CLAIM NO. E701316
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 1, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CHARLES R. PADGHAM, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] The respondents appeal an opinion and order filed by the administrative law judge on August 19, 1997. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury on January 21, 1997, and ordered the respondents to pay all appropriate benefits. After conducting a de novo review of the entire record in this case, we find that the administrative law judge’s decision must be affirmed. [3] The claimant has alleged that he suffered a specific incident injury on January 21, 1997. In regard to that injury, the claimant has contended that his injury occurred when he was shoved by another employee of the respondent. The claimant has further contended that, as a result of this shove, he suffered an injury to his neck and back for which he is entitled to receive appropriate medical and disability benefits. The respondents have controverted the claim in its entirety, contending that the claimant has not provided any objective medical evidence of an injury and that, in any event, the claimant was not performing employment services or acting in the course and scope of his employment when the injury occurred since the claimant was injured as a result of horseplay. On appeal, the respondents also assert that since the claimant had refused to take a drug test after an emergency room visit shortly following his injury, he should be barred from receiving any workers’ compensation benefits pursuant to this claim. [4] The respondents are apparently engaged in the manufacture of aircraft parts. The claimant stated that shortly after arriving at work, he noted that the machine he was using was malfunctioning, apparently because of a failed computer diskette. The claimant stated that he took the diskette to the office area of the respondents’ place of business for the disk to be reprogrammed. According to the claimant, while he was waiting in the office for the diskette to be reprogrammed, an individual named Dante Sacomani came into the office and violently shoved the claimant, knocking him into another person. The claimant stated that, at the time of the incident, he did not believe that he had been injured. However, he stated that toward the end of his shift he began to feel significant pain in his back and neck. The claimant went on to testify that, after going to bed, he was awakened with the pain at approximately 3:30 a.m. After being awakened, he later sought medical treatment from a local hospital emergency room. [5] The claimant indicated that his girlfriend had called his employer either while at the emergency room or shortly after having left it. The girlfriend apparently spoke with Mr. Allen Nash, a co-employee. [6] Four witnesses testified on behalf of the respondents, all of whom indicated that Mr. Sacomani had not violently pushed the claimant. Instead, they indicated that Mr. Sacomani had apparently grabbed the claimant as part of an ongoing joke at the respondents’ place of business. The respondents’ witnesses, including Mr. Sacomani, indicated that when the claimant was grabbed, he was shaken but not thrown or pushed. These witnesses all agreed that the claimant did not have any role in the ongoing joke nor did he, in any way, instigate the incident. They also agreed that Mr. Sacomani did not grab the claimant with any animosity or intent to harm. [7] The medical record in this case is very limited. In fact, it consists entirely of one treatment note from the emergency room at St. Joseph Regional Health Center in Hot Springs, Arkansas, and a progress note from Dr. Bruce Smith, a Hot Springs orthopedist, dated February 19, 1997. The scant medical records in this case can be attributed to the fact that the respondents refused to provide the claimant any medical treatment following his injury. The emergency room treatment note indicated that the claimant was suffering from muscle spasms and directed the claimant to seek follow-up treatment from Dr. Smith. Dr. Smith’s progress note indicates that he diagnosed the claimant as suffering from a lumbar sprain. Dr. Smith directed the claimant to undergo physical therapy and prescribed medication. The progress note also indicates that the claimant did not keep his scheduled appointment of March 5, 1997. During his testimony, the claimant stated that he did not keep the appointment with Dr. Smith nor pursue physical therapy because he lacked sufficient funds to pay for this treatment. [8] The administrative law judge held that the claimant had established the occurrence of a compensable injury, and that the respondent was liable for providing the claimant appropriate medical and disability benefits. The judge also held that the limited medical records made it impossible to accurately determine the extent of the claimant’s disability. However, he did order the respondents to pay the claimant temporary disability benefits through March 5, 1997, the date of Dr. Smith’s follow up appointment. [9] In reaching his decision, the administrative law judge found that the claimant was a very credible witness. The judge also stated that the respondents’ witnesses appeared cautious and evasive, and he further noted that Mr. Sacomani, who also testified, was a physically imposing man and was the supervisor of the witnesses. The administrative law judge also found that the respondents could not rely upon the horseplay defense set out in Ark. Code Ann. § 11-9-102(5)(B)(i), since the claimant was an innocent victim of the horseplay in question. The decision further held that the claimant was acting in the course of his employment at the time of his injury. The respondents’ contention regarding the claimant’s failure to take the drug test at the hospital emergency room was not addressed in the administrative law judge’s opinion since that argument had not been made at, or prior to, the hearing. [10] We find that the administrative law judge’s decision is correct and should be affirmed. The evidence that some type of incident occurred in which the claimant was grabbed or shoved is overwhelming. It also appears that the claimant immediately attributed his problems to this incident and this event was described to the hospital emergency room physicians. Also, it is apparent from Mr. Nash’s testimony, that when he was advised of the claimant’s injury by the claimant’s girlfriend, he immediately associated the injury with the incident involving Mr. Sacomani. Even though the respondents contended in their prehearing questionnaire that the claimant was not acting in the course and scope of his employment when he was injured, the evidence does not support any other conclusion but that the claimant was so acting when he was injured. In fact, Mr. Jeff Strope, who stated that he was a programmer with the respondents, admitted that he was reprogramming the claimant’s diskette at the time of the incident with Mr. Sacomani. The horseplay defense set out in Ark. Code Ann. § 11-9-102(5)(B)(i), does not apply to innocent victims. While there was no doubt that the shoving and grabbing incident was the result of horseplay, the evidence clearly indicates that the claimant was an innocent victim and had not, in any way, precipitated the event. [11] The final issue to be considered in this case is the respondents’ contention that the claimant should be barred from receiving benefits because of his refusal to submit to a drug screen at the hospital emergency room. However, we note that this argument was not made before the administrative law judge and has been raised for the first time on this appeal. It is a long held rule of law that arguments such as this cannot be raised for the first time on appeal. Hanson v. Amfuel, 54 Ark. App. 370, 925 S.W.2d 370 (1996); Couch v. First State Bank, 49 Ark. App. 102, 898 S.W.2d 57 (1995). [12] However, even if we were to consider this argument, we still do not believe that the respondent has asserted a meritorious defense. [13] In the present claim, there is no indication that the claimant ever consumed any intoxicants, or that drug use could have played any role whatsoever, in the claimant’s injury. In this regard, the evidence indicates that the claimant’s injury occurred as the result of conduct by a co-worker, and the claimant’s own conduct was not a potentially contributory factor. Therefore, even if the respondents’ had properly raised the issue below, so as to create the rebuttable presumption under Ark. Code Ann. § 11-9-102(5)(B)(iv)(b) by the claimant’s refusal to take a drug test, we would find that, under the circumstances of the present injury, the claimant has rebutted any presumption that his injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders. However, we find that this issue was not raised at any time prior to the hearing and, consequently, should not be considered on this appeal. [14] For the reasons set out above, we find that the claimant proved by a preponderance of the evidence that he suffered a compensable injury while acting in the course and scope of his employment and that he is entitled to all benefits awarded in the administrative law judge’s opinion dated August 19, 1997. [15] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996). [16] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[17] Commissioner Wilson dissents.