Bryan v. Best Western/Coachman's Inn

John E. Jennings, Chief Judge. Terry Bryan was employed as a maintenance worker and security guard for the Best Western Inn in Magnolia. It is undisputed that he injured the anterior cruciate ligament in his knee while at work on April 6, 1992. The issue before the Commission was whether the injury was compensable. An administrative law judge held that it was and the Commission held that it was not. We reverse the Commission’s decision and remand. At the hearing before the administrative law judge claimant contended that he hurt his knee when he fell while moving a roll-away bed. Soon after the claimant moved the rollaway bed, he got into a fight with a Mr. Robert Ellis. The appellee, Best Western/Coachman’s Inn, contended that claimant’s knee was injured in the fight with Ellis. After hearing the evidence the administrative law judge stated: Although there were numerous inconsistencies in the testimony, I found the claimant to be a credible witness. I conclude that he has shown by a preponderance of the evidence that his knee injury occurred during the bed moving incident. Even if the respondent had been correct in his contention that the injury-resulted from the altercation, I would conclude that the altercation resulted from the failure of Mr. Ellis to vacate the premises as requested by the claimant. It appears therefore that a causal connection existed between the claimant’s employment and the altercation since he was in the performance of his security duties as instructed by his employer. In reversing the law judge’s decision the Commission stated: After reviewing the evidence in this case impartially, without giving the benefit of the doubt to either party, we find that claimant has failed to meet his burden of proof. In our opinion, respondent is correct in arguing that the claimant did not injure his knee while pushing the roll-away bed across the parking lot but rather injured his knee in a fight with a third party on the night of April 6, 1992. Claimant now argues on appeal that even if he injured his knee during a fight that it would still be compensable. We disagree. While Robert Ellis was not supposed to be on the premises at that time, the altercation between Ellis and the claimant clearly was the result of personal animosity between the two involving claimant’s failure to reimburse Ellis’ girlfriend for the use of her car. The altercation did not relate to the claimant’s employment. Even the claimant believed the altercation was personal in nature since he did not report it to his supervisor. During his deposition, claimant admitted that he did not report the altercation to his supervisor because it was personal in nature and not related to his employment with respondent. The claimant first argues that the Commission’s finding that he hurt his knee in the fight rather than in moving the rollaway bed is not supported by substantial evidence. We disagree. This was purely a question of fact. The Commission was not obliged to believe the testimony of the claimant nor to credit the history he gave to his doctors. See Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983). Furthermore, the Commission is not required to consider the credibility findings of the law judge who actually saw and heard the witnesses testify. Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). Appellant also argues, however, that even if his injuries occurred during the fight with Ellis they were compensable. We agree. In order to be compensable an injury must arise out of and occur in the course of the claimant’s employment. See § 11-9-102(4) (1987). There is no dispute that the injury here occurred while the claimant was in the “course of his employment.” The issue is whether it arose out of his employment. The legal principle involved here is that an assault arises out of the employment either if the risk of assault is increased by the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the work. Westark Specialties, Inc. v. Lindsey, 259 Ark. 351, 532 S.W.2d 757 (1976); San Antonio Shoes v. Beaty, 28 Ark. App. 201, 771 S.W.2d 802 (1989); 1 Arthur Larson, The Law of Workmen’s Compensation § 11 (1993). In the case at bar the Commission found that the origin of the quarrel between the claimant and Ellis was personal in nature. On this record that finding of fact is supported by substantial evidence, but regardless of the origin of the quarrel the injury resulting from the assault is compensable if the risk of assault is increased by the nature of the work. See Westark Specialties, Inc. v. Lindsey, 259 Ark. 351, 532 S.W.2d 757 (1976). The test is an alternative one and the satisfaction of either condition will render injuries received as the result of an assault compensable. Here the Commission found that “the altercation did not relate to the claimant’s employment.” This finding is not supported by substantial evidence. There is no dispute as to the critical facts. The “origin of the quarrel” between the claimant, Bryan, and Robert Ellis was a dispute about whether Bryan was obliged to pay Fannie Timmons for borrowing her car. Ms. Timmons was a night clerk at the motel and Ellis’s girlfriend. On the evening of April 6, 1992, Bryan was in a service closet looking for a pillow when Ellis appeared. They had a discussion about Fannie Timmons. According to Bryan he told Ellis to leave the property, that he was trespassing, and that Bryan was going to call the police if he did not leave the closet. According to Ellis, Bryan told him that he had “better leave or he was going to call the law on him.” The fight ensued. Hubert Sullivan, the owner of the motel, testified that Mr. Bryan had security duties, and that he had instructed Bryan that if Mr. Ellis was seen on the property he would be trespassing and Bryan was to tell him to leave. He also testified that if Bryan observed a disturbance of some sort, he “was to try and handle that problem.” In this case it is clear that the risk of assault was increased by the nature of the claimant’s work. The Commission’s opinion does not display a substantial basis for the denial of compensability. Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). Reversed and Remanded. Mayfield, J., concurs. Robbins and Cooper, JJ., dissent.