Richard Kimbell v. Association of Rehab Industry and Business Companion Property and Casualty

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-212

DIVISION IV

RICHARD KIMBELL

APPELLANT

V.

ASSOCIATION OF REHAB INDUSTRY and BUSINESS COMPANION PROPERTY and CASUALTY

APPELLEES

CA05-212

November 16, 2005

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[F305741]

AFFIRMED

Robert J. Gladwin, Judge

Appellant Richard Kimbell sustained injuries on May 27, 2003, when he fell off a porch at his workplace following an alleged altercation with Stanley Minor. The administrative law judge ("ALJ") found that appellant had proved that he sustained a compensable injury and that he was entitled to all medical treatment reasonably necessary in connection with the compensable injury. The Workers' Compensation Commission ("Commission") reversed the ALJ's decision based on its finding that appellant did not sustain a compensable injury because he was not performing employment services at the time of his accident and because his injury was idiopathic in nature. Appellant argues that there is no substantial evidence to support the Commission's opinion. We affirm.

On May 27, 2003, Stanley Minor was at the Ross Center in Camden, appellant's workplace, to get some information about his social security disability benefits and to inquire about a "ticket to work" that he had received. Minor was leaving the building to retrieve some paperwork from his vehicle when he saw appellant standing on a porch off the

building. Minor approached appellant and spoke with him for a few minutes about the "ticket to work." According to Minor, he and appellant had finished talking, and he proceeded on his way to his vehicle. When Minor returned with the paperwork, he passed the porch again and saw appellant lying in the mud. Minor helped appellant to his feet and brought a chair outside at appellant's request. According to Minor, appellant said, "I'm tired. Thanks a lot. I'm tired. I sure thank you."

Robin Heard, who worked with appellant at the Ross Center, learned of the accident from a client. She went outside and saw appellant kneeling as if he were trying to pull himself up off the ground. She stated that Minor had been in her office earlier and had become angry at her because she could not help him. She said Minor had been in such an agitated state that he threw some paperwork on her desk. Heard testified that, following the fall, appellant's speech was slurred but that he mentioned that he had been talking to a man when the accident occurred.

Paige Davis, another one of appellant's coworkers with whom he shared office space at the Ross Center, testified that prior to the accident, appellant told her he was going outside to smoke a cigarette and would be back in a few minutes. Davis learned of the accident from Heard and went outside to help appellant. Davis could not understand what appellant was trying to say at first because his speech was slurred. When she finally began to understand him, he mentioned that he was talking to somebody and then fell.

Appellant worked at the Ross Center as an employment specialist and helped people with disabilities find jobs. On the morning of the accident, appellant left his shared office space to go to the restroom and then outside to smoke a cigarette. Appellant walked out onto the porch to smoke and saw Minor walking on the sidewalk with a handful of papers. Minor, whom appellant testified appeared "madder than hell," approached him with questions aboutthe paperwork. Appellant testified that he saw among the papers a "ticket to work" and a business card belonging to a coworker, so he assumed that his coworker had sent Minor to him as a client. Appellant explained to Minor that the "ticket to work" meant that he would not receive his disability check. Minor kept saying "no" and became even more irritated. Appellant tried to sort through the papers, but Minor jerked them away. Minor kept stepping toward him and then away, and appellant testified that he was afraid of what Minor might do. According to appellant, Minor stepped toward him for perhaps the third time"still flapping them papers" and that he stepped back and "right in[to] that darn hole." Upon examination by the ALJ, appellant said:

As soon as I exited these doors I met Mr. Minor right here. We danced around on the porch there for a while and I kept coming this way, kept coming to my right because I knew if my back was up against this wall I did not have anywhere to run .... He would walk away and come back .... It looked like the last time he meant business, so I was a gone goose. I stepped back in this hole and I fell ....

Appellant described the hole as a washed-out area about three-feet long and about one-foot deep. He stated that after he fell, Minor bent over him and continued to talk about his benefits but that Minor eventually helped him. When an ambulance arrived, appellant told the paramedics that he had stepped backwards off of the porch and fallen. At the emergency room, appellant told the hospital personnel that he had fallen backwards off of a concrete slab at work.

Following his visit to the emergency room, Dr. Dan Martin's medical records indicated that appellant reported having become "quite dizzy" before he fell. He noted that appellant had symptoms of sleep apnea in that he had to chew ice to stay awake while driving from Magnolia to Camden; he awakened in the morning feeling fatigued; and he fell asleep during meetings and while talking to people. Dr. Martin noted that, "[Appellant] has neverhad syncope1 in his life prior to this." He reported that appellant's past history included high blood pressure and hyperthyroidism and that appellant did not take any of his medications regularly. Dr. Martin's impression included a "fall, possible TIA [transient ischemic attack], possible sleep apnea," and his final diagnosis upon discharge was "probable sleep apnea." On June 10, 2003, appellant followed up with Dr. Patrick Antoon, his regular physician, who also diagnosed sleep apnea. In a report dated June 19, 2003, Dr. Antoon stated:

This fall was [an] accident and not induced from a TIA or syncope. He had no TIA or syncope symptoms or signs. This man tripped and fell.

In its opinion, the Commission found that appellant's injury did not occur while he was performing employment services in that appellant was not engaged in an activity that carried out his employer's interest when he chose to step outside for a smoke break. The Commission found that, even if Minor had asked appellant work-related questions, Minor did not have an appointment with appellant and was not appellant's authorized client. The Commission further found that Minor imposed himself on appellant and that appellant attempted to answer his questions possibly out of fear. In any event, appellant chose to address Minor's questions while he was taking a break. The Commission found that, although Minor's testimony was difficult to follow, he consistently denied being on the porch with appellant when he fell. The testimony also showed that appellant was confused and disoriented after the fall and that, although appellant mentioned having spoken to a man on the porch, he did not say that the man had caused the accident. The Commission found that appellant's account of the details of the accident had changed over time. Moreover, the Commission found that the testimony from Heard and Davis was of little probative value because neither coworker witnessed the accident or the events leading up to it. Regardingthe nature of the accident, the Commission gave greater weight to Dr. Martin's opinion because his reports were prepared contemporaneously with appellant's accident. On the other hand, the Commission found that Dr. Antoon's opinion that appellant's fall was not related to TIA or syncope was not supported by objective medical findings. Therefore, the Commission found that the weight of the credible evidence supported a finding that appellant's fall was idiopathic in nature and origin.

In reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commission's findings and affirm if supported by substantial evidence. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). Substantial evidence exists if reasonable minds could have reached the same conclusion. Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996). The determination of the credibility and weight to be given a witness's testimony are within the sole province of the Commission. Daniels v. Ark. Waffles, Inc., 83 Ark. App. 106, 117 S.W.3d 653 (2003).

Appellant argues that the Commission "clearly erred" in finding that he was not performing employment services at the time of his injury because, although he initially started his break for personal reasons, the situation changed once he got onto the porch. Appellant contends that he was then confronted by an angry client and was attempting to answer work-related questions at the time of the accident.

A compensable injury is defined, in part, as an accidental injury "arising out of and in the course of employment." Ark. Code Ann. § 11-9-102(4)(A)(i)(Supp. 2001). A compensable injury does not include an injury "inflicted upon the employee at a time when employment services were not being performed." White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999); Ark. Code Ann. § 11-9-102(4)(B)(iii). We have held that an employee is performing "employment services" when he or she is doing something that is generally required by his or her employer. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002)(citing Ray v. University of Ark., 66 Ark. App. 177, 990 S.W.2d 558 (1999)). We use the same test to determine whether an employee was performing "employment services" as we do when determining whether an employee was acting within "the course of employment." White, supra. 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." Collins v. Excel Specialty Prods., 347 Ark. 811, 69 S.W.3d 14 (2002).

We agree with the Commission's conclusion that appellant was not performing employment services at the time of his fall. We note that the Commission gave greater weight to Minor's testimony than it did to appellant's testimony or that of his witnesses, and the Commission was entitled to make that determination. See Daniels, supra. Not only did the Commission doubt appellant's version of how the accident occurred, it appears as though the Commission did not believe appellant's testimony that, at the time of the accident, he thought Minor had been referred to him by a coworker and was thus a client. Appellant chose to answer Minor's questions, whatever the content, while he was on a smoke break, and he did so, not out of obligation to his employer and in furtherance of his employer's interests, but out of fear and in an attempt to pacify Minor. We affirm because the Commission's opinion displays a substantial basis for the denial of relief.

Appellant also argues that there was no substantial evidence to show that his fall was an idiopathic injury. An idiopathic injury is not compensable because it is personal in origin, and accordingly would not arise out of and in the course of employment. Little Rock Convention and Visitors Bur. v. Pack, 60 Ark. App. 82, 959 S.W.2d 415 (1997). Because there was substantial evidence to support the Commission's finding that appellant was notperforming employment services at the time of his injury, we do not address appellant's second point on appeal. See Daniels, supra.

Affirmed.

Robbins and Baker, JJ., agree.

1 Syncope is a loss of consciousness and postural tone caused by diminished cerebral blood flow. Stedman's Medical Dictionary 1720 (26th ed. 1995).