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Jordan v. Pyle11/19/2004
Affirmed.
Pyle, Inc. (Pyle), and its insurance carrier, Continental Western Insurance Co., appeal the decision of the Workers Compensation Board (Board) awarding disability benefits to Michael Jordan. First, Pyle argues that the Board erred in finding that Jordan's injuries which resulted from a fight between he and a co-worker arose out of and in the course of employment. Because there was substantial competent evidence to support the Board's finding that Pyle had reason to anticipate the assault, we find that Jordan's injury was compensable. Moreover, the evidence reveals that Jordan's injuries arose out of the nature and conditions of his employment with Pyle. Although Pyle alleges that Jordan started the fight by throwing the first punch, a determination of who initiated the fight is irrelevant as to whether workers compensation benefits should be awarded in this case.
Next, Pyle contends that the Board should have awarded disability benefits to Jordan based on his functional impairment rating instead of his work disability rating. We disagree and find that there was substantial competent evidence to support the Board's decision that Jordan suffered a work disability.
Next, Pyle argues that the Board erroneously included within the computation of Jordan's average weekly wage a $15 per day payment for meals. Because this payment constituted additional compensation that resulted in economic gain to Jordan, we find that the Board properly included this payment within Jordan's average weekly wage. Finally, Pyle contends that Jordan's work disability should be reduced by the amount of task loss that Jordan suffered from a prior injury. We find that there was substantial competent evidence to support the Board's decision not to consider task restrictions that were previously placed on Jordan by one examining doctor in 1996. Accordingly, we affirm the Board's decision.
The events in this case stem from two altercations that occurred during the morning of February 23, 2000, between Jordan and John Gagnebin. On that date, both Jordan and Gagnebin were employed by Pyle and were assigned to a construction project in Woodward, Oklahoma. The fights between Jordan and Gagnebin occurred in a small building which was next to the church being constructed by Pyle. Both Terry Jarvis and foreman Tim Decker witnessed the fights.
The altercations occurred after Gagnebin confronted Jordan about a $2 microwave rental fee that was owed to the hotel manager. Jordan and Gagnebin had been placed in a room together at a local hotel in Woodward for which Pyle was paying the lodging expenses. Pyle employees were also given a $15 per day payment separate from their paycheck to be used for food expenses. While staying at the hotel, Jordan and Gagnebin rented a microwave from the hotel. The microwave expense was not covered by Pyle and was paid by the individual employees.
On the morning of February 23, Jordan was already in the break room of the building when Gagnebin came inside. The details concerning the altercations varied in the testimonies given by Jordan, Jarvis, and Decker. According to Jordan, he had already clocked in for work when Gagnebin entered the break room and confronted him about the microwave rental fee. Jordan indicated that Gagnebin was yelling and threatening him with violence. Jordan further indicated that Gagnebin pushed him, and they both began swinging at each other. Jordan testified that he hit Gagnebin first.
According to Decker, Gagnebin was "harassing" Jordan about paying the hotel manager the microwave rental fee. Jordan told Gagnebin that he needed to stay out of his business, but Gagnebin kept "pestering him about it."
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