dissenting. The majority decision in this case dramatically demonstrates that a hiatus exists in the adjudication of workers’ compensation benefits in this state.
In Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984), handed down almost exactly one year ago, we recognized that “the doctrine of liberal construction has evolved through precedent handed down by the Arkansas Supreme Court to its present state which is best summarized” in the case of O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The latter case held that, in the light of the “beneficent and humane” purposes of the Workers’ Compensation Law, all “doubtful cases should be resolved in favor of the claimant. ’ ’ And in the case of Guidry v. J & R Eads Const. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984), we said it is not “the Commission’s prerogative to refuse compensation to a claimant simply because he is untruthful.”
However, despite the holding in both of these cases, we are today affirming a decision where the Commission, without any discussion, merely adopted the law judge’s finding that “the claimant is simply not a credible witness, and I do not believe his testimony that he was acting within the scope of his employment when the accident occurred.”
The reasons given by the law judge for the conclusion reached are not related to the purpose of the trip which resulted in the motor vehicle accident of June 15, 1979, which the appellant contends occurred within the scope of his employment. The first two reasons — that appellant submitted fraudulent income tax returns and made a fraudulent wage statement to the insurance adjuster — were matters explored in the first hearing of this case and the law judge rendered a decision at that time without mentioning any problem with appellant’s credibility. The fact is that by resolving the doubts in appellant’s favor, the law judge could have found that the appellant did not report any personal income for the period involved because his corporate employer, Royal Service Company, did not pay him what he earned since the company did not have the money, but that he did “earn” the amount he told the insurance adjuster he “earned” although he did not actually receive it.
The other two reasons stated by the law judge for not believing the appellant were that at the second hearing appellant said he was permanently and totally disabled but had won the “Senior’s Division” of the state golf tournament a few months previously, and had paid personal expenses out of company funds but listed them as corporate expenses on his corporate income tax returns. Of course, it is possible to play golf and still be permanently and totally disabled from working as a plumber, but the appellant testified that heand another man won the tournament and it is also possible to win with a partner who plays well even if you cannot play at all. As to listing personal expenses on corporate income tax returns, the appellant testified this was “real possible” but it is significant that the corporate returns are not in the record.
We are left then, with the law judge’s reference to the fact that the appellant was the only person in the truck at the time of the accident and that no one else could verify the purpose of his trip. The law judge, however, would not allow the introduction of the deposition of Calvin Murphy who corroborated appellant’s testimony that on the day of the accident appellant went by a job where Murphy was working (which would have been in the scope of appellant’s employment), but the law judge stated Murphy’s testimony would not have made any difference anyway since Murphy did not remember the specific date that appellant came by the job.
It is clear to me that in making the determination of the purpose of the trip that appellant was making on the day of the accident neither the law judge nor the Commission followed the rules of law which hold that doubtful cases are to be resolved in a claimant’s favor and that it is not ’’the Commission’s prerogative to refuse compensation to a claimant simply because he is untruthful.” Indeed, neither rule is even mentioned in the Commission’s opinion.
The hiatus that exists in the adjudication of these cases results from the fact that it is the duty of the Commission to resolve doubtful issues in the claimant’s favor but on appeal the question is whether there is substantial evidence to support the Commission’s decision. This is similar to the situation in a civil case where the jury must return a verdict based upon a preponderance of the evidence but on appeal the verdict is affirmed if it is supported by substantial evidence. In that situation, however, the Rules of Civil Procedure, Rule 59(a), allows the trial judge to grant a new trial if the jury’s verdict is “clearly contrary to the preponderance of the evidence.” In workers’ compensation cases comparable procedure has not been employed to enforce the requirement that the Commission resolve doubtful cases in the claimant’s favor. I would adopt such a procedure by reversing this case and remanding it with directions that the Commission afford the parties a rehearing in accordance with the rules discussed in this opinion.
I, therefore, dissent from the majority decision.
Cooper, J., joins in this dissent.