CLAIM NO. E507855
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 10, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by LANA PARKS DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by RICHARD SMITH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above referenced case on February 29, 1996, finding that claimant had sustained a compensable injury as the result of an employment-related assault on April 2, 1995, and was entitled to an award of temporary total disability benefits from May 17, 1995, through October 1, 1995.
[7] Claimant was off work for the next two days, and when she returned on Sunday, April 2, Barbee persisted in his efforts to discuss whether he would be reported. Claimant informed him that she still intended to do so, and testified that Barbee then “became upset and told me that he would hit me in the face with a brick . . . he had picked up a brick.” Claimant then arranged for a co-worker to take her place watching over the children, and attempted to go home:Well, he wandered out and he wanted to discuss, it seemed like he wanted to discuss more talk about me reporting him. And he got upset, and he told me that he would blow my brains out when I told him that I wouldn’t be able to discuss it further with him, that it was time I had to go home. And he told me that he would blow my brains out.
[8] Mr. Larry Stout observed this incident, and reported it in a memorandum to Mr. Bobby Hankins, respondent employer’s Director of Public Safety:Well, I was going back in to leave, to leave the hospital, and I was going back in to leave and Mr. Barbee, I observed him bringing in a stick with some nails in it, and he just was shaking it at me like he was going to intimidate me or beat me with the stick with the nails. So I told my supervisor that I would have to leave and go home. . . So there was a door right outside where I was telling her. As I was leaving out that door, because I was just sick to my stomach, I was almost nauseated, about to just throw up, and he followed me out that door and just threw me into a brick wall.
[9] Mr[B. Stout’s memo went on to explain that on April 7, 1995, Barbee once again stated that he intended to kill claimant. [10] As a result of the April 2 incident, claimant sustained an injury to her knee, which she described as initially “very bloody and all the skin was all off my knee.” Claimant also felt pain in her left side and recalled “limping that night.” Claimant denied having any personal or intimate relationship with Barbee. [11] Barbee himself testified as well, and insisted that he and claimant had engaged in an intimate dating relationship “on three or four occasions.” He further stated that he and claimant assisted each other with paying bills and that he spent several evenings at her home. According to Barbee, whatever animosity developed between he and claimant was the result of this personal relationship. More particularly, it appears from Barbee’s testimony that he was especially concerned about claimant’s supposed liaison with his “best friend,” Larry Stout. [12] Respondents also presented testimony from Kevin McNeal. Mr. McNeal testified that his only knowledge of a relationship between claimant and Barbee was based on “hearsay from Charles Barbee.” Ms. Layuna Bratchett, claimant’s supervisor, testified that claimant’s co-workers did talk about a relationship between claimant and Barbee, but that this talk did not begin until after the “incidences (sic) . . . when Tonya said he was threatening her.” Claimant herself testified that she too began hearing rumors following Barbee’s transfer to another unit, to the effect that the two of them were involved in a personal relationship: “It was like he was just trying to destroy my character for reporting him.” [13] Because claimant contends that she sustained a compensable injury after July 1, 1993, Act 796 of 1993 is applicable to the facts of this case. [14] Respondents’ appeal is essentially predicated on Ark. Code Ann. § 11-9-102 (5)(B)(i) (Repl. 1996), which states:On Sunday, April 2, 1995, I, Larry Stout, while returning from delivering food supplies to Unit One, witnessed Mr. Charles Barbee run up to and shove Ms. Tonya Redmond from behind into a brick wall. . . I stepped between Mr. Barbee and Ms. Redmond to prevent further assault. It was at this time that Mr. Barbee stated that she (Ms. Redmond) “doesn’t have a job here. . . I’m going to kill the bitch.” I was able to talk Mr. Barbee into leaving the area without further incident.
[15] We are persuaded by our review of the record to find that claimant is simply a more credible witness than Barbee, and we give far greater weight to her account of the origins of Barbee’s assault, e.g., that it was occasioned by claimant’s intent to report Barbee’s violent threat. We are not moved by Barbee’s testimony, or that of any other witness, to find that his attack upon claimant arose out of an alleged personal relationship between the two. [16] In arriving at this conclusion, we note that Barbee has a considerable criminal record, including two separate periods of incarceration for theft in the 1970s. In addition, Barbee was charged with second degree battery in 1983. This charge was evidently dropped after Barbee voluntarily entered Fort Roots for evaluation. [17] Respondents note that the 1983 battery charge involved a former girlfriend of Barbee’s, and go on to make the curious comment that” . . . i.e. someone with whom Barbee had an intimate relationship . . . there is no evidence of Mr. Barbee ever having assaulted strangers or co-workers.” We presume the implication here to be that Barbee is only prone to violence toward those with whom he is intimate, and that he and claimant must have been intimate or else the latter would not have found herself slammed into a wall. [18] In light of Barbee’s repeated criminal past and his conduct in the instant case (including not only the assault itself but threats against claimant’s life, which we have discerned from her own credible testimony and Mr. Stout’s memo set out above), we are unable to find his testimony worthy of any measurable weight. We instead accept claimant’s version of the events surrounding this unfortunate occurrence as controlling and, based thereon, we specifically find that Barbee’s attack upon claimant arose out of an employment related hostility — to wit, Barbee’s being upset by claimant’s intent to report him for threatening to shoot up the hospital. We thus specifically find that claimant’s injuries resulting from the April 2, 1995, assault are compensable. [19] As an addendum, we should also point out that the opinion of the Administrative Law Judge refers to claimant as having a pair of felony convictions in the 1970s. We have found no indication on the record before us that claimant has ever been convicted of a felony, and assume that this reference was meant to apply to Charles Barbee rather than claimant. [20] Based on our de novo review of the entire record, and for the reasons set forth herein, we specifically find that claimant sustained a compensable injury or injuries on April 2, 1995, as the result of a physical attack by a co-worker which had its origins in an employment-related hostility or animus. The decision of the Administrative Law Judge must therefore be affirmed. [21] 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). [22] 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 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996). [23] IT IS SO ORDERED.“Compensable injury” does not include: 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 PAT WEST HUMPHREY, Commissioner
[24] Commissioner Holcomb dissents.[25] DISSENTING OPINION
[26] I respectfully dissent from the majority’s opinion finding that the claimant sustained a compensable injury as a result of an employment related assault on April 2, 1995. Based upon my de novo review of the entire record, I find that the claimant has failed to meet her burden of proof.
`Compensable injury’ does not include:
[28] Claimant contends that Charles Barbee assaulted her in the workplace because she intended to report to a supervisor that Mr. Barbee told her on March 30, 1995, he had brought guns into the workplace and he intended to “shoot the unit up” It is the claimant’s testimony that when she advised Mr. Barbee she would have to report his comments and activities, he became hostile and began to harass her. The only alleged witness to the alleged incident was Larry Stout. Although Mr. Stout’s written report of the incident was introduced into evidence, Mr. Stout was not called by either party as a witness. I find it troubling that the only witness to the alleged incident is also a person who has been linked to the claimant as an alleged boyfriend. I also find it troubling that this alleged witness was not called to offer testimony under oath and was not subject to cross-examination. Accordingly, I place little weight on Mr. Stout’s written report of the alleged incident. The written report was not dated and I have no way of knowing whether it was prepared contemporaneously with the events or whether it was prepared in an effort to assist the claimant on her claim. [29] This case boils down to whether the claimant’s testimony of the events leading up to the assault are to be believed over the testimony of Charles Bennett and Kelvin McNeil. While I realize that Mr. Barbee and Mr. McNeil are not stellar witnesses, I do believe that their testimony regarding Mr. Barbee’s relationship with the claimant is credible. Although claimant adamantly denied having a personal or sexual relationship with Mr. Barbee, I find that a preponderance of the evidence does not support her denial. Mr. McNeil testified that Mr. Barbee would come to the hospital and relay stories to his co-workers about Barbee’s relationship with the claimant. According to Mr. McNeil, Mr. Barbee told these stories as his relationship with the claimant developed, not subsequent to the alleged assault. Specifically, Mr. McNeil stated:(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; . . . (Emphasis added.)
Q Now, did he tell you this, did he indicate to you that they had a relationship before he got transferred or afterwards?
A No, this was before he got transferred.
Q What did he say to you? How did he happen to tell you this?
A He just said that he was — he had a relationship with Tonya and he was staying at her apartment and stuff.
Q This was just casual conversation?
A Yes, it was.
Q Did he mention this more than one time?
A From the times that he’d go over to her house, he would come back at work and tell us what he did at the house and all that stuff, you know, and what he had to take home to the house.
Q So he talked — I mean, just two guys working together, he talked about this from time to time?
A Yes, sir, he sure did.
[30] What I find most troubling is the claimant’s testimony that Mr. Barbee’s harassment began after he told her that he was going “to shoot up the unit” and she advised him that she would have to report his comments. Claimant testified that she believed Mr. Barbee to be acting erratically and irrationally at the time he made his comments. Claimant also testified that she feared for her life and the lives of everyone at the hospital. However, claimant did not report Mr. Barbee’s activities until after the alleged assault occurred. Moreover, when claimant finally got around to reporting Mr. Barbee’s activities she never once mentioned the fact to either her employer, or the prosecuting attorney, that Mr. Barbee had threatened “to shoot up the unit.” [31] The claimant testified that she feared for the lives of the employees and the clients at the hospital yet she took no action to protect her life or the lives of others from Mr. Barbee. If Mr. Barbee made this comment and if this comment actually precipitated the assault, why was the comment never mentioned until the hearing? One would expect the claimant to tell someone about the threat “to shoot up the unit” if, in fact, it occurred. Furthermore, the claimant recorded Mr. Barbee’s actions on her personal calendar, yet her personal calendar is void of any comments regarding Mr. Barbee’s threats against the hospital and the unit. What her notes do reveal is that Mr. Barbee followed claimant home and banged on her door. Claimant did not volunteer this additional information until asked to produce her calendar on cross-examination. Until that point, claimant maintained throughout her testimony that Mr. Barbee’s actions subsequent to March 30, 1995 centered solely around Mr. Barbee’s threat and her attempts to report it. The claimant made no mention of the fact that Mr. Barbee actually came to her home, yelled at her and beat on her door. This raises the question, how did Mr. Barbee know where the claimant lived? [32] Claimant’s testimony again contradicts itself when she stated that she began taking notes on her calendar because of Mr. Barbee’s threats “to shoot up the unit” yet there is no mention of this threat anywhere in the calendar. Claimant maintains that she did not have to write down Mr. Barbee’s comments about shooting up the unit because it was imbedded in her memory; yet at no time did she ever report these actions to her supervisors or Mr. Barbee’s supervisors. [33] Claimant’s testimony is also contradicted when she testified that the first erratic behavior she noticed coming from Mr. Barbee was when he made another nurse cry before he came up to her and made the comment about “shooting up the unit.” However, even when the claimant did finally get around to reporting Mr. Barbee’s harassment after the assault, her report only sets forth the personal attacks against the claimant and does not mention the verbal assault of the other nurse. [34] Given the numerous holes and inconsistencies with claimant’s story, it is my belief that these threats against the hospital and the unit never actually occurred. I am then faced with the question that if these threats did not occur, why would the claimant make then up other than to cover up for the real truth, i.e, that Mr. Barbee had threatened her due to a breakdown in their personal relationship. [35] Accordingly, I find that the claimant has failed to prove by a preponderance of the evidence that her injuries are compensable. In my opinion, the alleged assault arose out of a nonemployment-related hostility or animus on the part of Mr. Barbee. If, in fact, he assaulted the claimant, it is my opinion that his actions were so irrational as to only arise out of a personal relationship and not out of the claimant’s comment that she would report his activities which, she never did. A preponderance of the evidence simply fails to support claimant’s allegations for the cause of the animosity. What is more likely true than not, is that the claimant and Mr. Barbee were involved in a “lovers quarrel” which simply got out of hand. [36] Since I find claimant’s testimony lacks credibility, I must find that claimant has failed to prove the compensability of her claim. Therefore, I respectfully dissent from the majority opinion. [37] ALICE L. HOLCOMB, Commissioner