PATTESON v. OZARK WAFFLES, LLC, 2005 AWCC 238

CLAIM NO. F412585

DIANE PATTESON, EMPLOYEE CLAIMANT v. OZARK WAFFLES, LLC, EMPLOYER RESPONDENT WAUSAU, INSURANCE CARRIER RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 30, 2005

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

Claimant represented by the Honorable Philip M. Wilson, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the Honorable Guy Alton Wade, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

OPINION AND ORDER
The claimant appeals an administrative law judge’s order and opinion filed August 8, 2005. The administrative law judge found that the claimant failed to prove she sustained a compensable injury. After reviewing the entire record de novo, the Full Commission reverses the opinion of the administrative law judge. The Full Commission finds that the claimant proved she sustained a compensable injury on November 11, 2004.

I. HISTORY

Diane Patteson testified that she had been employed as a waitress at Waffle House. The parties stipulated that there was an employment relationship on November 11, 2004. The claimant testified on direct examination:

Q. Would you tell the judge what happened that day?

A. It was slow, and I was doing my tickets like I had done — like I had done previously. No matter what day it is, no matter what time it was, every time I have got ready to go home and it was slow, I have done my tickets at the booth. . . . Dale Tabor was next to me. And the phone rings. . . . So I got up, I turned around, you know, and went to step over the back of the booth. Dale, I don’t know if he was out of the booth or not, you know, because I had done turned around. And I went to go grab the phone and I fell. And I fell into the part where the silverware is, the condiment stand thing. And that is how I broke my hand. . . .

Q. Diane, you were still on the clock?

A. Yes.

Q. Is part of your job duties, in addition to being a waitress, is it to answer the phone?

A. Yeah.

Q. And that was the phone out at Waffle House. Is that correct?

A. Yeah.

Q. You were just simply answering the phone?

A. Yeah.

The claimant agreed on cross-examination that “going over the top of a booth” was not the proper way to answer the telephone.

Dale Tabor testified that he had been a cook for the respondent-employer and was working with the claimant at the time of the accident. Mr. Tabor testified for the claimant, “Diane picked her tickets up and walked around and sat down . . . to do her tickets. . . . The phone went to ringing, and she asked me to get up. I hesitated. She asked Dwayne to answer the phone, and he said it wasn’t his shift. And then she asked me to get up again and I did. And she stood up in the booth, stepped over into the next booth, and proceeded to get — to step over and answer the phone, when she fell and broke her hand.”

Dale Tabor agreed on cross-examination that Waffle House employees had been instructed not to sit in booths while on duty. Mr. Tabor agreed that climbing over a booth was not “the proper way to answer the phone.” Mr. Tabor also agreed that he had written two conflicting statements with regard to the claimant’s accident, and had been fired, stating, “I was terminated under horseplay.”

X-ray studies of the claimant’s left upper extremity were taken on November 11, 2004. The resulting impression was, “Fracture of metacarpals with no wrist fracture.” The claimant began treating with Dr. Ralph D. Cash. Dr. Cash noted on December 7, 2004 that the claimant had “3 intramedullary rods.” Dr. Cash indicated on December 17, 2004 that he was going to perform a closed manipulation. Dr. Cash noted on January 12, 2005, “I think in 2 weeks I am going to bring her in for outpatient removal of all three intramedullary pins of the long, ring, and fifth metacarpal.”

It was reported on March 25, 2005, “Ms. Patterson fell on November 11, 2004 while on duty at Waffle House #437, 1215 Hot Springs Hwy., Benton AR 72015. The incident was reported to Wausau, for investigation and later determined to be result of `horseplay’ and not directly work related. . . . Due to any liability we may incur, Ozark Waffles, LLC is obliged to await a final decision from Wausau Insurance Companies regarding the status of this claim by Ms. Patterson before she is authorized to return to work.”

Dr. Cash reported on April 14, 2005, “At this time I think she has reached a period of healing. . . . I have released her back to regular work which I understand was a waitress.”

A pre-hearing order was filed on June 1, 2005. The claimant contended that she sustained a compensable injury on or about November 11, 2004. The claimant contended that she was entitled to reasonably necessary medical treatment, and temporary total disability compensation from November 12, 2004 through April 14, 2005. The respondents contended, among other things, that “the claimant did not sustain a compensable injury in the course and scope of her employment but, instead, her injury was the result of horseplay.”

The parties agreed to litigate the issues of: “1. Compensability. 2. Medical benefits. 3. TTD benefits. 4. Attorney’s fees.”

A hearing was held on June 22, 2005. Daniel Kelley testified for the respondents:

Q. And you would have periodic safety meetings?

A. Yeah, occasionally.

Q. What kind of issues are discussed at those meetings?
A. Like no sitting down in the booths and stuff like that. . . .
Q. Now, what did you observe with Ms. Patteson on the night of November 11 of 2004?
A. Well, they were sitting — her and Dale were sitting in a booth. She was doing her tickets. And the phone ring, and they called for somebody to pick it up. Well, nobody respond. And then, finally, after they said it again, I jumped up to go answer the phone. And that is when she jumped over the booth and fell and hit her wrist. . . .
Q. Is that the way — are you instructed to get the phone by going over the booth?

A. No, sir.

Q. Now, after this event happened, were you in any way talked to or threatened with regard to what you were going to tell the people at work?
A. Yes. We, me and Dale, were, like, talking, and he told me, in order to keep both of us out of trouble, was to tell Mary that she ran around the corner and slipped and fell, because we’re supposed to have mats out there.

Q. Okay. But that is not what happened?

A. No.

Q. And that is not what you told your employer, was it?

A. No.

Mary Dick testified for the respondents that she was a unit manager for Waffle House. Ms. Dick testified that employees were prohibited from sitting in booths. Ms. Dick testified that Dale Tabor gave conflicting accounts about what happened, and Ms. Dick testified that the claimant filed a claim “under her husband’s insurance because she doesn’t smoke pot herself but she was around someone who did and was afraid it might be in her system.”

The administrative law judge found, “The claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury arising out of and in the course of her employment.”

The claimant appeals to the Full Commission.

II. ADJUDICATION

Ark. Code Ann. § 11-9-102(4)(A) defines “compensable injury”:

(i) 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[.]

A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). The claimant’s burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i).

Except for innocent victims, injuries caused by horseplay shall not be considered to be compensable injuries. Ark. Code Ann. §11-9-102(4)(B)(i).

The administrative law judge in the present matter, “The claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury arising out of and in the course of her employment.” The Full Commission reverses this finding. The administrative law judge determined that the claimant’s activity of jumping over a booth on November 11, 2004 was “horseplay” and therefore not compensable. The administrative law judge cited the case Morales v. Martinez, CA04-92 (Ark.App. Nov. 10, 2004). In Martinez, the Court of Appeals cited an Arkansas Supreme Court case, Southern Cotton Division v.Childress, 237 Ark. 909, 377 S.W.2d 167 (1964). The Supreme Court in Childress determined that the term “skylarking” was synonymous with “horseplay.” The Supreme Court defined “skylarking”: “a practice in which a sailor would run up and down the rigging of a ship in sport, graphically exemplifying the dictionary definition of `horseplay’ as `rough or boisterous play.'”

The Court of Appeals in Martinez affirmed the Commission’s decision that a claimant who was injured while operating a forklift “like a game,” “wasting time,” and “playing” was engaged in horseplay and did not sustain a compensable injury.

In the present matter, however, three witnesses testified that the claimant fell and injured her hand while attempting to answer the phone on the respondents’ premises as part of her employment. When an employee is doing something that is generally required by her employer, the claimant is providing employment services.White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98
(1999). The present claimant was on duty and was required to answer the phone as part of her employment services. The circumstance of the claimant carelessly jumping over a booth to answer the phone does not alter the fact that she was in fact performing employment services. The claimant was not “skylarking,” that is, wasting time or playing a game that did not benefit the employer. The respondents offered some testimony to suggest that the claimant may have avoided a drug test after the accidental injury. Nevertheless, the respondents do not argue that the accident was substantially occasioned by the use of illegal drugs, pursuant to Ark. Code Ann. § 11-9-102(4)(B)(iv).

The Full Commission finds that the claimant proved she sustained a compensable injury on November 11, 2004. The claimant proved that she sustained an accidental injury causing physical harm to the body, arising out of and in the course of employment, which required medical services and resulted in disability, and was a specific incident identifiable by time and place of occurrence. The claimant established a compensable injury by medical evidence supported by objective findings. The preponderance of evidence does not indicate that the claimant’s accidental injury was caused by “horseplay.” The claimant proved that all of the medical treatment of record was reasonably necessary in connection with the claimant’s compensable injury. Finally, the claimant proved that she was entitled to temporary total disability compensation from November 12, 2004 through April 14, 2005. See, Ark. Code Ann. § 11-9-521(a); WheelerConstr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822
(2001).

The claimant’s attorney is entitled to fees for legal services pursuant to Ark. Code Ann. § 11-9-715(a) (Repl. 2002). For prevailing on appeal, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(2) (Repl. 2002).

IT IS SO ORDERED.

_______________________________ OLAN W. REEVES, Chairman
_______________________________ SHELBY W. TURNER, Commissioner

Commissioner McKinney dissents.