Jordan v. Pyle, Inc.

101 P.3d 239, 33 Kan. App. 2d 258, 2004 Kan. App. LEXIS 1172
CourtCourt of Appeals of Kansas
DecidedNovember 19, 2004
DocketNo. 91,485
StatusPublished
Cited by1 cases

This text of 101 P.3d 239 (Jordan v. Pyle, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. Pyle, Inc., 101 P.3d 239, 33 Kan. App. 2d 258, 2004 Kan. App. LEXIS 1172 (kanctapp 2004).

Opinion

Green, J.:

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 him and a coworker 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 die 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 [261]*261Woodward, 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 bréale 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.” When Jordan told Gagnebin to drop the matter, Gagnebin became more irritated and asked if Jordan “wanted a piece of him.” At that point, Jordan stood up so that he and Gagnebin were face to face. Decker testified that Jordan hit Gagnebin and Gagnebin fell to the floor.

According to Jarvis, when Gagnebin came inside the break room, he was trying to relay the message from the hotel manager about the microwave rental fee. The two men began yelling back and forth. Jarvis indicated that Jordan was more aggressive than Gagnebin. Jarvis did not know whether Jordan or Gagnebin swung first, but he saw the two men rolling around on the floor.

[262]*262Jordan ended up on top of Gagnebin on the floor. Decker ordered Jordan to get off of Gagnebin, and he and Jarvis separated the two men. Decker told Jordan to go to the job site. As Jordan was leaving the building, Gagnebin went after him and stabbed him in the head and neck. Jordan fell back onto a table in the other room.

On the day of the fights, Jordan received medical treatment for the stabbing at the Woodward Hospital Emergency Room. At that time, Jordan complained of swelling in his left thumb and a laceration to the left side of his head. Jordan did not complain of a back injury at that time, and the medical reports indicate that no back examination was performed. The treating physician released Jordan to return to work on that same day. Jordan indicated that after returning home, he noticed a bruise on his back and experienced back pain.

The day after the fights, Jordan received a certified letter informing him that he was fired from Pyle. According to Decker, Pyle has a “no tolerance” policy towards fighting, meaning that if an individual fights, he or she is fired. Decker was unaware of any written Pyle policy concerning fighting. Although there had been a fight a couple of years before that time, Jordan was not working for Pyle then.

Since the accident, Jordan has not been employed other than working for a friend for about 10 days earning approximately $12 an hour. Jordan indicated that he has made phone calls, talked to people in person, and filled out applications trying to obtain employment. At the hearing before the ALJ, Jordan presented a list of employers that he had contacted since July 6, 2001.

At the hearing before the administrative law judge (ALJ), Jordan indicated that he and Gagnebin had been involved in a long-standing dispute. Jordan testified that he had told Decker, David Pyle, who was the owner of Pyle, and the area foreman that they were not getting along; that Gagnebin was threatening him with fighting; and that he wanted his own room. Jordan indicated that he had his own room at one time, but in Woodward he was placed back with Gagnebin.

[263]*263Decker, however, denied knowing about any long-standing problems between Jordan and Gagnebin until the morning of February 23, 2000. Nevertheless, Decker knew that Jordan and Gagnebin did not like each other. On the other hand, Jarvis indicated that he was aware of a dispute that had been going on at least 2 or 3 weeks before the fights between Jordan and Gagnebin. Jarvis testified that David Pyle, the acting superintendent, was also aware of the dispute.

The first time that Jordan sought medical treatment for his back injury was in June 2000 when he saw Dr. Jane Drazek. At the June visit, Dr. Drazek diagnosed Nelson with low back pain with radiation into the lower extremity with possible radiculopathy. Although Jordan wrote on his patient information sheet that the date of accident was March 12, 2000, Jordan testified that his back was hurting previous to that date and he must have written the wrong date.

Dr. Drazek released Jordan from her care in July 2001, indicating that he had most likely reached a point of maximum medical improvement. Dr.

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Bluebook (online)
101 P.3d 239, 33 Kan. App. 2d 258, 2004 Kan. App. LEXIS 1172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-pyle-inc-kanctapp-2004.