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Jordan v. Pyle11/19/2004
course of" employment, an injury must happen while the employee is at work in the employer's service.
Even those injuries which result from a personal dispute between co-workers are compensable if the employer has reason to anticipate that the injuries would occur if the employees continued to work together. Harris v. Bethany Medical Center, 21 Kan. App. 2d 804, Syl. 2, 909 P.2d 657 (1995). Here, finding that Pyle had reason to anticipate the assault, the Board determined that Jordan suffered a compensable injury:
"The Board concludes the preponderance of the evidence indicates that respondent had ample reason to anticipate the assault as demonstrated by the fact respondent had separated claimant and Mr. Gagnebin from rooming together on an earlier occasion. The respondent was aware of the ongoing dispute and Mr. Gagnebin's continued threatening behavior and not only allowed the two to work together but also again assigned them a room to share. The claimant has met his burden of proof to establish a compensable injury."
We find that there was substantial competent evidence to support the Board's determination. The evidence indicated that Pyle was aware of the ongoing dispute between Jordan and Gagnebin but took no measures to counteract the situation. Although Decker indicated that he was not aware of any dispute between Jordan and Gagnebin until the day of the fights, Jordan's testimony contradicted Decker's statements. "This court does not reweigh the evidence or determine the credibility of the witnesses' testimony. [Citation omitted.]" Niesz v. Bill's Dollar Stores, 26 Kan. App. 2d 737, 741, 993 P.2d 1246 (1999).
Jordan's testimony indicated that he had informed the owner of Pyle, as well as Decker and an area foreman, that Gagnebin was threatening him with fighting and that he wanted his own room. Jarvis revealed that he, as well as David Pyle, were aware of the dispute between Jordan and Gagnebin at least a couple of weeks before the fight. Jordan further indicated that although he had a separate room at one time, he was placed back in the same room with Gagnebin in Woodward. By not taking measures to reassign Jordan and Gagnebin to separate rooms and even separate job sites, Pyle had ample reason to anticipate the assault and the resulting injury that occurred in this case.
Furthermore, when Decker told Jordan to get off of Gagnebin and to return to the job site, he had reason to anticipate that Gagnebin might retaliate and injure Jordan. At that point, the two men had engaged in rough physical fighting where Jordan had ended up on top of Gagnebin. By not restraining Gagnebin when ordering Jordan to return to the job site, Pyle, acting through foreman Decker, had reason to anticipate further assault by Gagnebin. Therefore, Jordan's injury was compensable.
Moreover, Jordan's injury was compensable because it arose out of the conditions and incidents of Jordan's employment with Pyle. In Springston v. IML Freight, Inc., 10 Kan. App. 2d 501, Syl. 2, 704 P.2d 394 (1985), this court noted: "An injury sustained by assault arises out of employment when it arises out of the nature, conditions, obligations and incidents of the employment in the same manner as any other injury." Additionally, this court stated: "If an injury by assault arose out of and in the course of employment, it is compensable without regard to whether the claimant was the aggressor in the confrontation." 10 Kan. App. 2d 501, Syl. 3.
Under the facts of this case, Jordan was sent by Pyle to Woodward, Oklahoma, to work on a construction project. He was placed with Gagnebin in a hotel room that was paid for by Pyle. Although Pyle did not cover the cost of t
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