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Hargis v. Lovett

Court of Appeals of Arkansas, Division III

April 4, 2018



          Michael Hamby, P.A., by: Michael Hamby, for appellant.

          Ledbetter, Cogbill, Arnold & Harrison, LLP, by: R. Scott Zuerker and Joseph Karl Luebke, for appellees.


         Appellant Jason Hargis appeals the August 8, 2017 opinion of the Arkansas Workers' Compensation Commission (Commission) that affirmed and adopted the administrative law judge's (ALJ's) February 15, 2017 decision finding that he failed to prove that he sustained a compensable injury to his lower back while employed by appellee Lovett Logging. Appellant argues that substantial evidence does not support the Commission's findings. We affirm.

         I. Facts and Procedural History

         Appellant worked for appellee Lovett Logging, a logging company operated by Jim Lovett and his son, Brian Lovett. His job duties included trimming, running a chain saw, and operating a skidder and boom. Appellant alleges that he suffered a compensable injury to his lower back at the end of his shift on May 9, 2016, when Brian asked him to move a boulder. Appellant claims that as he was picking up the boulder to pull it backwards, something in his back popped, and he could barely remain standing. Appellant maintains that he hobbled to a work truck and informed both Brian and coworker James Bradley that he had injured his back.

         According to appellant, he left the logging woods with Brian and Bradley together in one truck as was customary. He claims that after they got into the truck he informed Brian that he was hurting and felt like he needed to see a doctor.

         When appellant returned home after work, his girlfriend took him to the emergency room at Mercy Hospital in Waldron. His medical records contain a report from the emergency room dated May 9, 2016, indicating that appellant presented with a chief complaint of back pain and a history of the pain beginning while appellant was moving a heavy boulder at work that afternoon. Appellant was diagnosed with a lumbosacral strain and was prescribed medication; he was instructed to receive follow-up care with his primary physician; and an MRI scan was ordered. Appellant was also given a note taking him off work until May 16, 2016.

         Appellant submits that after he was released from the emergency room he went to appellees' home-a duplex in which Brian lived in the downstairs portion while Jim lived in the upstairs portion. Appellant claims that he informed both Brian and Jim at that time that he had injured his back at work and gave appellees the off-work note. He maintains that Jim informed him that if he was off work for six days, he would be fired.

         Based on that statement, appellant went to work the next day, May 10, 2016, completed his work shift, and at the end of the day got into the truck to go home with Brian and Bradley. Appellant admits he was upset that he had been informed he was going to be fired if he did not show up at work and that he told Brian this was wrong. Appellant further acknowledges that his anger got the better of him and that he used foul language in his discussion with Brian.

         At the time of the alleged injury, appellant was wearing an ankle monitor because he had been convicted of DWI with a suspended license. He was to have the ankle monitor removed on May 11, 2016, after work so as not to interfere with his ability to work that day. However, according to Bradley, appellant informed Brian while they were in the truck leaving the work site on May 10, 2016, that he would be able to work for only a couple of hours the following day so that he could take off to go have the bracelet removed. Brian allegedly informed appellant that there was no need for him to come in and that he would have someone fill in for him.

         Although the details are disputed, a physical altercation between appellant and Brian occurred at that time. Appellant claims that Brian pulled the truck over and headbutted him, which Brian denies, and the altercation involved the two men exchanging blows with their fists. Brian alleges that appellant began the altercation by calling him names, accusing him of firing him, and punching him.

         Appellant did not work for appellee after that date, and when he was seen at the Mercy Hospital emergency room in Waldron on May 14, 2016, he was diagnosed with a lumbar strain and he was again advised to ...

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