HAC, INC. v. BOX

HAC, INC. v. BOX
2010 OK 89
Case Number: 107786
Decided: 12/14/2010

THE SUPREME COURT OF THE STATE OF OKLAHOMA

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

HAC, INC., d/b/a HOMELAND STORES, and ASSOCIATED WHOLESALE GROCERS, INC. (OWN RISK # 19048), Petitioners,
v.
ROBERT SHANE BOX and THE WORKERS' COMPENSATION COURT, Respondents.

ON WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS, DIVISION IV

¶0 Robert Shane Box injured his arm in an incident with a co-worker at the Homeland grocery store in Madill, Oklahoma. Box filed a workers' compensation claim. Homeland asserted the cause of the injury was "horseplay." The trial judge of the Workers' Compensation Court found Box was an innocent victim of the horseplay and awarded Box disability benefits. A three-judge panel of the Workers' Compensation Court affirmed. Homeland appealed. The Court of Civil Appeals affirmed the three-judge panel's order. We previously granted Homeland's petition for writ of certiorari.

OPINION OF THE COURT OF CIVIL APPEALS VACATED;
ORDER OF THE THREE-JUDGE PANEL OF THE
WORKERS' COMPENSATION COURT VACATED;
CAUSE REMANDED TO THE THREE-JUDGE PANEL
OF THE WORKERS' COMPENSATION COURT
WITH INSTRUCTIONS TO DENY THE CLAIM.

Charles G. Braun, B. Clark Taylor, Oklahoma City, Oklahoma, for petitioners.
W.C. Doty, Norman, Oklahoma, for respondents.

TAYLOR, V.C.J.

¶1 The dispositive question presented in this appeal is whether the Workers' Compensation Court erred in finding the claimant was an innocent victim of "horseplay." We conclude that the trial judge's finding of fact that Robert Shane Box was an innocent victim in the January 22, 2009 horseplay incident is not supported by competent evidence. We hold the three-judge panel erred as a matter of law in finding that the trial judge's order was not against the clear weight of the evidence.

I. Facts and Proceedings

¶2 Robert Shane Box (Box) stocked shelves at the Homeland grocery store in Madill, Oklahoma. On January 22, 2009, seventeen year old Box injured his right arm in a scuffle with a co-employee at the Homeland store.

¶3 Box filed a workers' compensation claim alleging injury to his right arm and elbow arising out of and in the course of employment on January 22, 2009. The employer, HAC, Inc. d/b/a Homeland (Homeland), denied that the claim arose out of Box's employment and asserted that the cause of the injury was "horseplay."

¶4 The trial judge of the Workers' Compensation Court conducted an evidentiary hearing on Box's claim for benefits for temporary total disability, permanent partial disability, disfigurement, and continuing medical maintenance. The trial judge heard testimony from only one witness, the claimant Box. Describing the injurious incident on direct examination, Box testified that he and an assistant manager were bringing the products to the front of the shelves and aligning them, referred to as facing the shelves, on aisle 10; a co-worker, Jonathan Glenn, who was working on aisle 9, came to the end of aisle 10 and threw a roll of toilet paper at Box which hit his head; the assistant manager told Box to forget it and don't worry about it; Box ran to the co-worker on aisle 9 and yelled his name; Box and the co-worker engaged in a scuffle; the co-worker put his arms around Box from behind; as Box struggled to get away from the co-worker, his feet became tangled with the co-worker's feet; both the co-worker and Box fell to the floor on top of Box's right arm; and the fall seriously injured Box's right arm and elbow. Another Homeland employee drove Box to the emergency department at Integris Marshall County Medical Center where he was referred to Norman Regional Hospital. Box underwent surgical treatment for his fractured right arm at Norman Regional Hospital, and he had physical therapy in Ardmore, Oklahoma.

¶5 The trial judge admitted into evidence the medical reports offered by Box and Homeland. Medical documents put into evidence by Homeland indicate that Box told the medical providers that he was rough housing and just messing around with a co-employee when he injured his right arm and elbow. The two medical reports admitted into evidence concluded Box had been temporarily disabled from the time of the incident until April of 2009, and one concluded Box had 7% permanent impairment to his right arm while the other concluded Box had 47% permanent impairment.

¶6 The trial judge found that "claimant (from evidence) was an innocent victim and therefore excused from

II. Standard of Review

¶7 A trial judge of the Workers' Compensation Court may award workers' compensation benefits based upon a preponderance of the evidence.

III. The "Horseplay" Rule

¶8 An employer is generally required to pay workers' compensation benefits for injury sustained by an employee that arises out of and in the course of the employment.

¶9 Our early jurisprudence determined that injury caused by willful prankish behavior of employees at the work site does not "arise out of employment." Willis v. State Indus. Comm'n,

¶10 In 1997, the Legislature codified the "horseplay rule" and implicitly rejected the presumption that an injury resulting from horseplay "arises out of employment." 1997 Okla. Sess. Laws, ch. 361, §§ 1 and 5. The "horseplay rule" is set out in

A. Every employer subject to the provisions of the Workers' Compensation Act shall pay . . . for the disability or death of an employee resulting from accidental personal injury sustained by the employee arising out of and in the course of employment, without regard to fault as a cause of such injury, and in the event of disability only, except as follows:
. . .
4. Except for innocent victims, an injury caused by a prank, horseplay, or similar willful or intentional behavior.

The burden of proof is set out in

¶11 This Court has not decided in a published opinion what proof will support a finding that an injured worker was an innocent victim of horseplay under the 1997 amendments. Our latest opinion addressing injury caused by work place horseplay adhered to our early jurisprudence without mention of the 1997 amendments. Canida v. Technotherm,

¶12 Doubtless the 1997 legislative codification of the "horseplay rule" came in response to this Court's opinion in Darco Transportation v. Dulen,

IV. The Evidence

¶13 The Workers' Compensation Court, as the trier of fact, determines the credibility of witnesses, weighs the evidence, and draws reasonable inferences from the facts and circumstances in evidence. Terry Motor Co. v. Mixon,

¶14 On certiorari, Homeland argues that Box's testimony proves he voluntarily participated in the horseplay and that there is no competent evidence showing that Box was an innocent victim of his co-employee's horseplay. Homeland further argues that all the facts in this case came directly from the injured employee's testimony, that he admitted he was injured due to his rough housing, and that there was no evidence supporting the Court of Civil Appeals' inference that Box was trying to escape from his co-employee's horseplay. Having carefully perused the evidence in the appellate record, we agree with Homeland for the reasons set out below.

¶15 The fact that the injurious incident was horseplay initiated by a co-employee is not disputed, and the facts and circumstances of the horseplay incident are not in dispute. Box testified, on direct examination, at pages 11 through 15 of the transcript of trial proceedings had on August 13, 2009, before the Honorable Bob Lake Grove, about the horseplay incident:

A. We were facing on aisle 10 and Jonathan Glenn, employee, came over to the aisle and he threw a toilet paper roll and that's when I ran over there but my manager, my assistant manager, Rhett he said for me to not worry about it.
And when I ran over there that's when he - Jonathan grabbed me and he flipped me around and that's when our feet got tangled up and we fell over.
Q. When you fell over, did you extend a body part?
A. I put my arm out. That's when the injury happened.
. . .
Q. Now let's go back up a little bit and clear some things up. You were facing one aisle with your general or assistant manager?
A. Assistant manager.
Q. And what's his name?
A. Rhett.
Q. Is he here today?
A. No.
Q. So you're in the aisle with him and this Jonathan comes around the corner and throws something at you?
A. Yes.
Q. Did he hit you?
A. Yes.
Q. Was it hard?
A. No.
Q. So you left the aisle and went to the aisle where he was?
A. Yes.
Q. Did you touch him?
A. No.
Q. Did you say anything to him?
A. I yelled his name and ran over there to him.
Q. Now when you got to that aisle and you said something to him, whether it's his name or something else, did he grab you or did you grab him?
A. He grabbed me.
Q. How did he grab you initially?
A. He put his arms around me like that. (Indicating)
Q. And did he somehow get you twisted around?
A. Yes.
Q. How did he get you twisted around? How did your body end up being before you fell?
A. My back was against his stomach.
Q. He kind of had you in a bear hug backwards?
A. Yes.
Q. Is he bigger than you?
A. Yes.
Q. Is he taller or is he just thicker?
A. He's not taller but he's thicker.
Q. Is he older than you?
A. No.
Q. You guys are about the same age?
A. He's a year under me.
Q. In school?
A. Yes.
Q. You have to speak up just a little louder. You are starting to get quieter again. When he had you in a bear hug, your back is to his stomach. Correct?
A. Yes.
Q. Did you try and get away from him?
A. Yes.
Q. Were you worried about how hard he was squeezing you?
A. He had me pretty tight and he was shaking.
Q. So he shook you?
A. Yes.
Q. When you were trying to get away from him, what happened with your feet?
A. They wrapped around and we both just fell. We both fell on my arm, both of our weight.
Q. Did he fall on to you as well?
A. Yes.
Q. So it was a combination of you and him falling on to your arm?
A. Yes.
Q. If it weren't for him grabbing you and shaking you, would you have fallen?
A. No.

¶16 On cross-examination, Box again repeatedly testified that he had abandoned his assigned work and was messing around with a co-employee when the injury occurred. At pages 24 and 25, Box testified:

Q. Now after Mr. Glenn threw the toilet paper your assistant manager, Rhett Jones, was present.
A. Yes.
Q. In fact, he was present at the time that this incident started. Correct?
A. Yes.
Q. And he told you to let it go and not make trouble. Correct?
A. Yes.
Q. Those were his words?
A. Yes.
Q. Your assignment at that point and time was to continue to face the shelves. Correct?
A. Yes.
Q. And continue to face the shelves in aisle 10. Correct?
A. Yes.
Q. Instead you disregarded what the assistant manager said and you ran to aisle 9 after Jonathan Glenn. Correct?
A. Yes.
Q. Now, when you ran after him you weren't mad, were you?
A. No.
Q. And he wasn't mad.
A. No.
Q. I think you said at the deposition that you were just messing around. Is that correct?
A. Yes, I wasn't mad at him.
Q. You were just - you used the term "I was just messing around". Correct?
A. Yes.

At page 26, Box testified:

Q. And isn't it true that on your MySpace page and on their MySpace page, however that works, you told some of your friends that this accident happened when you were roughhousing and wrestling. Correct?
A. Yes.

At page 28, Box testified:

Q. The truth of the matter is you left your work station to mess around with a friend. Is that correct?
A. Yes.

At page 33, Box testified on recross examination:

Q. You went to aisle 9 to, as you stated at the deposition, mess around with your friend. Correct?
A. Yes.

¶17 This undisputed testimony shows that once the co-employee initiated the horseplay by throwing the roll of toilet paper, Box left his work station against his supervisor's instruction and actively joined in the horseplay by pursuing the co-employee. Box's testimony that he tried to get away from the co-employee's bear hug is not proof that Box's only involvement in the horseplay was exclusively directed at escaping or avoiding the horseplay. From Box's testimony, his behavior can only be viewed as voluntary participation in horseplay that was wholly independent of and disconnected from his employment duties. There is nothing in Box's testimony that would give rise to an inference that Box was an innocent victim in the horseplay.

¶18 The documentary evidence supports the testimony that Box voluntarily participated in the horseplay initiated by his co-employee. The medical report that Box offered in support of his claim stated that Box told the medical examiner that his arm was injured when a co-worker tripped him and they both fell on top of his right arm. In addition to a medical report, Homeland submitted the intake form that Box completed when he was first examined at the medical center in Marshall County and the Norman Regional Hospital emergency department's notes. On the intake form, Box, in his own words, wrote:

Me and some employees were fasing on isle 10 when Jonathen Glenn, an employee, had thrown a roll of paper towel at me. He was on isle 9 I guess, and had come to the end of isle 10 when he had thrown it. My assistant grocery manager (Rhett) was there by me and had said something like "Don't worry about it" or "Don't do it." I then went to isle 9 where he was and that's where we were rough housing with each other when he had grabbed me and we tripped over each other causing the accident on my arm.

The Norman Regional Hospital emergency department report for the three days following the incident, January 23 - 26, 2009, stated:

HISTORY OF PRESENT ILLNESS: The patient is a 17-year-old male with a past medical history that is grossly negative that presents as a transfer from Madill with concerns of a right supracondylar open fracture. States that [it] occurred about 10 o'clock this evening, that he was at work and was messing around with one of [his] friends prior to close, and they tripped and fell. . . .

¶19 We have canvassed the entire record for evidence that supports the trial judge's finding that Box was an innocent victim of a co-employee's horseplay. Box presented no evidence to show he did not voluntarily engage in the horseplay. Those who witnessed the horseplay incident were not called to testify, such as the assistant grocery manager who was working at aisle 10 with Box when the horseplay began nor any other Homeland employee. Near the time of the injury, Box stated that he was rough housing with a co-employee when he was injured. At trial, Box testified that he left his work station and pursued the co-employee. We have no conflicting evidence from which reasonable people can draw an inference that Box was an innocent victim of his co-employee's horseplay. We conclude that the trial judge's finding of fact that Robert Shane Box was an innocent victim in the January 22, 2009 horseplay incident is not supported by competent evidence. We hold the three-judge panel erred as a matter of law in finding that the trial judge's order was not against the clear weight of the evidence. Because there is no proof that Robert Shane Box was an innocent victim injured by his co-employee's horseplay, Box's injury is not compensable under the workers' compensation statutes and his claim must be denied.

OPINION OF THE COURT OF CIVIL APPEALS VACATED;
ORDER OF THE THREE-JUDGE PANEL OF THE
WORKERS' COMPENSATION COURT VACATED;
CAUSE REMANDED TO THREE-JUDGE PANEL
OF THE WORKERS' COMPENSATION COURT
WITH INSTRUCTIONS TO DENY THE CLAIM.

Edmondson, C.J., Taylor, V.C.J., and Hargrave, Kauger, Watt, Winchester, and Reif, JJ., concur.

Colbert, J., dissents.

FOOTNOTES

1 In an appeal from an order, decision, or award entered by the Workers' Compensation Court, the appellate courts review questions of law . 85 O.S.2001, §§ 3.6(C) and 26(B). Section 26(B) provides that an order, decision, or award entered on an employee's claim by the Workers' Compensation Court shall be final as to all questions of fact, and except as provided in § 3.6, it is final as to all questions of law. Section 3.6(C) provides that an order, decision, or award entered by the Workers' Compensation Court is final and conclusive upon all questions within its jurisdiction unless an action is commenced in this Court to review such order, decision, or award. Effective November 1, 2010, the Oklahoma Legislature added the following pertinent language to § 3.6(C):

The Supreme Court may modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds:
. . .
4. The order or award was against the clear weight of the evidence.

2010 Okla. Sess.Laws, ch.403, § 1.

2 Although 85 O.S.2001, § 11 has been amended, there has been no change to the "horseplay" rule in § 11(A)(4).

3 Although 85 O.S.2001, § 1.1 has been amended, the burden of proof language has not been changed.