BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G LEROY DORN, EMPLOYEE HOUSING AUTHORITY OF THE CITY OF PINE BLUFF, EMPLOYER

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1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G LEROY DORN, EMPLOYEE HOUSING AUTHORITY OF THE CITY OF PINE BLUFF, EMPLOYER AIG CLAIMS, INC., TPA CLAIMANT RESPONDENT RESPONDENT OPINION FILED MARCH 18, 2016 Hearing before Administrative Law Judge Elizabeth W. Hogan on December 18, 2016, in Pine Bluff, Jefferson County, Arkansas. Claimant represented by Mr. Daniel A. Webb, Attorney at Law, Little Rock, Arkansas. Respondents represented by Mr. Jarrod S. Parrish, Attorney at Law, Little Rock, Arkansas. ISSUES A hearing was conducted to determine the claimant s entitlement to payment of medical expenses, temporary total disability benefits and attorney s fees. At issue is whether or not the claimant sustained a compensable injury pursuant to Ark. Code Ann After reviewing the evidence impartially, without giving benefit of the doubt to either party, Ark. Code Ann , I find the evidence preponderates in favor of the claimant. STATEMENT OF THE CASE The parties stipulated to an employee-employer-carrier relationship on May 5, 2015, at which time the claimant was earning sufficient wages to entitle him to a compensation rate of $400.00/$300.00, in the event this claim is found to be compensable. Medicaid has paid some expenses. The claimant contends he sustained physical and mental injuries in an altercation with a co-worker. He seeks payment of medical expenses, temporary

2 -2- total disability benefits from May 6, 2015, to a date yet to be determined and attorney s fees. The respondents contend this claim is not compensable as the altercation was not work-related, but the result of personal animosity. The following were submitted without objection and comprise the evidence of record: the parties pre-hearing questionnaires and exhibits contained in the transcript along with Attorney Webb s letter of December 21, The police officer was unable to attend the hearing due to a scheduled training session and the parties agreed to use her reports in lieu of her testimony. The following witnesses testified at the hearing: the claimant who was polite and calm, co-worker, Robert Terry and maintenance director, Bobby Turner. The claimant, age 55 (D.O.B. November 17, 1960), has a high school education, technical classes, and seminars geared toward government contracting work. His work experience is in residential and commercial construction. He worked for the respondent employer five and a half (5 ½) years, repairing apartments. On May 5, 2015, the claimant was attacked by a co-worker with a small baseball bat and sustained injuries (both physical and mental) which the respondents denied. The claimant has been treated for damage to his left eye, left elbow, teeth, seizures, panic attacks and depression. The claimant explained that some of his personal items were missing and he questioned his co-workers about the theft. When he asked Mr. Spicer, on May 4, 2015, his co-worker became enraged and cursed the claimant in front of tenants. The claimant walked away and filed a complaint with his supervisor, Don Sampson. Mr. Sampson was not called to testify. A meeting was arranged the next day on May 5, The claimant arrived and his co-worker was already there. Mr. Spicer

3 -3- left the office and returned to his vehicle. Sensing danger, the claimant waited in his vehicle for ten (10) minutes until Mr. Purley arrived. The claimant got out of his vehicle with the intention of clocking in for work, but Mr. Spicer attacked him with a small baseball bat. Mr. Purley was not called to testify. The supervisors were late for the meeting. An off-duty police officer, who happened to also be in the parking lot for an unrelated reason, broke up the altercation. The claimant denied threatening Mr. Spicer with a knife on May 4, The police officer who broke up the fight provided a witness statement stating the disagreement concerned cleaning supplies and other personal belongings. Robert Terry, a twelve (12) year employee, observed the claimant and Mr. Purley walking across the parking lot toward the maintenance office on May 5, Mr. Spicer started chasing the claimant who ran away from him. Mr. Terry was not close enough to hear what was said between the claimant and Mr. Spicer. Bobby Turner, maintenance director, was the claimant s supervisor. Mr. Turner said it was common for the employees to carry box cutters and small knives to perform their work. Mr. Turner stated that if an employee has a dispute with a coworker, the employee handbook requires that the supervisor handle the complaint rather than the employees taking the matter into their own hands. Mr. Turner did not know if the claimant filed a complaint with Mr. Sampson, the executive director, on May 4, Mr. Turner understood that the May 5, 2015, meeting was scheduled due to a complaint by Mr. Spicer. The meeting was scheduled by Ms. Epperson for 8:30 a.m., even though the employees must clock in by 8:00 a.m. MEDICAL EVIDENCE Diagnostic testing revealed broken teeth and fractures of the orbital bone and sinuses. While the claimant s elbow was bruised and swollen, testing showed nothing except spurring and calcific tendinopathy.

4 -4- The claimant saw an eye doctor and neurologist for photophobia and uncontrolled shaking and pain in the elbow. He was diagnosed with an ulnar nerve injury. An EEG showed slowing of brain waves and he was prescribed medication for headaches and concentration. The claimant was released to return to work from a neurological standpoint on July 29, 2015, despite nerve palsy. Dr. Redman, the claimant s general practitioner, authored a report dated August 19, 2015, saying the claimant was unable to work. However, Dr. Redman does not treat Medicaid patients. Dr. Stephen Broughton with Southeast Arkansas Behavioral Healthcare, signed a report on December 8, 2015, opining the claimant suffers from post traumatic stress disorder and had been under treatment since August 4, 2015, related to the May 5, 2015, assault. The respondents included medical records predating the assault (from 2002 to 2013) showing the claimant was prescribed antidepressants after his treatment for cancer. Despite the serious nature of his injuries, the medical records do not reflect much in the way of treatment and no work restrictions are specified. DOCUMENTARY EVIDENCE Police records were provided showing Mr. Spicer was charged with second degree battery. Arrest records recount details of the assault; Mr. Spicer s allegation that the claimant pulled a knife on him the day before; the argument about missing cleaning supplies and personal belongings; and the claimant s statement that he and Robert Terry walked by Mr. Spicer s vehicle and spoke to him as normal. The police report mentions three (3) witnesses, Ebony Thomas, Charles Allmond and Robert Thomas, Jr., to the May 4, 2105, argument. None of these witnesses were called to testify.

5 -5- The respondents provided statements from Mike Hardin, Donald Sampson and Ebony Thomas, with signatures of Charles Allmond and Robert Thomas, Jr. These statements were not made under oath or notarized. Since they did not appear at the hearing, there is no way to assess their credibility. The claimant and Mr. Spicer were terminated by letter dated May 11, 2015, signed by Ms. Epperson, who was also not called to testify. The letters were not made under oath or notarized. Documentary evidence also includes a copy of the employee handbook detailing the employer s policy on workplace violence. FINDINGS OF FACT AND CONCLUSIONS OF LAW The claimant and a co-worker were in a dispute about missing cleaning supplies and personal belongings. A complaint was filed and the supervisor scheduled a meeting for the next day. When the parties arrived in the parking lot, the co-worker assaulted the claimant. The Court has held that a three-part test must be satisfied before an assault acts to bar a claim. A claim is not compensable if it is shown: (1) that the injured employee was an active participant in the assault (2) that the assault is the result of nonemployment related hostility (3) that the assault amounts to deviation from customary duties. A claim is not barred if proof concerning one requirement of the statute is lacking, Walker v. Independent Case Management, Ark. S.W.2d (1999). The respondents defense relies heavily on hearsay and what, in hindsight, the claimant should have done differently. And the defense seemed to change from a work-place assault to an employment services issue during cross-examination. I find the argument between the claimant and his co-worker was not personal in nature, but based on cleaning supplies and personal items missing from the

6 -6- claimant s work-site. The claimant questioned other co-workers as well as Mr. Spicer, so the argument was not based on personal animus. The claimant s injuries were sustained when he was attending a meeting required by his employer. Therefore, I find the claimant was performing employment services. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W. 3d 98 (1999). 1. The Workers Compensation Commission has jurisdiction of this claim in which the employee-employer-carrier relationship existed May 5, 2015, at which time the claimant was earning sufficient wages to entitle him to a compensation rate of $400.00/$300.00, in the event this claim is found to be compensable. 2. The claimant has proven by a preponderance of the credible evidence that he sustained a compensable injury, caused by a specific incident, arising out of and in the course of his employment which produced physical bodily harm, supported by objective findings, requiring medical treatment or producing disability, pursuant to Ark. Code Ann The injuries were sustained due to a work-related argument, over missing cleaning supplies and personal items from the work-site, while the claimant was attending an employermandated meeting. 4. The respondents are directed to pay the claimant s medical expenses within thirty (30) days of receipt pursuant to Rule Based on the only report addressing the healing period issued by a specialist rather than a general practitioner, the claimant has proven that he is entitled to temporary total disability benefits from May 6, 2015, to July 29, 2015, based on Dr. Frigon s report. 6. The claimant has also proven by a preponderance of the evidence that he sustained post-traumatic stress disorder as a victim of a crime of violence. 7. The respondents are directed to pay for the claimant s psychiatric treatment and medication within thirty (30) days of receipt pursuant to Rule The psychiatrist did not comment on healing period or work restrictions, therefore no temporary total disability benefits are awarded for mental illness.

7 -7-9. This claim has been controverted and the claimant's counsel is entitled to the maximum attorney's fees to be paid in accordance with Ark. Code Ann , , and WCC Rule 10. Pursuant to the Full Commission decisions of Coleman v. Holiday Inn, (November 21,1990) (D708577), and Chamness v. Superior Industries, (March 5, 1992) (E019760), the claimant's portion of the controverted attorney's fee is to be withheld from, and paid out of, indemnity benefits, and remitted by the respondent, directly to the claimant's attorney. As a reminder, Ark. Code Ann was amended by Act 1281 of 2001, limiting attorney s fees on medical benefits and services for injuries after July 1, If they have not already done so, the respondents are directed to pay the court reporter, Celia Jamison s, fees and expenses within thirty (30) days of receipt of the bill. AWARD Respondents are directed to pay benefits in accordance with the Findings of Fact above. All accrued sums shall be paid in a lump sum without discount and this award shall earn interest at the legal rate until paid, pursuant to Ark. Code Ann , and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (Ark. Ct. App. 1995); Burlington Industries, et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d 126 (1998), 336 S.W. 515, 988 S.W.2d 3 (1999); and Hartford Fire Insurance Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004). IT IS SO ORDERED. Elizabeth W. Hogan ELIZABETH W. HOGAN Administrative Law Judge