Opinion
CLAIM NO. F013748
OPINION FILED AUGUST 21, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by HONORABLE BILL WALMSLEY, Attorney at Law, Batesville, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal from a decision by the Administrative Law Judge which found in relevant part that the claimant proved by a preponderance of the evidence that he sustained compensable injuries, including a ruptured eardrum, as a result of an assault by a co-worker, and that the claimant was entitled to temporary total disability from August 15, 2000, through September 25, 2000, and from October 12, 2000, through November 1, 2000. After conducting a de novo review of the entire record, we affirm the Administrative Law Judge's decision.
The claimant, a resident of Seymour, Indiana, is 45 and has a 12th grade education. He had been employed as a truck driver for the respondent since 1993, and had been serving as a driver-trainer for the past two to four years as well. On the date of the alleged assault, the claimant was driving with trainee Benjamin Pete. The claimant initially testified that he and Pete had been training for two to three weeks prior to that date, and that Pete was about to complete the apprenticeship program. However, on cross-examination he agreed that Pete had been in training with him for only eight or nine days prior to the incident, and that two of these days were spent resting at the claimant's house in Indiana.
The two men began their trip in Tontitown, Arkansas. The claimant testified that several altercations occurred between he and Pete during the training. The first occurred between July 5th and 8th, on the road near Louisville, Kentucky, when he and Pete had a verbal argument regarding Pete's driving, and they had "a little push and shove match" in the parking lot of a truck stop. The second altercation is the alleged assault at issue.
The claimant testified that Pete had been driving for approximately an hour and a half on July 15th when he exited the freeway in Moshcia, Tennessee, to get a Coke and a candy bar. Unfortunately, the exit Pete chose did not have facilities for tractor-trailers. The claimant was critical of Pete's decision and an argument ensued. The claimant's testimony was as follows:
[Pete] started getting a little irate. And we've had one clash prior. He flips a U-turn . . . with oncoming traffic coming right over a little ridge. And I became a little testy about it. And I said, "Not a real smart move." Did not cuss the boy. I said, "There is a time and place you may have to do this, but you better pick a lot better situation." And it was getting a little hostile in the truck. . . .
So when we pull into the fuel stop, he just bales out of the truck and tells me, "You F'in drive the thing." So I jump out of the passenger seat into the driver's seat, and I thought, "Wait a minute. I'm 5'11", not half his size." I locked the doors, pulled off about a mile out of the truck stop to back up everything that had happened. I sent it all by Qualcom satellite. . . .
After I pulled off to get away from him. Because he had lost his cool. And that was the second time we've seen this. To back it up with the company what all transpired. Pull back probably five to 10 minutes later. He tried to run out in front of the truck. And as I tried to pull back into the truck stop and had to put the trailer off in the ditch. . . . He jumps up on the running board and starts beating on the window like he's trying to break it in. And tells me, "You don't know what I'm all about. I'll take care of you," . . . So I picked up my cell phone, left the truck still locked, middle of the parking lot. I called 911. . . .
. . . I told them a quick summary of the situation, that we've had an altercation between us and it's getting physical, he's trying to break my window in. . . .
After I made the phone call, I put the phone down. He calmed down a little bit standing on my running board. I opened up the passenger door to let him in. I didn't know how this was going to come out, but maybe we can discuss it, whatever. As I tried to back in away from the fuel island and other truck traffic, he keeps setting the brakes on me, somewhere between four and seven times while I'm trying to move the truck, which threw me into the steering wheels to the left side of the rib and groin area. And then I'd release the brakes and try to get out of the fuel island's way again, and then me and him would be struggling. And at one point we have a Qualcom keyboard — in layman's terms, probably the equivalent of a laptop computer. . . .
He picked it up, and I would assume he sailed it with his left hand. . . . He sends the satellite keyboard flying, and I got struck with it. . . . In the right eye to ear, temple, side face area.
The claimant testified that when the police arrived, they removed Pete from the truck, but did not arrest him. The claimant did not see Pete after that time. An incident report from the Greene County Sheriff's Department dated July 15, 2000, includes the following narrative:
According to both parties a disagreement started over the trainee's driving ability. Wile alleges he was struck by the computer keyboard. Pete stated he had a verbal argument but no physical attack on Wile. Wile had a red spot under his right eye at my arrival. . . . Randy Wile . . . stated he was struck in the face by Benjamin Pete (trainee). . . . Pete and his belongings were left at the above location.
The claimant spent the night in Tennessee before continuing on the next morning. He testified that the next day he called in and asked if there was another driver available to take over the route, "because I just didn't feel good, splitting headaches and just still somewhat shook up." He stated that he was directed to continue on to Ashland, Virginia. He testified that prior to leaving Virginia he asked dispatch to put him on a route which would take him through Indiana so that he could go to his family doctor. The claimant is diabetic and goes once a month for a check-up, and he testified that he was still not feeling good, as well. From Virginia, the claimant was sent on alone to drive a load to Tyler, Texas, and from there was supposed to drive back to Connecticut. The last leg of this route would apparently take the claimant through Indiana. The claimant related that on route in Longview, Texas, he suddenly went deaf in his right ear and had fluid and dried material running out of the ear. He sought treatment at an emergency room there, and stated that he was treated for infection in his ear. Afterward he was directed by dispatch to return to Tontitown. When he arrived there, the claimant was relieved of the load that he was bringing to Connecticut and was given a 30-day suspension, for "supposedly taking medication that [the respondents] weren't aware of." The claimant explained that he had started taking the antidepressant drug Zoloft back in May. The claimant never drove for the respondent after this suspension.
The distances driven by the claimant were discussed during cross-examination. The claimant testified that from the location of the incident in Tennessee, it was 50 miles to the Virginia line and then it was an additional 350 miles to Richmond. He then went another few miles to Ashland, where he picked up a different trailer and took it to Raphine, Virginia, 70 to 105 miles away. The claimant testified that he thought it was 900 to 1000 miles from Raphine, Virginia, to Tyler, Texas. From Tyler, he drove south to Houston, Texas, 180 to 200 miles away. From Houston, he drove to Marshall, Texas, 200 to 225 miles away. (Longview, where the claimant sought medical treatment is between Houston and Marshall, about twenty miles from Marshall.) The claimant's projected mileage from the location of the incident to the point where he finally sought medical treatment, based on his testimony, comes out to between 1730 and 1910 miles.
The only other witness at the hearing was Benjamin Pete. Pete is 24 and has worked as a truck driver for H. Cole and Sons for the past five months. He testified that he drove 320 miles to be at the hearing, that he was not subpoenaed to be there, and that he came to tell the truth. The respondents paid him $200.00 for travel expenses and paid for his motel room overnight.
Pete testified that when he first met the claimant in Tontitown, the claimant had a red mark under his eye. The claimant told Pete that he had been in a fight, and had "a nice shiner", but it had cleared up. When Pete and the claimant left Tontitown, they initially had a third driver in their truck, and that man drove from Tontitown to St. Louis. Pete stated that the third man drove because the claimant wasn't feeling good and was complaining of drainage problems in his throat, nose, and ears. Pete remarked:
[The claimant] was saying he had earaches and things. You know, he said he had been to the hospital. I'm not sure, but I think around two days or something like that, he — I know he said he had been admitted to the emergency room because the condition was so bad.
Pete drove the truck from St. Louis to Kentucky, where they dropped the third driver off, and then the claimant drove to his home in Seymour, Indiana.
Pete testified that the claimant wanted to go to home so that he could get some rest because he was still sick. He stated that they originally planned on going to the claimant's home for one day, but they ended up staying an extra day because the claimant was still feeling bad. After their stay in Indiana, the two headed to Louisville, Kentucky. Pete stated that during this leg of their trip the claimant was agitated and complained about drainage in his ears and nasal passages and throat. Pete stated that the claimant explained that the reason he was having these problems was that he had been using Sinex nasal spray for several years and had recently quit taking it after a doctor recommended that he stop. When he stopped taking the Sinex, it set off all of his drainage problems. Pete testified that he and the claimant had an altercation in Louisville, Kentucky, and that the claimant tried to evict him from the truck; but eventually the claimant apologized for his short temper. From Louisville, they went to Laredo, Texas, and then turned back east.
It was during this last segment of the trip that the July 15 incident occurred. Pete testified that they were supposed to go up through St. Louis so that he could get some time at home, but they ended up sleeping at a truck stop because the claimant was still not feeling well and was having problems with drainage and earache. Pete suggested that the claimant illegally made entries in their log book in pencil and made changes to the log book to enable them to drive longer hours than they should have. He testified that the reason he pulled off the interstate at Moshcia, Tennessee, was to stop driving and get rest because he was falling asleep and the claimant was not helping him stay awake.
Pete admitted that he made a U-turn and that the claimant became upset with him. He stated that their verbal argument escalated and he pulled into a truck stop and got out. He stated that the claimant then began trying to hit him with the truck and then drove off, leaving Pete at the truck stop. Pete testified that the claimant was gone approximately 30 to 45 minutes, and that he was on the phone with the dispatcher explaining the situation, when the claimant returned. He went out to flag the claimant down to ask to remove his belongings from the truck and the claimant tried to hit him again with the truck. Pete testified that it appeared that the claimant was stopping the truck and so he climbed up on the running board to try to get into the cab. At this time, he said that the claimant began starting and stopping the truck, engaging and releasing the brakes to try and throw Pete off of the truck. Pete testified that he made his way into the cab of the truck, and was trying to collect his belongings, when he and the claimant began verbally arguing again. Pete stated that he never touched or hit the claimant in any way while he was in the truck. He testified that the claimant told him that he was going to call the police and tell them that Pete had assaulted him so that Pete would have to spend a night in jail. Pete testified that the only things he touched in the cab were his belongings. The claimant's attorney did not ask Pete any questions on cross-examination.
The claimant was born with a cleft palate. He testified that when he was a child he experienced problems related to this defect, but he had the bone structure surgically restored and experienced no problems past age 11. The claimant had been told that having a cleft palate makes sinus problems a life-long issue, and he stated that had been consistent with his experience. He stated he had sinus problems the last 20 years of his life, but testified that he had never experienced the pain, hearing loss, and headaches he experienced after July 15, 2000, prior to that time.
The exhibits included a letter dated November 22, 1999, from Dr. Sanders (who practices with Dr. Porter, the physician who would ultimately perform surgery on the claimant's ruptured eardrum) to the claimant's family physician. Dr. Sanders wrote:
. . . [The claimant] has had chronic nasal obstruction for years. He has a history of a cleft palate and has undergone repair of this. . . . When his [sinus] drainage occurs, he usually gets sore throat associated. His nasal drainage is yellow, sometimes clear and copious. He gets headaches in the medial canthus area extending to the ears. . . . His exam reveals diffuse retraction of his TM's which is mild. . . . Anterior rhinoscopy reveals a severe septal deformity with complete obstruction of the right nostril.
Dr. Sanders concluded by recommending surgical treatment, because of the high grade of obstruction the claimant was experiencing.
The next medical treatment documented in the record was received by the claimant in Laredo, Texas, on July 3rd and 5th, 2000. A note from a physical exam dated July 3, 2000, by Dr. Pellegrin states that the claimant complained of cough with phlegm, fever on and off, and runny nose. In a note dated July 5, 2000, Dr. Garcia noted that his exam revealed yellowish post nasal drip, and he wrote:
[P]atient complains of 3 to 4 week history of recurrent sinus headaches after stopping Sinex for nasal congestion. per (sic) patient he has been using Sinex for the past 23 years an (sic) abruptly stopped using it.
The alleged assault occurred on July 15, 2000. The claimant stated that after the altercation his ear was sore, but he had no complaints involving the inner part of his ear on that date. He testified that up until he arrived in Marshall, Texas, he did not have any ear problems. It was while he was in Marshall, on July 22, 2000, that the hearing loss occurred, and he sought medical treatment. No record of this treatment was admitted into evidence.
The claimant saw his family physician, Dr. McGill, after he returned home, on July 25, 2000. Dr. McGill's progress note for this visit stated that the claimant gave a history of being hit on the right side of his head with the equivalent of a laptop on July 15, 2000, that his jaw popped four days later, that an emergency room in Longview, Texas, told him that he had a ruptured and infected TM, and that he could not hear out of his right ear. (Longview, Texas, is adjacent to Marshall, Texas.) Dr. McGill's examination of the claimant's right ear revealed, "TM perforated, TM mildly infected". He also noted that the claimant's throat was mildly infected.
There is an emergency room note from the Memorial Hospital in Seymour, Indiana, dated August 7, 2000, which states that the claimant was involved in a motor vehicle accident on August 6, 2000, and was experiencing pain in his head. The note states that the claimant complained of nosebleeds and pulsating pain on the left side of his face. Apparently, the claimant did not give the emergency room any history of his on-going situation with his right ear, as the space for ear pain on review of symptoms checklist is not marked. An emergency room department note prepared by Dr. Tomey on August 8, 2000, further stated that the claimant's right TM appeared scarred.
Dr. McGill referred the claimant to Dr. Porter, an ear, nose and throat specialist. Dr. Porter's notes regarding his visit with the claimant on August 28, 2000, reflect that the claimant suffered from a right TM perforation and gave a history of being injured during an assault. In a letter to Dr. McGill, Dr. Porter gave this information and also related that the claimant, "has cleft palate anomaly and bilateral eustacian tube dysfunction with longstanding tympanic membrane retraction." Dr. Porter's clinic notes show that the claimant called his office to request pain medication four times during the course of his treatment.
On October 12, 2000, Dr. Porter performed a right tympanoplasty (surgical reconstruction of the hearing mechanism of the middle ear, with restoration of the ear drum membrane)with mastoidectomy, ossiculoplasty. His preoperative diagnosis of the claimant states:
1. Right chronic otitis media with perforation.
2. Severe atelectasis, marked drum retraction and adhesion.
Right conductive hearing loss with associated sensorineural loss.
A discharge summary on the claimant following this procedure dated October 14, 2000 states that:
He was struck in the right ear, producing a perforation, collapsing the tympanic membrane, and dislocating the long and lenticular process of the incus. He sustained both a conductive and sensorineural hearing loss in the ear.
Following this surgery, the claimant was released by his doctors to go back to work November 1, 2000. On November 9, 2000, the claimant began driving with Crete Carriers out of Lincoln, Nebraska. To begin his new job with Crete, he passed a physical given to him by a company doctor with that trucking company.
The claimant testified that he physically could have driven a truck after the 30-day suspension by the respondents (which would have been on or about August 23, 2000). However, he also testified that he was taken off work on July 27, 2000, by Dr. McGill because of his ruptured ear drum, and that it was the loss of hearing in his ear that kept him from working from July 27 onward. He stated that he had not lost any time since he had been back at work, but was still experiencing loss of hearing and headaches and discomfort with the scar.
In the present case, the Administrative Law Judge specifically found claimant was credible and that Pete's testimony "lacks credibility" and "is not believable." Respondent attaches significant weight to each and every apparent discrepancy in the record. However, after a careful and impartial review of the entire record, we find that claimant has met his burden of proof by a preponderance of the evidence for the following reasons.
The claimant's testimony (which the Administrative Law Judge found credible), the contemporaneous police report, and the contemporaneous medical reports, all support our conclusion that on July 15, 2000, Pete assaulted claimant by hitting him on the right side of the head with the Qualcom keyboard, which is similar to a laptop computer. The only relevant medical opinion in the record supports our finding that this resulted in a punctured eardrum and a fractured incus, a small bone in the inner ear, entitling claimant to benefits for medical treatment and temporary total disability as awarded by the Administrative Law Judge.
Respondent makes much of claimant's incorrect estimates of the mileage he had driven from the day of the assault until he first sought medical attention. However, we fail to see why he would intentionally deceive us about the mileage to further his claim. In our opinion, the more important inquiry would have centered around the time between the assault and when claimant first began experiencing symptoms (other than a headache and tenderness) in his ear on July 20, 2000, five days after the assault. We point out that it is sheer speculation to argue that claimant could not have driven that far with this type of injury or that he should have immediately experienced symptoms of loss of hearing and drainage from the ear. There is certainly no medical evidence in the record to support this speculation. Respondent also points to claimant's inaccurate estimate of the number of days he and Pete had been working together. Instead of it being two or three weeks as claimant testified, it appears that the period of time was eight or nine days. Again, we question what possible motive could claimant have had to lie about this fact and where is the relevance at any rate?
There has been much speculation about the cause of claimant's ruptured eardrum. Dr. Frederick H. Porter reported that claimant "was struck in the right ear, producing a perforation, collapsing the tympanic membrane, and dislocating the long and lenticular process of the incus. He sustained both a conductive and sensorineural hearing loss in the ear." This is the only medical opinion in the record. Respondent chose not to depose Dr. Porter or get another opinion about the cause of claimant's ruptured eardrum and fractured incus. There is no credible medical evidence in the record to support Commissioner Yates' assertion that claimant's congenital deformities or chronic sinus problems caused his difficulties.
Commissioner Yates questions claimant's testimony that he reported this incident to the employer with the Qualcom. However, we point out that these "electronic messages" and equipment are in respondent's possession, not claimant's possession, and respondent was at liberty to introduce them if there were any discrepancies with claimant's testimony. We are unclear what evidence, in addition to the claimant's testimony, that Commissioner Yates would expect the claimant to offer regarding the communication under these circumstances.
Commissioner Yates also questions why Pete wasn't arrested if Pete assaulted claimant. We point out that the incident report clearly details that claimant informed the law enforcement officers that Pete had assaulted him with "the computer keyboard." This is in direct conflict with Pete's incredible testimony that when the law enforcement officers asked claimant if Pete had hit him, claimant replied in the negative and informed the officers that they just had a disagreement or a misunderstanding. We point out that Pete testified that after claimant allegedly tried to run over him with the truck, he called the employer to report the situation. If Pete actually did this, we question why someone from the employer did not testify to corroborate Pete's alleged statements and why claimant wasn't fired immediately by the employer. Likewise, we note the absence of this account in the police report.
For all of the foregoing reasons, we affirm the Administrative Law Judge's credibility determination and her finding that claimant has met his burden of proof by a preponderance of the evidence that he was assaulted by Pete, that the assault was the result of a work-related disagreement, and that the assault resulted in the injuries for which he was treated and the disability benefits he received. The respondents are directed to comply with the Administrative Law Judge's benefit award
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, the claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion.
I find that the claimant failed to meet his burden of proof and would reverse the Administrative Law Judge's decision.
Based on my de novo review of the evidence, I find that the claimant failed to prove by a preponderance of the evidence that he sustained a ruptured eardrum as the result of an assault by Benjamin Pete. I find that it was the claimant's ongoing throat and sinus infection that led to the ruptured eardrum, and do not believe that the claimant proved by a preponderance of the evidence that a physical assault actually occurred.
The evidence concerning the alleged assault is conflicting, and simply does not support the claimant's version of events. The claimant testified that at the time of the alleged assault, he sent an electronic message to the respondent's dispatcher concerning the events that were happening; but no proof of this correspondence was offered by the claimant.
The burden of proof rests upon the claimant to prove the compensability of his/her claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is compensable, that the claimant's injury is job-related or that a claimant is entitled to benefits. Crouch Funeral Home v. Crouch, 262 Ark. App. 417 [ 262 Ark. 417], 557 S.W.2d 392 (1977); O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 2002).
Regarding the police report, if the police in fact believed that Pete had physically assaulted the claimant, would they have not arrested him? It is undisputed that they did not. The police report did state that the claimant had a red mark on his face. However, this was explained by Pete in his testimony, and his explanation was unchallenged by the claimant. In fact, the claimant's attorney did not ask Pete any questions on cross-examination and all of his testimony was unchallenged. While the Administrative Law Judge did not find the testimony of Benjamin Pete credible, I found Pete's description of the July 15th incident to be detailed, logical, and believable.
The findings of the Administrative Law Judge on issue of credibility are not binding on the Commission. Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983), Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and to determine the true facts. Arkansas Dept. of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).
Following the alleged assault, the claimant drove at least 1730 miles by himself before seeking medical attention. The accuracy of this figure is questionable, but even accepting this estimate, 1730 miles is a long way to drive alone, and not feeling well to begin with, before seeking medical attention after being beaten up. And regarding that visit to the emergency room in Texas, why was no record of this offered by the claimant?
The foregoing inconsistencies lead me to conclude that the claimant's testimony regarding the alleged assault is not supported by the preponderance of the evidence. Alternatively, there is persuasive, undisputed evidence that the claimant was suffering from a severe, long-standing sinus and throat infection. More than six months before the incident, Dr. Sanders recommended that the claimant have surgery because of the severity of his conditions. Ten days prior to the incident the claimant was treated by two physicians for sinus infections. And, the claimant felt so bad that he and Pete rested at the claimant's house in Indiana for two days prior to continuing on their trip.
"In determining whether a party has met the burden of proof on an issue, administrative law judges and the commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party." Ark. Code Ann. § 11-9-704(c)(4) (Repl. 1996).
Weighing the evidence impartially, I find that the claimant failed to prove that an assault occurred, and therefore failed to prove that his injury is compensable. I would reverse the decision of the Administrative Law Judge. Therefore, I respectfully dissent from the majority opinion.
_____________________________ JOE E. YATES, Commissioner