{"id":"alj-H305274-2024-09-11","awcc_number":"H305274","decision_date":"2024-09-11","opinion_type":"alj","claimant_name":"Breaunna Davis","employer_name":"Jefferson Regional Medical Center","title":"DAVIS VS. JEFFERSON REGIONAL MEDICAL CENTER AWCC# H305274 September 11, 2024","outcome":"denied","outcome_keywords":["granted:1","denied:3"],"injury_keywords":["ankle","back","neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/DAVIS_BREAUNNA_H305274_20240911.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAVIS_BREAUNNA_H305274_20240911.pdf","text_length":23749,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H305274 \n \nBREAUNNA DAVIS, EMPLOYEE        CLAIMANT \n \nJEFFERSON REGIONAL MEDICAL CENTER, EMPLOYER        RESPONDENT \n    \nJEFFERSON HOSPITAL ASSOCIATION, INC./ \nRISK MANAGEMENT RESOURCES, CARRIER/TPA        RESPONDENT \n \n \nOPINION FILED 11 SEPTEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 13 June 2024 in Pine Bluff, Arkansas. \n \nMr. Mark Alan Peoples for the claimant. \n \nWorley, Wood & Parrish, PA, Ms. Melissa Wood, for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 13 June 2024 in Pine Bluff, Arkansas. The \nparties participated in a pre-hearing telephone conference on 23 April 2024. A Prehearing \nOrder, admitted to the record without objection as Commission’s Exhibit No 1, was entered \non 24 April 2024. \nThe Order stated that the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  The employee/employer/carrier-TPA relationship existed at all relevant times, \nincluding 10 August 2023, the date of the allegedly compensable injury to the claimant’s \nankle. \n3.  The claimant’s average weekly wage at the time was $567.21, which would entitle \nher to Temporary Total Disability (TTD) and Permanent Partial Disability (PPD) benefits \nin the amounts of $378 per week and $284 per week, respectively.  \n4.  The respondents have controverted this claim in its entirety. \n\nB. DAVIS- H305274 \n2 \n \nThe parties’ CONTENTIONS, as set forth in their Prehearing Questionnaire \nResponses, were incorporated into the Prehearing Order.  \nPer the claimant’s CONTENTIONS, she sustained a compensable work injury to her \nleft ankle on 10 August 2023, she is entitled to TTD benefits from that date until November \nof 2023, she is entitled to medical treatment, and her attorney is entitled to the maximum \nstatutory fees. \nPer the respondents’ CONTENTIONS, the claimant did not sustain a compensable \ninjury on 10 August 2023 or at any other time during the working relationship. The \nclaimant was engaged in horseplay and was not in the course and scope of her employment \non 10 August 2023 when she injured her left ankle. \nThe Order also set forth the following ISSUES TO BE LITIGATED: \n1.  Whether the claimant suffered a compensable injury. \n2.  Whether the claimant is entitled to TTD benefits. \n \n3.  Whether the claimant is entitled to reasonable and necessary medical treatment and \npayment/reimbursement for medical expenses and mileage. \n \n4.  Whether the claimant is entitled to an attorney’s fee. \n \nAll other issues were reserved. \n \nThe following WITNESSES testified at the hearing: the claimant testified on her \nown behalf, while the respondents called Mr. Ed Jones, the claimant’s former supervisor, \nand Ms. Zoey Harris, the claimant’s former coworker. \nThe EVIDENCE presented consisted of the testimony along with Commission’s \nExhibit No 1 (the 24 April 2024 Prehearing Order), Claimant’s Exhibit No 1 (thirteen pages \nof medical records), and Respondents’ Exhibit Nos 1 (six pages of medical records) and 2 (ten \npages of non-medical records, including a disc with security footage of the incident). The \ndocuments in Respondents’ Exhibit No. 2 are detailed below. \n\nB. DAVIS- H305274 \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the \nwitnesses, observing their demeanor, I make the following findings of fact and conclusions \nof law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously-noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the evidence that she suffered a \ncompensable injury. \n \n4. The claimant failed to prove by a preponderance of the evidence that she is entitled \nto an attorney’s fee. \n \nIII.  HEARING TESTIMONY & MEDICAL EVIDENCE \nClaimant Breaunna Davis \nThe claimant testified that she had been working in materials management at \nRespondent Jefferson Regional Medical Center (JRMC) for about two years before her \nworkplace incident. Her responsibilities included taking supplies to various patient care \nareas and other duties as assigned. The central supply area was located in the hospital’s \nbasement, where she would start her shifts, receive area assignments, and collect supplies \nbefore delivering them to her assigned area. \nOn 10 August 2023, the claimant was working a shift that ran from 6:00 AM to 3:00 \nPM. She recalled hurting her ankle around 9:00 AM. After finishing with delivering the \nsupplies from one of her carts and then getting some breakfast, the claimant went looking \nfor a coworker on the second floor. According to the claimant, she hurt her ankle shortly \nafter helping the coworker with her supply cart.  \nQ:  All right. And did you help Pam? \nA:  Yes, sir. \nQ:  All right. What happened next? \n\nB. DAVIS- H305274 \n4 \n \nA:  And then, I saw somebody I knew. I stopped to say hi and to see how they \nwere doing. And then, as I was walking away my left ankle twisted inward \nand I heard a loud pop. \nQ:  And this was on the second floor? \nA:  Yes, sir. \nQ:  Okay. Who did you see that you said hi to? \nA:  Zoey. \n \n[TR at 17.] \n The claimant said that about 15 minutes passed between helping Pam with her cart \nand then hurting her ankle on the way back to the basement to return to her work duties. \nAbout an hour later someone noticed that she’d taken her left shoe off and asked if she was \nokay. She then presented to the hospital’s emergency department and reported the injury to \nher supervisors. The claimant was diagnosed with a small broken bone and received some \nadditional treatment after the emergency department visit and before her claim was denied \nfor any further benefits. She continued seeking treatment on her own for some time, but \nsurgery was not required.  \n The claimant’s examination continued: \n Q:  You don’t work at Jefferson Regional anymore, do you? \n A:  No, sir. \n Q:  Why not? \n A:  I do not recall. \n Q:  Did they fire you or did you quit? \n A:  I believe they fired me. \n Q:  Do you know why? \n A:  No, sir. \n \n[TR at 23.] She went on to say that after separating from the respondent’s employment, she \nbegan working as a paid caretaker for her grandmother in November of 2023, making $350 \nevery two weeks. She did not experience difficulty working with her grandmother because \nof her injury, and she stated that if she were able to return to JRMC, she could perform the \nnecessary job duties. \n\nB. DAVIS- H305274 \n5 \n \n On cross examination the claimant testified that she was at the nurse’s station to \nask Zoey about a note behind the nurse’s desk; but she could not recall what the note was \nabout. Testifying about her deposition, the claimant stated: \nQ:  I, then, asked you in the deposition, “Did you ask Zoey about the note,” \nand your response was, “Not that I recall,” is that correct? \n A:  Yes, ma’am. \nQ:  I said, “Why not?” You said, “I don’t remember. I do not recall.” Is that \ncorrect? \n A:  Yes, ma’am. \nQ:  You, then, went on to say that you didn’t recall if you had any \nconversations with any nurses or nurse’s aides at the station about the note, \nis that right? \n A:  Yes, ma’am. \nQ:  You indicated that you had a question about some item that was located \non your phone, is that right? \n A:  Yes, ma’am. \n \n . . .  \nQ:  I asked you what else you talked with her about; you said you didn’t \nremember, is that correct? \n A:  Yes, ma’am. \nQ:  But you’ve told us that you were there in that area talking with Zoey for \nabout 15 minutes, is that right? \n A:  Yes, ma’am. \nQ:  I asked you in your deposition, “Did you touch Zoey?” you replied, “Yes, \nma’am.” Is that correct? \n A:  Yes, ma’am. \nQ:  I said, “What did you touch her for?” you said, “I gave her a hug.” Is that \nright? \n A:  Yes, ma’am. \nQ:  I said, “Did you touch her breast?” You responded, “No, ma’am.” Is that \ncorrect? \n A:  Yes, ma’am. \n \n . . . \nQ:  I asked you in the deposition, “If we have a statement from Ed Jones \nindicating that you were not supposed to be on the ICU floor, what would you \nsay in response?” And you indicated, “I would say that was, probably, \ncorrect,” end quote. Is that right? \n A:  Yes, ma’am. \n \n[TR at 29-31.] \n\nB. DAVIS- H305274 \n6 \n \n Discussing her treatment after the injury, the claimant stated that she participated \nin physical therapy and wore a boot for approximately three months. She confirmed that \nsurgical repair was not indicated and that she was released to full duty on 5 January 2024. \n Returning to her earlier testimony, the claimant reiterated: \nQ:  And it’s your testimony that you don’t know whether or not you were \nterminated? \n A:  Yes, ma’am. \n Q:  You don’t know? \n A:  Yes, ma’am. \n \n. . . \nQ:  I asked you on page 36 of your [5 February 2024] deposition, “Are you \nbeing paid to help her?” Your response was, “No, ma’am.” Is that correct? \n A:  Yes, ma’am. \n Q:  But today you’ve told us you, actually, started getting paid in November? \nA:  Yes, ma’am. They pre – they had looked over her care and approved her \nfor a home care nurse. \n Q:  So when did you receive payments and for how long? \nA:  I received payments for two months and I don’t recall the date that it \nstarted. \n Q:  And again, how much were you paid? \n A:  Every two weeks, 350. \n \n[TR at 33-35.] \n The claimant’s cross examination went on to cover the Form N entered into the \nrecord with Respondent’s Exhibit No. 2. \n Q:  ... Do you recognize this document? \n A:  Yes, ma’am. \n Q:  Is that something that you filled out? \n A:  Yes, ma’am. \nQ:  Okay. In this middle section here it says, “What part of your body was \ninjured?” And that says, “Left ankle.”? \n A:  Yes, ma’am. \n Q:  And right below it, tell us what that says. \n A:  Lady ran over my toes. \n Q:  Is that something that, actually, happened? Did someone run over your toes? \n A:  Yes, ma’am. \n Q:  This is how you hurt yourself? \n A:  That was a portion of it. \n \n[TR at 36.] \n\nB. DAVIS- H305274 \n7 \n \nRespondents’ Witness Ed Jones \n Mr. Jones testified that he works as the manager of central supply and inventory \ncontrols at Jefferson Regional Medical Center and in that role, the claimant’s direct \nsupervisor reported to him. He acknowledged that a written statement introduced in \nRespondent’s Exhibit No. 2 was a writing that he provided to JRMC in response to a \nrequest from their human resources department. According to the statement, the claimant \nwas outside of her assigned work area when she was injured. Mr. Jones confirmed in his \ntestimony that the claimant was not supposed to have been in the work area where her \ninjury occurred.  \n Mr. Jones also relayed his recollection of the video footage of the nursing area \nwhere the claimant hurt herself. He stated that he provided the footage to JRMC’s HR \ndepartment. Mr. Jones testified that the video did not show the claimant performing any \nwork activities, but that he was not involved in the decision to terminate the claimant’s \nemployment. \nOn cross examination, Mr. Jones stated that it was not prohibited or uncommon for \nemployees to assist each other in carrying out work duties. \nOn redirect examination, Mr. Jones testified that Pam was not present in the area \nwhere the claimant was hurt. He further testified that the claimant should have returned \nto the central supply area for further work assignments after completing her supply \ndeliveries. \nRespondents’ Witness Zoey Harris \n Ms. Harris testified that she works as a patient care technician at JRMC and that it \nwould be fair to say that she and the claimant were friends or acquaintances during the \ntime that they worked together. Relaying what she recalled of August 10\nth\n, she explained: \n\nB. DAVIS- H305274 \n8 \n \nA:  Okay. So I was charting on my computer, and then, I felt somebody come \nup behind me and put me in a kind of like a choke hold, but not hard. She put \nher arm around my neck, and then, like I felt my – I got groped. Okay. And \nthen, I turned around and I saw it was her, but I was still kind of \nuncomfortable, ‘cause I don’t like being touched no way. And then, she kind of \npointed like a gun kind of with her fingers and pointed it up to, like, to my \nhead, and then, swiped my head. \n Q:  So not a real gun? \n A:  Oh, no, no. \n Q:  Just her fingers? \n A:  Yeah, just her fingers. \n Q:  Okay were you uncomfortable with this? \n A:  Yes. \n \n[TR at 46-47.] \n Ms. Harris then confirmed that she authored a statement made part of the record in \nRespondents’ Exhibit No. 2. She testified that the claimant did not speak to her about \nanything work related. \n Q:  At one point she seems to show you her phone, do you remember that? \n A:  Yes. \n Q:  Do you— \n A:  It was like a song. It was like a song that she was trying to show me. \nQ:  During the conversation that you had with her, after she hugged you, did \nshe ask you anything or talk about anything work related? \n A:  No. \n \n[TR at 48.] \n On cross examination, Ms. Harris testified that she was not made aware of the \nclaimant’s injury until she was contacted about the matter by HR a few days later. \nRecords and Video Evidence \n Respondents’ Exhibit No. 2 included the following: (1) video footage of the incident; \n(2) the Form AR-N signed by the claimant; (3) the written statement of Zoey Harris; (4) the \nwritten statement of Ed Jones; (5) a termination letter signed by Employee Relations \nSpecialist Robin Munn; and (6) an HR document packet noting the claimant’s termination. \n(1) Having reviewed the video, I note the following: \n\nB. DAVIS- H305274 \n9 \n \na. The video displays a runtime of 3:23 (three minutes, twenty-three \nseconds). \nb. The foreground of the video shows the desk of the nurse’s station \nextending from the bottom to the top of the frame. Patient rooms wrap \naround the exterior of the space and the nurse’s station. The nurse’s \nstation area extends through the middle and background of the frame, \nwith work stations, an enclosed office space, and a corridor in the middle \nof the nurse’s station that leads “away” from the area towards the interior \nof the building. \nc. Zoey Harris is seated at the nurse’s station, eating in front of a computer. \nAnother employee is seated to her right. \nd. 00:10- the claimant enters the frame through the corridor and puts Ms. \nHarris in a headlock. \ne. 00:14- claimant releases the headlock and leans over Ms. Harris’ \nshoulders, resting her right arm across Ms. Harris’ chest and her right \nhand over Ms. Harris’ left breast. \nf. 00:26- the claimant stands up from leaning across Ms. Harris and moves \nher hand away from Ms. Harris’ breast, while talking and gesturing with \nher hands out, as if asking a question to the room. \ng. 00:56- Ms. Harris continues eating while the claimant stands beside her, \nboth looking at something on Ms. Harris’ phone, which is on the desk to \nthe left of her food. \nh. 01:09- the claimant puts her phone on the desk beside Ms. Harris’ while \nsomething appears to be playing on the screen. The claimant appears to \nsing and dance along with whatever is playing on her phone. \n\nB. DAVIS- H305274 \n10 \n \ni.  01:45- another employee enters the frame, and the claimant begins to \npick up her phone when she sees him, but then puts it back down and \nleans over it, tapping at the screen. \nj. 02:05- the claimant slides her phone in front of Ms. Harris, who watches \nwhile they discuss something and tap at both phones. \nk. 02:19- the claimant points her fingers like a gun against Ms. Harris’ head \nfor a moment before pulling her hand away. \nl. 02:29- the claimant is holding her phone and standing beside Ms. Harris \nas another employee enters the area from the top of the frame and walks \naround the nurse’s station. \nm. 03:09- the claimant is still standing by Ms. Harris, and they are looking at \ntheir phones, when another employee enters the middle of the nurse’s \nstation via the corridor. \nn. 03:17- the claimant abruptly stands back and walks away from Ms. \nHarris while saying something, with her hands on her hips, towards the \nemployee who just arrived. \no. 03:19- the claimant appears to stumble while turning and walking \nthrough the corridor. She then exits the frame. \n(2) As noted on cross examination, the claimant stated on the Form N that, “[A] lady \nran over my toes[.] Almost fell and then heard a pop.” \n(3) Ms. Harris wrote that, “I was sitting at the nurses deck when someone came up \nbehind me and placed her hands around my neck and grabbed my boob and when \nI looked to see who it was Bri from CSR and I felt uncomfortable and it was \nunwanted.” [sic] \n\nB. DAVIS- H305274 \n11 \n \n(4) Mr. Jones wrote that, “... Her assignment DID NOT INLCUDE SICU \n[emphasis in original]... Breaunna was in SICU when injured, but had not been \nassigned there nor sent there by her direct supervisor or myself at any time that \nmorning. At the time, she should have been attending to her assigned areas or \nback in CSR working on whatever her direct supervisor needed her to do.” SICU \nis the intensive care unit where the claimant was not assigned, but where she \ninjured herself. \n(5) The 26 September 2023 termination letter advised the claimant of “termination \nas Distribution Technician at Jefferson Regional. Disciplinary reason \n‘Unprofessional Behavior/Conduct.’” \n(6) The HR documents indicate “termination” for “Unacceptable Behavior/Conduct,” \nproviding that, “The employee was found on video outside of her work without a \nbusiness reason displaying unprofessional conduct/behavior.” The final page has \na space for comments that appears to be signed by the same Robin Munn who \nsigned the termination letter and noted, “Was a no call no show for meeting to \nterm. Sent cert[ified] letter.”  \nIV.  ADJUDICATION \nThe stipulated facts are outlined above and accepted as fact. It is settled that the \nCommission, with the benefit of being in the presence of the witnesses and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 \n(1999).   \n \n \n\nB. DAVIS- H305274 \n12 \n \nA.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT SHE SUFFERED A COMPENSABLE INJURY. \n \nThe claimant is not entitled to the benefits sought in relation to the injury she \nexperienced while at work on 10 August 2023. At the time she injured her ankle, the \nclaimant had been engaging in horseplay outside of her work assignment area. \nThe claimant alleges that she sustained a compensable injury under the Arkansas \nWorkers’ Compensation Act. ACA § 11-9-101, et seq. Under the Act, a respondent is \ngenerally required to provide certain benefits associated with a compensable injury suffered \nby a worker in the course and scope of their employment. However, “injuries caused by \nhorseplay shall not be considered to be compensable injuries.” ACA § 11-9-102(4)(B)(i). In \nMize v. Res. Power, Inc., 99 Ark. App. 415, 261 S.W.3d 477, 2007 Ark. App. LEXIS 583, our \nCourt of Appeals addressed horseplay and found an earlier citation to Ringier Am. v. \nCombs, 41 Ark. App. 47, 849 S.W.2d 1 (1993), to be instructive, though not controlling (as \n“the statutory provision [above] was enacted after the Ringier case was decided and is \ncontrolling”): \nWhether initiation of horseplay is a deviation from one's course of \nemployment depends on: (1) the extent and seriousness of the deviation; (2) \nthe completeness of the deviation, i.e., whether it was co-mingled with the \nperformance of duty or involved in abandonment of duty; (3) the extent to \nwhich the practice of horseplay had been an accepted part of the employment; \nand (4) the extent to which the nature of the employment may be expected to \ninclude some such horseplay. \n \nMize, supra, at *420, **480, ***8.  \n The available video shows the three minutes preceding the claimant’s injury. \nApplying the considerations from Ringier, I find that she did not appear at all to be \nfurthering any work duty. Ms. Harris, who I find to be credible, testified that the claimant \ndid not engage in any work-related discussion but, instead, was showing her some music \nvideo on her phone. That is consistent with the video footage (Factors (1) and (2)). From the \n\nB. DAVIS- H305274 \n13 \n \nclaimant’s guarding behavior when one employee enters the frame and then her hasty \ndeparture when another arrives, I find it more likely than not that she was aware that her \nbeing out of her place of assignment was not acceptable (Factor (3)). Finally, there was no \ntestimony to support the notion that laughing and dancing in an intensive care unit, and \nwhile out of one’s place of assignment, might be behavior of an expected nature in a \nhealthcare setting (Factor (4)). All of these factors weigh in favor of finding that the \nclaimant’s behavior was a significant deviation from the course of her employment and that \nshe was engaging in horseplay at the time she was injured. \n The claimant attempted to argue that she was acting for her employer’s benefit \nwhile being out of her place of assignment. I do not find that argument, or her testimony as-\na-whole, to be credible. First, nothing in the video supports her story of investigating a note \nabout some needed supplies. Second, Ms. Harris credibly states that the claimant was not \nthere to discuss job-related business. Third, Mr. Jones credibly testified that the claimant \nwas outside of her assigned work area at the time she was hurt and that she should have \nreturned to her supervisor for further assignments after finishing her supply deliveries. \nLastly, the claimant was terminated for the behavior that immediately preceded hurting \nher ankle. In the span of about three minutes, the claimant grabbed Ms. Harris in a \nchokehold, groped Ms. Harris’ breast (which she denied in her testimony, but is in plain \nview in the video), motioned against Ms. Harris’ head with her hand in the shape of a gun, \nand danced along with some kind of internet videos—all while outside of her assigned work \narea. The evidence preponderates a finding that she was engaged in horseplay and not in \nany efforts in furtherance of her employer’s interest.  \n The claimant incredulously testified that she did not recall why she no longer \nworked for the respondent-employer. Then she said that she believed she was terminated, \nbut that she was unsure why. The respondents’ evidence, however, show that she was \n\nB. DAVIS- H305274 \n14 \n \nterminated for being “found on video outside of her work without a business reason \ndisplaying unprofessional conduct/behavior.” Her credibility was further damaged by the \nrespondents’ counsel noting on cross examination that the claimant filled out a Form N \nstating that a “lady ran over my toes.” The video shows nothing of the sort happening. Yet \non cross examination, the claimant insisted that the incident actually happened and that it \nwas “a portion” of how she injured herself. The claimant was, in short, not a credible \nwitness. \n Because the evidence preponderates a finding that the claimant was engaged in \nhorseplay at the time of her injury, the benefits she requests are barred by ACA § 11-9-\n102(4)(B)(i). \nB.   THE CLAIMANT IS NOT ENTITLED TO A CONTROVERTED ATTORNEY’S FEE. \n \n Because the claimant fails to establish by a preponderance of the evidence that she \nsuffered a compensable injury, her claim for an attorney’s fees must fail. \nV.  ORDER \n     Consistent with the Findings of Fact and Conclusions of Law stated above, this \nclaim for is DENIED and DISMSSED.  \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H305274 BREAUNNA DAVIS, EMPLOYEE CLAIMANT JEFFERSON REGIONAL MEDICAL CENTER, EMPLOYER RESPONDENT JEFFERSON HOSPITAL ASSOCIATION, INC./ RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED 11 SEPTEMBER 2024 Heard before Arkansas Workers’ Compen...","fetched_at":"2026-05-19T22:48:48.713Z","links":{"html":"/opinions/alj-H305274-2024-09-11","pdf":"https://labor.arkansas.gov/wp-content/uploads/DAVIS_BREAUNNA_H305274_20240911.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}