J Mar Express, Inc. v. Poteete

2011 Ark. App. 122, 381 S.W.3d 159, 2011 Ark. App. LEXIS 142
CourtCourt of Appeals of Arkansas
DecidedFebruary 16, 2011
DocketNo. CA 10-894
StatusPublished

This text of 2011 Ark. App. 122 (J Mar Express, Inc. v. Poteete) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J Mar Express, Inc. v. Poteete, 2011 Ark. App. 122, 381 S.W.3d 159, 2011 Ark. App. LEXIS 142 (Ark. Ct. App. 2011).

Opinion

ROBERT J. GLADWIN, Judge.

| [This appeal follows the July 20, 2010 decision of the Arkansas Workers’ Compensation Commission, affirming and adopting the opinion of the Administrative Law Judge (ALJ), which found that ap-pellee Donald Poteete, deceased, sustained a compensable injury in the form of a heart attack, pursuant to Arkansas Code Annotated section 11-9-114 (Repl. 2002). Appellants argue that the Commission’s decision is not supported by substantial evidence. We affirm.

Appellee and his wife, Jane Poteete, worked together as team drivers for appellant J Mar for over nineteen years. On June 20, 2007, the Poteetes arrived in Tracy, California, at approximately 1:30 a.m. They slept until their scheduled unloading time of 6:00 a.m., but 12neither participated in the unloading of the trailer. They then traveled approximately sixty miles to Santa Nella, California, took a shower, and thereafter drove 112 miles to Dinuba, California, to pick up another trailer. They hooked up to a refrigerated trailer, but the unit ceased working, and they were given another trailer. This final trailer was missing a mud flap, which had to be replaced. At that time, however, appellee just pried the flap hanger away from the tire, and they continued driving because they had no means to make the repair. Upon arriving at the truck scales, he had to pull a bar beside the axles to make the axle weights right, which took .five to ten minutes.

The Poteetes then traveled two hours to Bakersfield, California. Appellee drove, and Mrs. Poteete went to sleep in the sleeper portion of the truck cab around 1:30 p.m. She was not aware of what time it was when they arrived at Bruce’s Truck Stop but awoke around 3:30 p.m. At that time, she got dressed, looked out the window of the truck, and noticed emergency vehicles parked nearby. ■ The truck was still running, but appellee was not inside. As she exited the truck, Mrs. Poteete picked up appellee’s sandals and hat, which were on the ground, and removed his keys from the open sidebox door, where appel-lee kept tools used to work on the truck. His cloth pouch of tools was found on'the ground as well.

John Cinecoe, general manager of Bruce’s Truck Stop, transported Mrs. Po-teete to the hospital where appellee had been transported and subsequently pronounced dead. Upon her arrival, she was required to identify appellee’s body, at which time she noticed that he had “dark, red, purple-looking” burns on the back of his right arm and sides of his torso.

| sAt the hearing before the ALJ, Mrs. Poteete testified that she did not go with appellee to purchase a new mud flap, but at the time she was leaving for the hospital, she noticed that one had been installed on the tráiler. Prior to that day, appellee had never before had to replace a mud flap by himself. He previously had aided another driver in that task, but the weather on that occasion was cool. The temperature in Bakersfield, California, at the time of the incident, however, was 106 degrees Fahrenheit. Although Mrs. Poteete did not see appellee change the mud flap the day he died, she concluded that he installed the mud flap based on the fact that- she saw the new flap installed and found a receipt for its purchase in his wallet.1

Mrs. Poteete had never changed a mud flap, but she explained that she had observed the.-task. She described that replacing a flap requires the loosening/removal of four to six bolts, inserting the approximately twenty-pound flap, and re-plaeing/tightening the bolts. She noted that appellee had only manual tools, while replacing a mud flap typically requires the use of air-powered ones. She indicated that the task is normally performed by garage mechanics and takes from thirty to forty-five minutes to perform. While acknowledging that J Mar would have reimbursed them for the repair if someone had charged them, Mrs. Poteete indicated that there were very few garages in the area and that Bruce’s Truck Stop did not have a repair shop.

^Deposition testimony was presented from general manager Cinecoe. He described the facility as a multi-unit one, comprised of a restaurant, bar, convenience store, fueling system, and provider of trucking services, including parking. He explained that Idle Aire Technologies (Idle Aire) contracts with the truck stop to place air-conditioning equipment on the property.. According to Cinecoe, an employee of Idle Aire, Lou Orozco, informed him that he saw appellee lying on the ground between his tractor and trailer. When Cine-coe reached the scene, police, fire, and ambulance personnel were present, but Mrs. Poteete did not appear until the ambulance was leaving, at which time he gave her a ride to the hospital.

Orozco’s deposition testimony indicated that he is a maintenance technician for Idle Aire. On June 20, 2007, he was at Bruce’s Truck Stop, fixing an HVAC unit on a man-lift ten to twenty feet off the ground. After another employee told him that he saw a man fall to the ground, Orozco turned around and saw appellee. He was on the driver’s side of the truck and appeared to be attempting to get into a side compartment. Orozco stated that “[h]e looked like he had fell [sic], and ... guess[ed] the asphalt was so hot that it looked like it was like burning his hands, and he was like jumping up and flopping all over the place.” Orozco lowered the lift and called 911. He described appellee’s skin as being so burned that a portion of it remained stuck to the pavement after he was moved. In addition, appellee’s eyes were red and “white stuff’ was coming from his mouth. Orozco indicated that “it was so hot out here,” and the area where the truck was located had no shade with the sun blazing on it.

| ^Martin Camarena’s October 24, 2008 deposition testimony indicated that he was working as a field-service technician for Idle Aire at Bruce’s Truck Stop on June 20, 2007, and that he also saw appellee that day. He had been working next to appel-lee’s truck on the equipment provided for the truck drivers for approximately thirty minutes prior to appellee coming out of the truck and collapsing. He saw appellee step out of his truck, which caught Ca-marena’s attention because appellee was only wearing some type of boxer shorts2 with no shirt or shoes on a very hot day. He observed appellee go over to the side of his cab and open a compartment where tools are kept. When appellee reached his hands in, Camarena saw him stumble backward and fall to the ground.

Camarena stated that the fall took place no more than one minute after appellee got out of his truck. He described appel-lee as “turning black and purple,” and struggling to breathe. After calling 911, Orozco and Camarena turned appellee over and noticed burns on his back and legs from the hot pavement.

Camarena’s testimony indicated that, at some point prior to his collapse, appellee went to the truck-stop office and asked if he could borrow some tools. The supervisor did not have tools to loan, and informed appellee that it was dangerous for him to be walking around barefoot because the ground was extremely hot. Camarena stated that, at the time the alleged incident took place, appellee’s truck was idling and that no Idle Aire system was attached to | fiit. Camarena acknowledged that if ap-pellee had been outside working on a mud flap more than thirty minutes prior to collapsing, he would not have seen that occur.

Mrs. Poteete stated that the air conditioning in the truck was operating the day appellee died.

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Bluebook (online)
2011 Ark. App. 122, 381 S.W.3d 159, 2011 Ark. App. LEXIS 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-mar-express-inc-v-poteete-arkctapp-2011.