CLAIM NO. E700660
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 15, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by CHRISTOPHER D. ANDERSON, Attorney at Law, Little Rock, Arkansas.
Respondent represented by JOSEPH E. KILPATRICK, JR., Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] Claimant appeals from a decision of the Administrative Law Judge filed December 3, 1997 finding that the claimant’s injury on December 30, 1996 was a result of horseplay. Based upon our denovo review of the record, we find that the decision of the Administrative Law Judge should be and is hereby affirmed. [3] The claimant was employed by the respondent as a pipe inspector. The claimant contended that on December 30, 1996 a co-employee by the name of Eddie Springs approached the claimant approximately five minutes before quitting time, picked the claimant up over his head and threw him to the ground. The claimant offered no explanation or reason why the incident occurred. The claimant contended that he injured his back as a result of this incident. The respondent contended that the injury the claimant may have sustained on December 30, 1996 was the result of horseplay or the result of being a willing participant in horseplay. [4] The claimant in the present claim alleges that he sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence. Therefore, the claimant must satisfy the following requirements contained within Ark. Code Ann. § 11-9-102 (Supp. 1997):
[5] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury he fails to establish the compensability of the claim, and compensation must be denied. [6] There are two totally conflicting versions of how the incident occurred wherein the claimant sustained his alleged injury. There is the claimant’s version and that of the co-employee by the name of Eddie Springs. The claimant testified that he, Eddie Springs and Joe Willie Allen had lunch together on the day of the incident. The claimant stated that after eating lunch he had no further contact with Mr. Springs the remainder of the day. The claimant offered the following testimony of his interpretation of the events of December 30, 1996:(1) “Compensable injury” means: An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997).
(2) A compensable injury must be established by medical evidence, supported by “objective findings” as defined in § 11-9-102(16). Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 1997).
(3) For injuries falling within the definition of compensable injury under subdivision (5)(A)(i) of this section, the burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102(5)(E)(i) (Supp. 1997).
[7] The claimant had eaten lunch with Mr. Springs and Mr. Allen on the day of the incident. In fact, the claimant had lunch on many occasions and had traded cigarettes with Mr. Springs. However, the claimant could offer absolutely no explanation as to what would have brought on such an alleged attack by Mr. Springs. The claimant testified as follows regarding the incident and as to why it happened:Q. All right. Now tell me what happened at the time of this incident? Tell me from beginning to end what happened for this incident.
A. Okay. I went to the time clock to see what time it was, okay, and I realized that it wasn’t 3:30 so I had five minutes, okay? During this time I say I’m going to set up for the next day, okay? So at that time the pallets was, we had about eight or nine pallets, you know, right by the time clock, okay? So I had a little time, so I started to go on and just set up for tomorrow.
So I reached and got one of the pallets from off the top, okay? And about the time I did that, all I seen was Eddie Springs, you know, he just rushed me, you know, and picked me up and threw me down
When he threw me down, I landed on one of the pallets that I had got for the table back over to my area to set my area up.
Q. Any idea why this would have occurred?
A. No.
Q. Just out of the blue and for no reason?
A. No reason.
[8] The claimant testified that he knew of no communication that could have provoked Mr. Springs:Q. And there was no kind of communication between you and Mr. Springs before this happened?
A. That day?
Q. Immediately before.
A. No.
Q. He didn’t say a word to you and you didn’t say a word to him?
A. No.
Q. How about in the lunch period? Did you say anything to him or did he say anything to you that would have caused him to do this?
A. This same day?
Q. Yes, sir.
A. No.
[9] All the claimant could testify to was that Mr. Springs, for no apparent reason and without provocation, simply came up to him, picked him up over his head and threw him to the ground. The claimant is unable to provide any corroborating proof as to why Mr. Springs attacked him. The claimant concedes that others witnessed the events but he was unable to provide any corroborating witnesses. [10] Mr. Springs’ version of the events are totally different from that of the claimant. Mr. Springs testified that he may have said something to the claimant that provoked him but that it was all in good fun and that no ill will was intended. Mr. Springs testified as follows:Q. On the day of this incident, tell me, just start from the beginning and say what happened.
A. When we was standing at the clock?
Q. Yes, sir.
A. We was standing at the clock, and it’s like everybody was waiting to clock out, and I told him don’t kiss the girl because that Sunday she had been around, you know —
Q. What do you mean by, “She’s been around?”
A. She had everybody’s penis in her mouth.
Q. So you told him not to kiss her?
A. Yes, sir.
Q. And then what did he do?
A. He grabbed me like this (Indicating), kind of like this here (Indicating), and I just, we just kind of went down like this (Indicating). And I said, “Turn loose, turn loose.” And he [sic] aloose and we walked out the door.
Q. Did you consider him being mad or was this in fun?
A. No, he wasn’t mad at all.
Q. Were you mad?
A. No, sir.
Q. Was this just play?
A. Yeah, it wasn’t any violent intent, it wasn’t any attitude or nothing. I didn’t even know he, you know —
Q. When he let go and he’s on the floor, what happened after that?
A. I helped him up and we go on out the door laughing.
Q. Was he laughing?
A. Yeah.
Q. And you were laughing?
A. Everybody, I mean, yeah.
Q. Was there other people there?
A. Yeah.
Q. Was Mr. Allen there?
A. Yes, sir.
Q. He was standing there with you all?
A. Yes, sir.
Q. Did you ever pick up Mr. Bates over your head and throw him to the ground?
A. No, sir, I wouldn’t.
[11] Mr. Springs also testified that he had gone to lunch with the claimant since this incident occurred and that there were no bad feelings between the two. [12] Mr. Joe Allen also testified at the hearing. Mr. Allen testified that he was a friend of the claimant’s, that he worked with the claimant and that he was at the scene at the time the incident occurred. Mr. Allen testified as follows:Q. How about Mr. Bates, have you gone to lunch with him a lot?
A. A few times.
Q. Is he a friend of yours?
A. Yes.
Q. Were you there on the day that this incident that we’re here about today?
A. Yes, I was.
Q. Do you remember what time the incident occurred?
A. No. We was waiting for the clock going to go off to get off.
Q. So it was at the end of the day?
A. End of the day, yeah.
Q. Did you see it occur?
A. A little bit of it, I seen it.
Q. Okay. Can you tell us what you saw?
A. Just seen them over there grabbing each other.
Q. Did you see Mr. Bates grab Mr. Springs’ shirt?
A. I can’t say who grabbed who, but you know.
Q. Did they look like they were fighting or playing?
A. It was what happened every day at the clock about that time.
Q. Just horseplay?
A. Yeah, every day about that time.
Q. Did you see Mr. Springs pick up Mr. Bates over his head and throw him to the ground?
A. I didn’t see that, no.
Q. Did that happen?
A. I didn’t see that, no.
Q. Did that happen?
A. I didn’t see it.
Q. When this incident was over, was anybody, what happened after that?
A. They got off.
Q. Were people laughing?
A. As usual, yeah.
Q. The same thing that happens most days?
A. Yeah, every day.
Q. Was Mr. Bates laughing?
A. I couldn’t really tell, everybody was laughing, you know.
Q. As far as you could tell, it was just a game?
A. Yeah.
[13] This case basically boils down to a determination of whether or not to believe the claimant’s version of the events or Mr. Springs’ version of the events. It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. RicelandFoods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). It is important to note that the claimant’s testimony is never considered uncontroverted. Lambert v. GerberProducts Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). Nix v.Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). [14] In our opinion, the version of the events as they transpired as related by Mr. Springs is more believable than the version of the events as related by the claimant. The testimony of Mr. Joe Allen corroborated Mr. Springs’ version of the events as opposed to the claimant’s version of the events. The evidence simply shows that the claimant’s injury was not sustained while the claimant was within the course and scope of his employment but rather arose from his active engagement in horseplay with a co-employee. Under the provisions of Ark. Code Ann. §11-9-102(B)(i) (Supp. 1997), the claim is barred if the claimant is engaged in horseplay. The statute provides:(B) “Compensable injury” does not include:
[15] Our review of the evidence indicates that the claimant was not an innocent victim at all but rather was actively engaged in horseplay at the time that his injuries occurred. The testimony of both Mr. Springs and Mr. Allen show that this type of activity occurred each day at roughly the same time — five minutes before quitting time. Mr. Springs’ account of the events is much more plausible than the claimant’s. Further, the claimant has a vested interest in the outcome of this case. Mr. Springs and Mr. Allen do not. Therefore, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury because he was engaged in horseplay with a co-employee at the time of the injuries. Accordingly, we affirm the decision of the Administrative Law Judge. This claim is denied and dismissed. [16] IT IS SO ORDERED.(i) Injury to any active participant in assaults or combats which, although they may occur in the workplace, are the result of nonemployment-related hostility or animus of one, both, or all of the combatants, and which said assault or combat amounts to a deviation from customary duties; further, except for innocent victims, injuries caused by horseplay shall not be considered to be compensable injuries.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[17] Commissioner Humphrey dissents.