DOUGLAS v. CITY OF NORTH LITTLE ROCK, 1994 AWCC 37

CLAIM NO. E216311

ROSE DOUGLAS, EMPLOYEE, CLAIMANT v. CITY OF NORTH LITTLE ROCK, EMPLOYER, RESPONDENT and ARKANSAS MUNICIPAL LEAGUE/WORKERS’ COMPENSATION TRUST, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 22, 1994

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by JOHN D. GARNETT, Attorney at Law, North Little Rock, Arkansas.

Respondent represented by J. CHRIS BRADLEY, Attorney at Law, North Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on August 30, 1993. In said opinion, the Administrative Law Judge found that claimant had sustained an aggravation of her pre-existing conditions of diabetes and hypertension and that respondent is liable for medical care provided in connection with claimant’s hospitalization from July 19, 1992 through July 23, 1992.

[3] After carefully conducting a de novo review of the entire record, we find that claimant has failed to prove by a preponderance of the credible evidence that the aggravation of her pre-existing conditions of diabetes and hypertension are causally related to any employment related incident or general job stress. Therefore, we reverse the decision of the Administrative Law Judge. [4] Prior to working with respondent, claimant had worked for 14 years for a federally funded vocational training school and the Arkansas Department of Corrections. Claimant terminated her employment and went on social security disability due to hypertension, diabetes and an equilibrium problem. [5] In April of 1992, claimant went to work for the City of North Little Rock to help develop and write programs for youth counseling and a midnight basketball program. On Friday, July 17, 1992 at 8:30 p.m., claimant was at the Sherman Park facility working behind the counter which faced the entrance. Approximately 100 feet down the hall, fighting broke out among the children. Claimant was not touched in anyway during this altercation. Subsequently, claimant noticed she was having dizzy spells and higher blood pressure. On July 19, 1992, claimant was taken to St. Vincent’s Emergency Room and was admitted into the hospital. Claimant was discharged on July 23, 1992. [6] Claimant maintains that the hospitalization is due to an aggravation of her pre-existing conditions and therefore, she is entitled to workers’ compensation benefits. Respondent controverts this claim in its entirety. A hearing was held and an Administrative Law Judge found that claimant suffered a compensable injury from July 17, 1992 through July 23, 1992 and thus claimant is entitled to medical benefits. However, due to the fact that her disability did not last beyond seven days claimant is not entitled to temporary total disability benefits. It is from this determination that claimant appeals and respondent cross-appeals. [7] The burden of proving the job relatedness of any alleged injury rests upon the claimant, Pearson v. FaulknerRadio Service, 220 Ark. 368, 247 S.W.2d 964 (1952); and there is no presumption to this effect, Farmer v. L.H.Knight Co., 220 Ark. 333, 248 S.W.2d 111 (1952). Indeed, the party having the burden of proof on the issue must establish it by a preponderance of the evidence. A.C.A. § 11-9-704 (c)(2) (1986). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. A.C.A. § 11-9-704;Wade v. Mr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521
(1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). [8] Claimant failed to prove by a preponderance of the credible evidence that her flare-up of high blood pressure and hypertension is a compensable injury. Claimant’s employment did not aggravate, accelerate, or combine with her pre-existing conditions to result in the hospitalization. [9] There is a lack of substantial credible evidence that claimant found herself in a work situation which overtaxed her and resulted in an aggravation of her pre-existing ailments. Although it is undisputed that an altercation took place among the children on July 17, 1992 (eloquently and inflatedly called a “riot” by claimant), it is clear that claimant, as a person not accustomed to fighting children, was upset. However, claimant was no where near the fracas. She was neither directly threatened nor physically injured by the fight. In fact, it appears she was approximately 100 feet away from the disturbance.No threats were personally directed towards her. [10] Additionally, we find it significant that claimant appeared to have disliked her work with the children at the center from the very beginning. Claimant characterized the children from the area served as “pretty bad kids.” She called them undisciplined, unruly, unmanageable and uncontrollable. She testified that during her tenure at the center there had been fights and vandalism. Renee Hinson who also works at the center testified that this is an “at risk” community. However, there are not gangs, guns or knives at the center. Although there were fights, none were uncontrollable. Furthermore, on the evening of July 17, 1992, five, six and seven year olds were present. [11] Also, it should be noted that claimant did not seek medical treatment until approximately 48 hours after the event. During church, claimant began to experience dizziness. It was at this time she was taken to the St. Vincent’s Emergency Room. Additionally, claimant turned in her medical bills to her health insurer on July 30, 1992. Claimant did not seek workers’ compensation benefits until sometime in the future. Claimant has been hospitalized in the past for similar occurrences resulting in “readjustments” of her medicine. [12] It must be kept in mind that claimant has long-suffered from dizziness, ringing in her ears, diabetes mellitus, hypercholesterolemia and chronic anxiety. Prior to working with respondent, claimant had worked at the Arkansas Department of Corrections but left her employment due to medical conditions and has been drawing social security disability since. During her employment with respondent, claimant did not have to undergo any decrease in her social security benefits or stop her disability benefits because she took the job on a trial basis. Claimant testified that she accepted her employment with the city on a trial basis and “did not now how long I would be able to hold out.” In fact, when claimant returned to work after she was released from the hospital, she worked until she voluntarily terminated her employment on September 12, 1992. Claimant testified that she terminated her employment because she “could not just stay there under the frustrating things that were going on the JTPA and the certification process and all of the other things that were taking place.” Claimant has not sought any employment since leaving her job. [13] There is insignificant evidence linking claimant’s flare-up or recurrence of her pre-existing conditions to any employment related incident or general job stress. Therefore, we reverse the decision of the Administrative Law Judge. [14] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[15] Commissioner Humphrey dissents.

[16] DISSENTING OPINION
[17] I must respectfully dissent from the opinion of the majority finding that claimant failed to prove by a preponderance of the evidence that her preexisting condition was aggravated, at least temporarily, by her employment.

[18] It is undisputed that claimant suffered from preexisting hypertension, which was being controlled with medication. Claimant described the July 19, 1992 incident in the following manner:

A We were trying to set up for testing for the participants in the program, and usually on the weekends we have basketball, and then we have group counseling, but this particular night we were trying to have testing to try to get all of the kids certified. And tables had been set up in the gymnasium and chairs. The people were supposed to come from JTPA to do the testing. They called just about ten (10) minutes before time for the testing to take place stating that they could not come until thirty (30) minutes later, which threw the whole program out of whack for thirty (30) minutes of that night. And we didn’t really know whether they were going to get there, even in the thirty (30) minute period.
We didn’t really know what to do, because all the kids were in the center, and we put one group of the younger kids in one room, and we tried to put another group in another room. In the meantime, some young men came in wearing some red bandannas and some blue bandannas, and I was standing at the counter trying to get the kids registered, and they came up and started talking some erotic talk to me (Claimant added later that the abusive language directed toward her became so bad that a police officer had to confront one of the boys), and they appeared to be inebriated, under the influence of something. And they were talking about something that had taken place seemingly in the McCain Mall; some disruption that had started there. They brought it to the center.
Q Had you seen these kids with red bandannas before?
A Some of them I recognized; some of them I did not recognize. I didn’t know who they were, and I was trying to find out who they were, and what they were talking about, and so forth, and the telephone rang in the office.

Q Okay. Were these gang members?

A I don’t —

MR. BRADLEY: Objection.

[19] DIRECT EXAMINATION BY MR. GARNETT CONTINUE:

A I don’t really know if they were gang members; I just know they had on red. And they were talking about the reds and the blues. And I turned to answer the phone in the office, and when I turned to answer the phone in the office, which was, like, not too far from the desk where I was standing, the next thing I heard was that those guys had moved from the desk and they were in the gym and a riot had broken out.

* * *

Q They said it was — it was fighting going on down there in the gym, and that they were throwing chairs and tables all over the gym. So, I immediately hung the phone up, came out from around the counter where I was, and started to the hallway. When I got in the hallway, they were stampeding, running, running from the gym. I did not get as — I started towards the gym and people were just — just running, stampeding, screaming and hollering, coming out of the gym. Some of them were — that were not in the gym, were trying to run to the gym, and I was screaming and hollering for them to leave the building. And I was right in the middle of the hallway screaming for everybody to come out of the gym area into the into the gym.
I think somebody ran and called for the riot squad; they were there in a few minutes. There were five or six men that came into the riot squad, and the next thing I knew they were throwing them around, and hand-cuffing them, and it was just chaotic.

Q Did you attempt —

A After thirty-three (33) years of — of working with young people, I had never been involved in anything as chaotic as this.

[20] Understandably, claimant was excited and upset following the fight. As a result of this stress, claimant became dizzy and had a significant increase in her blood pressure. Claimant’s prescription medication failed to decrease her blood pressure and she had to be hospitalized to get it under control. [21] Dr. Thomas L. Love, claimant’s treating physician, reported that hypertension can be aggravated by stress and opined that the work-related stress “precipitated her admission” to the hospital. [22] Whether gangs or gang members participate in the program or were involved in the July 19, 1992 incident is merely a matter of interpretation or definition. It is obvious that Regina Renee Hinson, the center’s director, does not, and would not, classify any marauding group of adolescents as a gang. She testified in the following manner:

A Well, people always call themselves gangs, but I don’t look at them as being gangs. There’s a group of kids like we were when we grew up; just hang together, you know. If anything happen like, you know, how you have friends and they help you, or cousins, and they call themselves gangs, but I don’t look at it as gangs.

[23] If the participants in this problem were not prone to violence, why does the program utilize uniformed police officers, metal detectors and video cameras to observe the gymnasium and the parking lot? Hinson even acknowledged that there had been a shooting in the parking lot in the past. [24] Further, and probably more important, if the July 19, 1992 incident was not threatening or serious, why couldn’t the two police officers on duty deal with the situation? The situation was not brought under control until additional police officers arrived. [25] Based on the above evidence, I find that claimant has proven by a preponderance of the evidence that the stress associated with the July 1992 incident aggravated her preexisting hypertension. Accordingly, the opinion of the Administrative Law Judge should be affirmed. [26] PAT WEST HUMPHREY, Commissioner