WILSON v. LINDOO INSTALLATIONS, INC., 1997 AWCC 83

CLAIM NO. E408088

CARLTON WILSON, EMPLOYEE, CLAIMANT v. LINDOO INSTALLATIONS, INC., EMPLOYER, RESPONDENT and WAUSAU INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 20, 1997

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

Claimant represented by GUS R. CAMP, Attorney at Law, Piggott, Arkansas.

Respondents represented by RANDY MURPHY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Respondent appeals an opinion of the Administrative Law Judge finding that claimant sustained a compensable injury and is entitled to benefits for temporary partial disability.

[3] Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1988); Ark. Code Ann. § 11-9-705 (a)(3) (Repl. 1996). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Grimes v. North AmericanFoundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). After ourde novo review of the entire record, we find that claimant has met his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.

[4] Claimant sustained injuries during an altercation with a co-worker. Ark. Code Ann. § 11-9-102 (5)(B)(i) (Repl. 1996) provides that a compensable injury does not include:

Injury to an 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;

[5] Although there is conflicting evidence concerning whether the altercation was employment-related and which combatant was the aggressor, we find that the greater weight of the evidence lies with claimant. The claimant’s testimony about the events surrounding the altercation was corroborated by Timothy Shawn Page. Further, the parties stipulated that three other witnesses would testify in substantially the same manner.

[6] The employer builds racks and shelves on the inside of warehouses. Donovan Cox is the supervisor. In Cox’ absence, Mike Breezo was in charge.

[7] The employees had been working 12 to 14 hours per day, seven days per week for quite some time. On April 12, 1994, claimant and several employees were working approximately 45 feet in the air. Claimant described the incident in the following manner:

A. And, like I say, we were working 12, 14 hours a day, seven days a week, and I asked Mr. Breezo what time we were, what time it was, and he said, we’re working over tonight, and I said, no, everybody’s tired and wore out, I’m going to the motel room at quitting time, and he said no. . . .

* * *

A. And, like I say, I asked him what time it was, and he got, got smart and hateful, and I said, no, we’re going to, or I’m going to take off at quitting time and go to the motel room and rest. He said, no, you’re not, and I said, yeah, yeah, I am, too, and like I say, you know, he said a few cuss words, and I got back at him, and then he asked me outside to fight. He said, I’m going to whoop you after work, and I said, no, you’re not going to whoop me after work. . . .

* * *

A. . . . But anyway, he asked me outside to fight, and I said, no, I’m not going to fight you outside, if we’re going to fight, we’re going to fight in the building.
Q. Did you go to see the foreman, Mr. Cox?
A. Yes, sir. I climbed down, went down and talked to Donovan for probably five, ten minutes, and I said, Donovan, we’ve got a problem up there we need to stop. I said, Breeze is going to whoop me after work, he asked me outside to fight him, and I told him, no, if we’re going to fight, we’re going to fight inside the building. I said, I’m not going to take a chance and get hurt outside and the insurance not cover it, and I had asked Donovan to stop it, and he said, no, if you’re going to fight, take it outside. I asked him three or four times.

* * *

A. And the rest of the boys, they would come down by that time, and I asked . . .

* * *

A. And I asked Breeze, and I said, Breeze, do you want to forget about this, and he said, no, let’s go outside. I said, I’m not going outside. I said, if we’re going to fight, we’ll fight right here, in case I get hurt or something, the insurance will take care of it.

Q. Well, then, what happened?

A. We started toward the door and walked maybe from here to that door, about 20 or 30 foot, and there was a man lift. I don’t know if you know what a man lift is or not. It goes up in the air like 40 or 50 foot and lift these heavy materials up, and we was beside of it, and I was standing there, and I stopped. I said, I’m not going outside, and he runs by me, and I had my fists doubled up. Well, he grabbed me right here. We got this . . .
Q. Grabbed your clothing under your, by the throat?
A. Grabbed my shirt, right here under my neck, just like that right there, and we was scuffling around there. Well, we fell, and he went down and said he dislocated his shoulder. Well, my left arm was under his back, and I landed on top of him. I got this arm stretched out and thumb trying to reach his face, and I could reach his shoulder, but I couldn’t get to his face, and then that’s when Donovan come in and got me by the neck right here and when he twisted my head like a wash rag, and he, like he, he was, Donovan was straddling my back with his legs, like you’d straddle a stool or something, and I couldn’t get up, and there was some more bad language fixing to come in the picture, but, you know, it’s . . .

Q. Whose language was it?

A. Donovan Cox.

Q. All right. What did he, I’m not asking you exactly what he said, but at that point, did he curse you?
A. Yes, sir. He said he would put me six foot under.

Q. I see.

A. Three or four times, and took my head and twisted it and slung me around the floor like a top four or five times.
Q. All right. Did you get your face and neck skinned up?

A. Yes, sir, I did.

Q. Your eye skinned up?

A. Yes, sir.

[8] Timothy Shawn Page, a co-worker, testified in the following manner:

A. Well, we was all sitting down there, and they was arguing over what time we was getting off and all this and that, and Breeze said, well, if you want to do something about it, we’ll do it right now, and Donovan said no, not, not in the building, go outside, if ya’ll’s going to fight take it outside. Well, it didn’t make it outside.

Q. Who grabbed who first?

A. Breeze grabbed Lynn (claimant) first.
Q. I see. Did they get down on the floor scuffling?

A. Uh-huh (affirmative response).

Q. Did Donovan come over and get a hold of Mr. Wilson?

A. Yes, sir.

Q. What did he do? What did you see?

A. What I saw was that Lynn was on top of Breeze. Donovan went over there, grabbed him up, and when I was looking at him, he had him by the neck.

Q. Donovan had Mr. Wilson by the neck?

A. Yes. And when, when they both got up off of the ground, Donovan still had him by the throat, like that right there, had him like that right there and was cussing him out and all this and that. He grabbed him up by the neck.
Q. All right. What happened after that?
A. They sit there, Donovan had him like that right there telling him he was going to put him six foot under and all this and that and then right about two minutes later, Lynn, yeah, Lynn left and then Donovan was like, oh, I’ve got to get to the motel, I’ve got to talk to Lynn, I don’t want him to leave.

[9] The testimony of Donovan Cox contradicted that of claimant and Page. Cox testified that the reason for the altercation was nothing more than a personality clash between claimant and Breezo. He added that claimant was the aggressor and threw the only punch. Cox stated that claimant was the one asking Breezo to go outside and Breezo kept insisting that he would not fight claimant. Donovan testified that two co-workers broke up the fight and that he personally never grabbed claimant around the neck and head or threatened claimant in any manner. Cox’ testimony is simply not credible in light of the other evidence of record.

[10] Based on claimant’s credible testimony, which was corroborated by the testimony of Page, as well as the stipulated testimony of three other co-workers, we find that claimant was not the aggressor or instigator of the altercation. Further, the greater weight of the evidence indicates that the altercation resulted from an employment-related hostility (i.e., a dispute over whether the employees were going to work overtime). Since we have found that the altercation between claimant and Breezo was the result of an employment-related hostility, we need not reach the issue of whether the altercation was a deviation from either participants customary duties. See, Gary Taber v.Strancer Painting and Paper Hanging, Full Commission Opinion filed April 1, 1996 (E500745).

[11] In challenging claimant’s entitlement to temporary partial disability benefits, respondent contends that there is no objective medical evidence of injury. However, we note that cervical X-rays revealed a possible fracture from the T-1 posterior spinous process. Further, the medical evidence indicates that claimant had at least an abrasion of his left cheek. Further, a foreign body was removed from claimant’s right eye, which suffered a corneal abrasion. Claimant presented credible testimony that it was between two and three months before he was able to earn wages equal to those he earned at the time of the injury. Therefore, we find that claimant has proven by a preponderance of the evidence that he is entitled to temporary partial disability benefits for a period of 12 weeks, and affirm the Administrative Law Judge’s award of benefits in this regard.

[12] Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment. Further, we affirm the opinion of the Administrative Law Judge finding that claimant is entitled to benefits for temporary partial disability for a period of 12 weeks. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge. All accrued benefits shall be paid in a lump without discount and with interest thereon at the lawful rate from the date of the opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00.

[13] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[14] Commissioner Wilson dissents.

[15] DISSENTING OPINION
[16] I respectfully dissent from the majority’s opinion wherein it found that the claimant sustained a compensable injury and is entitled to twelve weeks of temporary partial disability. I find that the claimant was an active participant in an altercation at work which arose out of a none employment related hostility. Thus, I find that the claimant’s injury is not compensable.

[17] On April 12, 1994, the claimant was working for Lindoo Installations at a job site in Eudora, Arkansas. On that particular day the claimant and several co-workers were working on a platform approximately forty feet in the air. Mr. Breezo and the claimant’s son were working approximately eight to ten feet away from the claimant. At some point in the afternoon the claimant asked Mr. Breezo the time. According to the claimant, Mr. Breezo responded, “. . . It’s likely we’re going to work over tonight . . .” The claimant then advised Mr. Breezo that everybody was tired and wore out and there would be no overtime, after which Mr. Breezo said no. At that point profanity and curse words were exchanged between the claimant and Mr. Breezo. (T. 15) The claimant became disgusted with Mr. Breezo after Mr. Breezo kept smarting off and calling the claimant names. According to the claimant, it was after the claimant returned the name calling that Mr. Breezo asked the claimant to step outside. (T. 33, 34) The claimant told Mr. Breezo that if a fight were to occur it would occur in the plant. After this exchange of words, the claimant stopped working and climbed down from the platform. (T. 36) After Mr. Breezo came down from the platform, the claimant agreed to go outside to fight. (T. 39) Both Mr. Breezo and the claimant began walking to the door. Approximately twenty or thirty feet from the door the claimant stopped, squared off, doubled his fists, and got ready. At that point, the claimant stated that the fight would happen right here in the building. (T. 39)

[18] The claimant was not hit during the altercation. No blows were passed during the scuffle. The claimant’s face never hit the floor. The claimant did have left arm problems but those problems were not the result of the fight. The claimant acknowledged at the hearing that his left arm was bothering him from “shooting that there hilti gun.” (T. 41)

[19] The claimant also claims to have eye problems which according to the claimant’s testimony cleared up two or three weeks after the incident.

[20] Timothy Page, a co-worker with the claimant, acknowledged that Mr. Breezo did not have authority to order the claimant or anyone else on the particular day this incident occurred. Mr. Page acknowledged that when the supervisor, Donovan Cox, was present Mr. Breezo did not have any authority over the men.

[21] Mr. Page also acknowledged that the arguments started over Mr. Breezo telling the claimant that they were working late and nobody was going to get off early. However, everyone knew that Mr. Breezo did not have this authority. According to Mr. Page, “he was just saying that and then everybodys like . . . well, we ain’t working over and all this.” (T. 61)

[22] The supervisor on the job, Donovan Cox, testified that immediately prior to the altercation, he advised both men that if they fought on the job they would be fired. According to Mr. Cox, Mr. Breezo stated that he would not fight on the job because he did not want to be fired. Mr. Cox stated that he did not physically intervene in the fight but he did attempt to prevent the fight by advising the men they would be fired. It was Mr. Cox’s testimony that the claimant was the aggressor in the fight. According to Mr. Cox, the claimant blind-sided Mr. Breezo and threw the only punch in the fight.

[23] There was some testimony regarding the pay practices of Lindoo Installations. The claimant testified that he would actually receive a paycheck for his regular hours and cash for his overtime hours. During cross-examination of Mr. Cox, the claimant’s attorney inquired into whether the employees were paid by two checks. Mr. Cox continuously stated that he did not know what the attorney was trying to get at. He stated that he had no knowledge of two checks. The claimant’s attorney stated during the deposition of Mr. Cox that he actually had pay stubs which were for the overtime hours. However, there is no documentary evidence in the record of the overtime pay stub mentioned by the claimant’s attorney. Apparently, the Administrative Law Judge, and apparently the majority, relied upon this line of questioning in stating that Mr. Cox did not have any credibility. However, there is nothing in the record to substantiate the claimant’s allegations of illegal pay practices.

[24] The overwhelming weight of the evidence clearly demonstrates that the altercation on April 12, 1994 resulted from a personality conflict between the claimant and Mr. Breezo. Mr. Breezo did not have authority to state that the employees would be working overtime and all of the employees knew this. Thus, the argument of working overtime was a deviation from customary duties. It was not Mr. Breezo’s duty to announce overtime, he was merely trying to aggravate the claimant, and he succeeded.

[25] Even if the claim were compensable, I find that the majority has erred in awarding the claimant twelve weeks of temporary partial disability benefits. The record is void of any medical records indicating that the claimant was temporarily totally disabled from working. There is no evidence in the record that any medical care provider stated that the claimant was in his healing period or that the claimant was unable to work. Moreover, the majority has failed to state facts supporting a finding that the claimant was entitled to temporary partial disability benefits. Temporary partial disability is that period within the healing period in which the employee suffers only a decrease in his capacity to earn the wages he was receiving at the time of the injury. Ark. State Hwy Trans. Dept. v.Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Since there is no evidence in the record that the claimant was in his healing period, in my opinion, the majority was wrong to award such benefits. Moreover, there is no evidence in the record that the claimant’s earning capacity suffered as a result of the altercation. While the claimant took employment for less wages, the record is void of any evidence that the claimant could not resume employment at wages equal to or greater than what he was earning at the time of the accident. Therefore, I respectfully dissent from the majority opinion.

[26] MIKE WILSON, Commissioner