Dorn v. Housing Authority of Pine Bluff

Cite as 2017 Ark. App. 309

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-1093

LEROY DORN, JR. Opinion Delivered: May 17, 2017
APPELLANT
APPEAL FROM THE ARKANSAS
V. WORKERS’ COMPENSATION
COMMISSION
[NO. G503709]
HOUSING AUTHORITY CITY OF
PINE BLUFF AND AIG CLAIMS, INC.
APPELLEES REVERSED AND REMANDED

RITA W. GRUBER, Chief Judge

This workers’ compensation claim stems from an altercation on May 5, 2016, between

Leroy Dorn Jr., a maintenance worker for Housing Authority of Pine Bluff, and his coworker

Bruce Spicer. The altercation occurred in their employer’s parking lot in front of the

maintenance building on the morning of a supervisor-called meeting with Dorn and Spicer

regarding an incident between them the previous day. Dorn’s injuries from the May 5

altercation included tooth avulsion, contusion of the left elbow, and fractures to the left orbital

bones, left maxillary sinus, and right maxillary sinus. He appeals the determination of the

Arkansas Workers’ Compensation Commission that his injuries were not statutorily

compensable. We hold that the injuries were compensable, and we reverse.

The May 5 altercation occurred in the presence of a Pine Bluff police officer,

Chrisanthia Kendrick, who was in the parking lot for unrelated reasons. She tried to

intervene when she saw Spicer striking Dorn in the head, face, body, and shoulder with a

baseball bat. She repeatedly yelled for Spicer to stop, but he did not obey until she sparked
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her taser at him. She arrested Spicer for battery. Several days later, the Housing Authority

terminated both Dorn and Spicer from employment for workplace violence.

The Housing Authority controverted Dorn’s claim for medical expenses and temporary

total-disability benefits. It contended that the altercation resulted from personal animosity and

was not work related. It relied in part on Spicer’s claim of the previous day that Dorn, whose

job included cleaning apartments, pulled a knife on him after accusing him of stealing Dorn’s

cleaning supplies and personal things at the workplace.

The case was heard by an administrative law judge, who found in her written opinion

that Dorn’s injuries were “due to a work-related argument over missing cleaning supplies and

personal items from the work site, while [Dorn] was attending an employer-mandated

meeting.” She concluded that Dorn had proved entitlement to payment of medical expenses

and to temporary total-disability benefits from May 6, 2015, to July 29, 2015. Both parties

appealed to the Commission, with the Housing Authority claiming that Dorn’s injuries were

not compensable and Dorn contending that he was entitled to temporary total-disability

benefits beyond July 29. The Commission reversed the law judge’s decision, finding that

Dorn had not proved the compensability of his injuries.

For purposes of this case, “compensable injury” is defined as 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.” Ark.

Code Ann. § 11-9-102(4)(A) (Repl. 2012). Specifically excluded from the definition of

“compensable injury” is “[i]njury of any active participant in assaults or combats which,

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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 assault or combat amounts to a

deviation from customary duties,” or injury that was “inflicted upon the employee at a time

when employment services were not being performed . . . .” Ark. Code Ann. § 11-9-

102(4)(B)(i), (iii).

Here, the Commission found that Dorn was an “active participant” in an assault

resulting from his “personal animus for Spicer,” which “had been building for some time

prior to culminating into the altercation of May 5, 2015.” It also found that Dorn was not

conducting employment services at the time of the altercation. Thus, it concluded that Dorn

had not overcome the elements of the statute.

Dorn raises two points on appeal. First, he challenges the Commission’s finding that

his injuries were not compensable pursuant to section 11-9-102(4)(B). Second, he asserts that

he is still unable to work and is entitled to temporary total-disability benefits beyond July 29,

2015—the date that his neurologist released him back to work.

In order to reverse a decision of the Commission, we must be convinced that

fair-minded persons with the same facts before them could not have arrived at the conclusion

reached by the Commission. Santillan v. Tyson Sales & Distrib., 2011 Ark. App. 634, at 6, 386

S.W.3d 566, 570. We will affirm if reasonable minds could reach the Commission’s

conclusion. Thompson v. Mtn. Home Good Samaritan Vill., 2014 Ark. App. 493, 442 S.W.3d

873. We defer to the Commission’s findings of credibility and the resolution of conflicting

evidence. Get Rid of It Ark. v. Graham, 2016 Ark. App. 88, at 10. We review the evidence

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in the light most favorable to the findings of the Commission and will affirm if the findings

are supported by substantial evidence. Bennett v. Tyson Poultry, Inc., 2016 Ark. App. 479, at

2–3, 504 S.W.3d 653, 656.

I. Whether Substantial Evidence Supports the Commission’s Determinations That Dorn’s Injuries
Were Barred Under Statutory Provisions Governing Workplace Assaults

In his first point on appeal, Dorn challenges the Commission’s findings that he was an

active participant in the workplace assault, that the assault resulted from non-employment-

related hostility, that the assault amounted to a deviation from his customary duties, and that

he was not conducting employment services at the time of the assault. See Ark. Code Ann.

§ 11–9–102(4)(B)(i). His arguments are well taken.

The evidence before the Commission included testimony given at the hearing by

Dorn, employee Robert Terry, and Dorn’s supervisor, Bobby Turner, and written statements

of other employees regarding Dorn and Spicer’s previous argument about missing cleaning

supplies and personal belongings. The documentary evidence included a May 4 police report

recounting Spicer’s statement that Dorn “got angry” and “pulled a knife out of his pocket but

did not use it” in the disturbance that “started over cleaning supplies missing from

apartments”; a police report detailing the May 5 parking lot assault; a probable-cause affidavit

for Spicer’s arrest on second-degree battery; and Spicer’s and Dorn’s letters of termination.

The Commission recounted Dorn’s statements that items allegedly missing from the

apartment unit where he was working were personal items left behind by former tenants as

well as his own cleaning supplies, and employees’ statements that Dorn “had made his mind

up prior to May 4 . . . that Spicer was stealing his things.” The Commission found that

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Supervisor Turner had credibly testified that Spicer had come to him on May 4 with reports

of Dorn’s threatening behavior the same day, which included brandishing a knife, and that

“these threats . . . reportedly upset Spicer so badly that Turner felt compelled to send him

home for the rest of the day.” The Commission noted that on May 4, Spicer had reported

the incident to police. The Commission wrote:

Without implying that Spicer was justified in hitting the claimant numerous times with
a bat on the morning of May 5, 2015, the claimant’s reported behavior towards Spicer the
previous day strongly suggests that the claimant—not Spicer—was the actual protagonist in this
situation. The record, in fact, demonstrates that the claimant believed
someone—namely Spicer—had been stealing his personal things and that he was
determined to do something about it, even if that meant taking matters into his own
hands. And, while there seems, at least by the claimant’s testimony, to be much consternation
concerning why Spicer would take a small bat to him in an unprovoked attack on the morning
of May 5, 2015, this much is clear in this claim: following a long-held suspicion, but lacking
proof thereof, that Spicer had taken his personal belongings, on May 4, 2015, the claimant
confronted Spicer with his presupposition that Spicer was the guilty party—even threatening
bodily harm. This, in turn, led to the altercation of May 5, 2015, which is the subject of this
claim. We note that this conclusion is supported by the fact that the claimant boasted
to co-workers of his potential to commit unconscionable acts of revenge—even going
as far as to express his intentions to physically harm Spicer for presumably stealing his
things.

In sum, the preponderance of the evidence in this claim shows that (1) there
was pre-existing animosity between the claimant and Spicer concerning personal items
that Spicer allegedly stole from the claimant, (2) these missing items were identified as
personal to the claimant both by his testimony and by documents contained within the
record, (3) by allegedly eliminating other co-workers, the claimant summarily
concluded that Spicer took these missing items, and (4) on May 4, 2015, the claimant
confronted Spicer with his suspicions, words were exchanged, and the claimant
allegedly threatened Spicer with a knife.

Furthermore, although the actual events on the morning of May 5, 2015,
leading up to the altercation are questionable in that only the claimant testified in this
regard and the uncorroborated testimony of an interested party is always considered
to be controverted, see, Burnett v. Philadelphia Life Ins. Co., 81 Ark. App. 300, 101
S.W.3d 843 (2003), the record clearly establishes that the claimant boasted to co-workers
about his injurious intentions towards Spicer, and that Spicer was, in fact, fearful of the

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claimant’s touted retribution. This is supported, in part, by credible testimony that Spicer
promptly reported the incident of May 4, 2015 to his supervisors, and he followed up
by making a police report wherein he asserted that the claimant pulled a knife on him.

(Emphasis added.)

On this evidence, the Commission found that Dorn was not “just an innocent victim,

who, upon confronting a bully and thief was badly beaten at first opportunity.” It found that

the growing animosity between Dorn and Spicer, based on Dorn’s uncorroborated conclusion

that Spicer had stolen some of his personal belongings, “had culminated in, at the very least,

a verbal altercation the day before.” It concluded that the physical altercation on the

employer’s parking lot was clearly a result of non-employment-related hostility or animus of

one or both of the combatants and that it amounted to a deviation from customary duties.

First and foremost, we hold that substantial evidence does not support the

Commission’s finding that Dorn was an active participant in the workplace assault. Even

accepting the Commission’s findings that Dorn unjustly accused Spicer and threatened him

with bodily harm, which are findings that turned on the Commission’s determination of

credibility, we hold that there was no substantial evidence of Dorn’s active participation in

the May 5 physical assault when Spicer repeatedly struck him with a baseball bat.

Evidence about the assault itself was given through Dorn’s testimony, coworker

Robert Terry’s testimony, and the May 5 police report. The Commission acknowledged

Dorn’s testimony on direct examination that Spicer was “looking out the window of the

building” when Dorn pulled into the parking lot and parked in time for the meeting

scheduled by Supervisor Turner; that Spicer walked out of the building, opened the door of

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a company vehicle, and “just stood there waiting” in the route where Dorn would necessarily

walk to enter the building; that Dorn therefore waited approximately ten minutes for

someone else to arrive at the facility and voiced his “discomfort with the situation” to

employee Sam Purley when he arrived; and that Purley encouraged Dorn to clock in on time.

The Commission further recounted Dorn’s testimony:

According to the claimant, he was approximately twenty (20) feet from the facility
when he was “met with a baseball bat” wielded by Spicer. The claimant testified that
he did not attempt to return Spicer’s blows or to defend himself; rather, he “tried to
get away because there was an officer there.” The claimant testified that Spicer
continued “attacking” him with the bat as he tried to flee. The claimant described the
bat as small—approximately two-and-a-half (2½) to three (3) feet long—and made of
wood. The claimant stated that he was on the ground when the off-duty police officer
intervened and threatened to taze Spicer if he did not stop.

The Commission then discussed Dorn’s cross-examination testimony regarding the

events leading up to the assault:

[T]he claimant testified that after the arrival of his co-worker on the morning of May
5, 2015, he walked by Spicer even though “something didn’t feel right.” Although the
claimant could not initially recall having spoken to Spicer as he had admitted in
deposition, the claimant later agreed that he spoke with Mr. Spicer on the morning of
May 5, 2015, but he could not recall what he said. Further, the claimant could not
recall who spoke first. Despite his initial safety concerns, the claimant stated that he felt “safe
within myself” eventually walking past Spicer on the morning of May 5th, 2015, due to the fact
that there was an off-duty police officer nearby and he was walking in with a co-worker. The
claimant testified that he walked around the passenger side of Spicer’s truck in order
to avoid him when Spicer suddenly ran towards him with a bat and began hitting him
with it. The claimant hesitated before answering whether he could have waited for his supervisor
to arrive before he entered the building. Eventually, however, the claimant stated that he did not
wait because he did not want to clock in late.

(Emphasis added.)

Next, the Commission discussed the testimony of Robert Terry, who was present at

appellee’s facility the morning of May 5, 2015, and saw Dorn there. The Commission noted

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that although Terry corroborated Dorn’s testimony with respect to the events of the morning,

“Terry did not actually witness the assault” because his “view was blocked when Spicer

allegedly hit [Dorn] with a baseball bat.” The Commission acknowledged Terry’s testimony

on cross-examination that all maintenance employees carried clip-on box cutters.

The Commission acknowledged that Officer Chrisanthia Kendrick had witnessed the

May 5 altercation, had become involved in it, and had arrested Spicer for battery.1 The

Commission summarized her report as follows:

Kendrick stated that the claimant asked for her assistance and she turned to see Spicer
hitting the claimant in the face with a “stick.” Kendrick further stated that the claimant
unsuccessfully attempted to flee the situation, and that Spicer did not stop hitting the
claimant until she threatened to taze him.

Officer Kendrick stated that she arrested Spicer, who then informed her that the
claimant had pulled a knife on him the day before. “Mr. Bruce Spicer stated that Mr.
Leroy Dorn confronted him about cleaning supplies and other personal belongings of
his,” Kendrick stated. Upon speaking with the claimant at the emergency room, he
informed Officer Kendrick that “sometime last week on Thursday, his personal
belongings went missing out of an apartment unit he was cleaning. Mr. Leroy Dorn
stated that he asked other co-workers about his missing personal belongings,” Kendrick
added, then she continued, “Mr. Dorn stated that he asked Mr. Bruce Spicer on
05-05-2015 [sic] about the items and they started arguing with each other. Mr. Leroy
Dorn stated he told his supervisors about the incident and on today they were going
to meet.”

The claimant further informed Officer Kendrick that he and co-worker, Robert
Terry, walked by Spicer’s vehicle on the morning of May 5, 2015, and “spoke to him
as normal.”

We have viewed the evidence above in the light most favorable to the Commission’s

findings and with deference to the Commission’s determination of credibility, the weight to

1
Officer Kendrick did not testify at the hearing, but the parties stipulated to her report
of the incident.

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be assigned, and the resolution of conflicting evidence. Even if the Commission determined

that Dorn pulled a knife on May 4 when he and Spicer argued; that Dorn threatened Spicer

with physical harm, as recounted in other employees’ written statements and as reported by

Spicer to Supervisor Turner on May 4; and that Dorn perhaps spoke inappropriately to Spicer

on May 5 and should have waited to enter the building—none of those findings overcome

the undisputed evidence that the May 5 assault consisted solely of Spicer’s striking Dorn with

the baseball bat.

We hold that reasonable minds could not have found that Dorn was an “active

participant” in the baseball-bat assault, and we reverse the Commission’s finding on this issue.

Because Dorn was not an active participant, his claim is not barred. See Ark. Code Ann. §

11-9-102(4)(A).

II. Whether Substantial Evidence Supports the Commission’s Finding That Dorn Was Not
Conducting Employment Services

An employee is performing employment services when he or she is doing something

that is generally required by his or her employer. Best W. Inn & Union Ins. of Providence v.

Paul, 2014 Ark. App. 520, at 4, 443 S.W.3d 551, 554. We use the same test to determine

whether an employee is performing employment services as we do when determining

whether an employee is acting within the course and scope of employment. Id. The test is

whether the injury occurred within the time and space boundaries of the employment, when

the employee was carrying out the employer’s purpose or advancing the employer’s interest,

directly or indirectly. Pifer v. Single Source Transp., 347 Ark. 851, 857, 69 S.W.3d 1, 4 (2002).

When it was clear that the injury occurred outside the time and space boundaries of

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employment, the critical inquiry is whether the interests of the employer were being directly

or indirectly advanced by the employee at the time of the injury. Id. Moreover, the issue

of whether an employee was performing employment services within the course of

employment depends on the particular facts and circumstances of each case. Jonesboro Care &

Rehab Ctr. v. Woods, 2010 Ark. 482, at 5–6.

We agree with Dorn that he was well within the time and space boundaries of his

employment, arriving on time to clock in for a meeting inside the security gate of his

employer’s campus. There was no dispute that he entered the campus and parked on

appellee’s parking lot, that employees were supposed to clock in by 8:00 a.m., and that he was

required to attend a meeting the same morning to resolve the conflict with Spicer. As Dorn

points out, although his employer knew of the trouble between Dorn and Spicer and knew

that they would arrive by 8:00 in the morning, no member of the supervisory staff had arrived

for work when the attack took place—thus creating a possibly dangerous situation without

anyone present to protect Dorn when he and Spicer arrived to clock in. We reverse the

Commission’s finding that Dorn failed to prove a causal connection between his employment

and the assault of May 5, 2015, and failed to prove that he was performing employment

services at the time of this incident.

III. Conclusion

We reverse the Commission’s denial of Dorn’s claim that he sustained compensable

injuries in the May 5 workplace assault. We do not address Dorn’s entitlement to temporary

total-disability benefits because the Commission, in denying the compensability of the entire

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claim, made no finding on this issue. We remand to the Commission for a determination of

temporary total-disability benefits related to his compensable injuries.

Reversed and remanded.

KLAPPENBACH and HIXSON, JJ., agree.

Daniel A. Webb, for appellant.

Worley, Wood & Parrish, P.A., by: Jarrod S. Parrish, for appellee.