving statements of the claimant which do not support his position. \n          Accordingly, for the reasons set forth above, I respectfully concur, in \npart, and dissent, in part from the majority opinion. \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H108270 ORVI GALEAS, EMPLOYEE CLAIMANT EVER CONSTRUCTION & FIRSTCOMP INSURANCE CO., EMPLOYER RESPONDENT #1 VG CONSTRUCTION & LIBERTY MUTUAL INS. COMPANY, INSURANCE CARRIER/TPA RESPONDENT #2 REYES PEREZ,UNINSURED RESPONDENT #3 ...","fetched_at":"2026-05-19T22:29:46.309Z","links":{"html":"/opinions/full_commission-H108270-2023-06-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/Galeas_Orvi_H108270_20230613.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}