CLAIM NO. E604221
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 26, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DAVID McCORMICK, Attorney at Law, Russellville, Arkansas.
Respondent represented by CALVIN GIBSON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] Claimant appeals and respondent cross appeals from a decision of the Administrative Law Judge filed August 30, 1996. Based upon our de novo review of the entire record, we find that claimant has failed to prove by preponderance of the evidence that she sustained a compensable injury on January 30, 1996. However, we find that claimant did sustain a compensable injury in July of 1995 and has proven entitlement to temporary total disability benefits from August 17, 1995 through August 31, 1995. Accordingly, we affirm in part and reverse in part.
[7] Ark. Code Ann. § 11-9-102 (5)(B) states in pertinent part:And she put her hand on the back of the chair. And, I never thought anything of it. And the next thing I knew, the chair was pulled out from underneath me, and I went to the floor. And, my right knee got bent from, I guess, trying to brace myself. And, when I landed, my right knee was turned — my — the bottom part of my leg was turned towards the back, and I heard it pop.
[8] No one contends that the incident involving the co-worker was horseplay. Rather, the incident where the chair was pulled out from underneath claimant is clearly an assault upon claimant by her co-worker. There is no evidence that this assault arose out of the employment relationship between claimant and claimant’s co-worker. Claimant filed a grievance against her co-worker for the assault which occurred. Claimant’s co-worker was disciplined by the supervisor regarding the incident. There is insufficient evidence in the record to suggest what precipitated the event. All the record reveals with regard to why the incident occurred is that claimant sat down in a chair which claimant’s co-worker contended was hers. In our opinion, such incident does not arise out of a work related animus or hostility between claimant and her co-worker. Therefore, we find that claimant has failed to prove by a preponderance of the evidence that the January 30, 1996 incident is compensable. Accordingly, we reverse the decision of the Administrative Law Judge on this aspect of the claim. [9] IT IS SO ORDERED.. . . Compensable injury does not include: (i) injury to any active participant in assaults or combats which, although they may occur in the workplace, are the result of non-employment 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
[10] Commissioner Humphrey concurs in part and dissents in part.[11] CONCURRING AND DISSENTING OPINION
[12] I concur with that portion of the majority opinion finding that claimant sustained a compensable injury in July of 1995, and is entitled to an award of temporary total disability benefits from August 17, 1995, through August 31, 1995. However, I must respectfully dissent from the majority’s finding that claimant failed to prove that she sustained a compensable injury on January 30, 1996.
[14] Claimant consulted Dr. William Ball on August 17, 1995, and presented with pain and swelling in her right knee. According to Dr. Ball’s subsequent office notes, claimant’s swelling and pain persisted until at least August 31, 1995, although by this time her knee had improved some. A return-to-work form contained in the record indicates that Dr. Ball removed claimant from work for a period beginning August 17, 1995, and continuing through August 31, 1995. [15] In my opinion, claimant has proven, by a preponderance of the credible evidence, that she sustained a compensable injury in July, 1995. First, I find claimant’s testimony to be credible in its entirety, and I would find therefrom that she sustained an accidental injury as a result of a specific incident identifiable by time and place of occurrence when she stepped out of a truck and twisted her knee while carrying out her employment duties in July of 1995. Claimant has also established her compensable injury with medical evidence supported by “objective findings,” in that Dr. Ball noted the presence of right knee swelling in August, 1995. This finding also demonstrates that claimant sustained an internal physical harm to her body, and there can be little question — in light of claimant’s consultations with Dr. Ball — that her injury required claimant to obtain medical services. [16] From the evidence discussed above, I would find that claimant sustained a compensable injury in July of 1995, and, based on Dr. Ball’s return-to-work slip dated August 31, 1995, I would find that claimant is entitled to temporary total disability benefits from August 17, 1995, until August 31, 1995. [17] Claimant’s right knee suffered a further insult on January 30, 1996, when a co-worker pulled claimant’s chair out from underneath her while claimant was changing shoes in respondent employer’s locker room. Claimant provided a detailed account of this episode at the hearing:We were up on Highway 7. It was either — we were — they were doing the shoulder. And, getting in and out of a crew cab pick-up truck, I twisted my right knee, but I did not think anything of it. And, I just continued work, and it just kept getting worse, and I told my supervisor.
[18] Claimant eventually came under the care of Dr. Scott Bowen, an orthopedic surgeon. On February 21, 1996, Dr. Bowen informed Dr. Ball that he suspected claimant had sustained a “medical meniscal tear and may require arthroscopy.” After conservative therapy failed to sufficiently alleviate claimant’s symptoms, Dr. Bowen did carry out a right knee arthroscopy on April 17, 1996, during the course of which he discovered a medial meniscal tear. It appears that claimant continued her follow-up with Dr. Bowen until at least May 2, 1996, at which time he informed Dr. Ball that claimant was “Doing reasonably well. There is a mild effusion as expected . . . I will have her return as needed.” [19] I would again find that claimant has proven, by a preponderance of the credible evidence, that she sustained a compensable injury on January 30, 1996. While the event leading to claimant’s injury on that date could arguably be characterized as either “horseplay” or an assault, I would point out that respondents have not raised either alternative. In my opinion, the question of whether the January 30, 1996, episode constituted either horseplay or an assault is not properly before this Commission and should not be passed upon. Respondents have only argued that claimant was not engaged in performing “employment services” at the time of her injury on January 30, 1996, and I cannot agree with this assertion. [20] Claimant provided the following account of the circumstances leading up to her right knee injury on January 30, 1996:We came in, and I went to my locker, and I took my winter coveralls off and my work boots off, and I proceeded to put my street shoes — my regular shoes on. And, when I turned, I saw that there was a chair vacant. I went to sit down in it, and Kim Stanton came back in the room and said, “What are you doing in my damn chair?” . . . and, she put her hand on the back of the chair. And, I never thought anything of it. And, the next thing I knew, the chair was pulled out from underneath me, and I went to the floor. And, my right knee got bent from, I guess, trying to brace myself. And, when I landed, my right knee was turned — my — the bottom part of my leg was turned towards the back, and I had heard it pop.
Q. At eight o’clock, you clock in, and you do what?
A. When you’re assigned what job you have to do, you have to put on, you know, winter coveralls to keep warm or whatever, and you do it.
Q. Did you have lockers there at work?
A. Yes, sir.
Q. Do you clock in, and then you check your assignment, and then you change from your former clothing to work clothing?
A. Yes.
Q. And, you’re on the clock while you do that?
A. Yes.
Q. Okay. And, then what time did you say the day ended on January 30th?
A. 4:30.
Q. And, when the day ends on 4:30, do you normally return to the shop sometime between 4:00 and 4:30?
A. Yes.
Q. And, do you then return to the locker area where you again change from work clothing back into street clothes?
A. Yes, sir.
Q. Okay. And, you’re still on the clock until that is done?
A. Yes.
Q. And, you’re not free to leave the premises until 4:30?
A. Right.
Q. Okay. And, were you in the locker room, then, on the afternoon of January 30th, between 4:00 and 4:30, when the event occurred?
A. Yes. Yes.
[21] In my opinion, claimant’s need to change in and out of winter clothing to perform her employment duties — particularly during her regular employment hours — was a necessary incident required to perform her assigned employment tasks. In Olsten Kimberly Quality Care v. CheriPettey, ___ Ark. App. ___, ___ S.W.2d ___ (1996), the Arkansas Court of Appeals stated that:[22] I would find that properly attiring oneself to perform a particular job is a function that is “essential to the success of the enterprise in which the employer is engaged,” and would thus find that claimant was engaged in “employment services” when her chair was pulled out from underneath her on January 30, 1996. [23] I am also persuaded that claimant has satisfied the basic requirements for establishing a compensable injury under Act 796 of 1993. I would find from claimant’s credible testimony regarding the incident of January 30, 1996, that she sustained an accidental injury as the result of a specific incident identifiable by time and place of occurrence and which arose out of the performance of her employment activities. It is also clear from Dr. Bowen’s discovery of a medial meniscal tear that claimant’s January 30, 1996, right knee injury has been established with medical evidence supported by “objective findings,” and that said injury resulted in an internal physical harm to claimant’s body. Also, given claimant’s consultation with Dr. Bowen and the eventual surgery he performed, I would find that the injury of January 30, 1996, clearly required claimant to obtain “medical services.” [24] Finally, from Dr. Bowen’s letter of May 2, 1996, discussed above, I would find that claimant’s healing period extended from January 30, 1996, until that date, and that she is entitled to an award of temporary total disability benefits for any corresponding periods of time that she was unable to work owing to her compensable injury. Based on the foregoing, I concur in part and respectfully dissent in part. [25] PAT WEST HUMPHREY, CommissionerWhatever “performing employment services” may mean in the context of Ark. Code Ann. § 11-9-102 (5)(B)(iii), it must include the performance of those functions which are essential to the success of the enterprise in which the employer is engaged.