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An assault arises out of the employment either if the risk of assault is increased by the nature or setting of the work or if the reason for the assault was a quarrel having its origin in the work. The definition of "compensable injury" under the workers' compensation statutes does not include injury to any active participant in assaults or combats which, although they may occur in the workplace, are the result of non-employment-related hostility or animus of one, both, or all of the combatants and which assault or combat amounts to a deviation from customary duties.
Reid sustained injuries after he was attacked by a third-party assailant while working in an apartment at the Chateau Deville Apartments in Little Rock. At the time he sustained his injuries, Mr. Reid worked as a painter for Odd Jobs & More. A hearing was held before an administrative law judge to contest the compensability of Mr. Reid's injuries. At the hearing, Mr. Reid testified that he was inside the apartment, inspecting a water leak, on June 4, 2009, when someone came up behind him and hit him in the head. The last thing Mr. Reid remembered of that day was telling a woman outside of the apartment to call an ambulance. The assailant took thirty-six dollars and a cell phone from him. He sustained injuries to his skull that resulted in the loss of a portion of his skull. Mr. Reid testified that since the incident he has lost strength in his arms and his left foot. On a typical day, he exercises and sits around watching television. He maintained that he is not capable of performing house or yard work.
During the hearing, Mr. Reid also stated that the Chateau Deville Apartments are located in a rough neighborhood and that he had been "going over there for a lot of years" painting apartments. Mr. Reid testified that he had seen fights at the apartments. He denied feeling like he was being placed at risk while working at the apartments. William Mourot, the owner of Odd Jobs & More, testified that the company had been painting at the apartment complex for thirty years and that Mr. Reid worked for him for twenty years. Mr. Mourot denied having any problems with violence at the apartments. He further stated that he never felt like any of his employees were placed at any increased risk while working at the complex and that he did not recall Mr. Reid ever expressing concern for his safety.
In an opinion filed on June 29, 2010, the ALJ found that Mr. Reid sustained a compensable injury on or about June 4, 2009, and awarded benefits to him. In an opinion filed on September 30, 2010, the Commission affirmed and adopted the decision of the ALJ. Appellants have appealed to this court from the decision of the Commission.
Did the Commission err in affirming and adopting the decision of the ALJ that Mr. Reid’s injuries are compensable?
Before the Commission, the parties each advocated a different theory under which the facts should be examined. Mr. Reid argued that the positional-risk doctrine should apply. Appellants argued that the increased-risk doctrine should apply. The Commission analyzed the case under both doctrines and found that Mr. Reid's injuries were compensable under either of them. An injury is deemed to arise out of the employment under the positional-risk doctrine if it is one that would not have occurred but for the fact that the conditions and obligations of the employment placed the employee in the position where the injury occurred. The positional-risk doctrine is implicated in circumstances where an employee is injured by a neutral risk to which she is exposed due to the conditions and obligations of her employment. A neutral risk means that the risk which caused the injury was neither personal to the appellant nor distinctly associated with the employment. In other words, before the doctrine will be applied there must be no evidence that the assault was personal and no evidence that the assault was work related. On the other hand, under the doctrine of increased risk, injuries are compensable if the employment exposed the employee to a greater degree of risk than other members of the general public in the same vicinity. Under this theory, a claimant must prove only that the conditions of his employment, or the place where his employment required him to be, intensified the risk of injury due to extraordinary natural causes.
The Commission found that the risk of assault to Mr. Reid was increased by the setting of his work. The person who attacked him robbed another individual in front of the complex a few days before he assaulted Mr. Reid. Mr. Reid submitted to the Commission a number of police reports of violent acts that occurred at the Chateau Deville Apartments. In addition, there was testimony that, prior to the incident involving Mr. Reid, the apartment complex had been in a special program created to deal with businesses that had been the scene of criminal activity. There was also testimony that the apartment complex could again qualify for the CAP program due to the incidents that have occurred there since the complex's release from the program. The applicable standard in reviewing a decision of the Commission is not whether the appellate court would reach a similar conclusion but, rather, whether reasonable persons could reach the same conclusion as the Commission. Given the evidence before the Commission, reasonable persons could reach the conclusion that Mr. Reid's injuries are compensable after analyzing the facts under the test applicable to assaults.