Simmons v. Fayette Cotton Mill, Inc. , 1984 Ala. Civ. App. LEXIS 1237 ( 1984 )

HOLMES, Judge

(concurring specially).

I view this case as involving a unique question of workmen’s compensation law.

It appears to me that the basic question to be resolved is as follows: the evidence, as I view it, shows that the employee has some degree of permanent partial disability. The evidence also reveals that the employee has exaggerated his injury. In fact, it could be said the employee has been untruthful. Under these facts, is the trial court free to find the employee has failed to prove a compensable injury?

My initial conclusion was that under the standard of appellate review of workmen’s compensation eases, i.e., “any evidence,” the trial court was due to be affirmed. However, upon reflection I believe the better conclusion, when viewed in light of the “beneficent purposes” of the act and the somewhat unusual facts of this case, is that the case should be remanded to the learned trial judge. Upon remandment, a determination should be made as to the percentage of permanent partial disability.

I would further comment that in my view there is no need for additional testimony and, furthermore, the trial court can, in view of the employee’s burden of proof, consider the employee’s “untruthfulness” in determining the percentage of disability.