Hopper, 011218 ARWC, G500564

Docket Nº:WCC G500564
Case Date:January 12, 2018
Court:Arkansas
 
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JESSE HOPPER, DEC’D., EMPLOYEE CLAIMANT
JC FODALE ENERGY SERVICES, LLC, EMPLOYER RESPONDENT NO. 1
NEW HAMPSHIRE INS. CO., CARRIER RESPONDENT NO. 1
DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2
WCC No. G500564
Arkansas Workers Compensation
Before the Arkansas Workers’ Compensation Commission
January 12, 2018
         Hearing before Administrative Law Judge O. Milton Fine II on October 25, 2017 in Conway, Faulkner County, Arkansas.           Claimant represented by Mr. George Bailey, Attorney at Law, Little Rock, Arkansas.           Respondents No. 1 represented by Mr. Jarrod S. Parrish, Attorney at Law, Little Rock, Arkansas.           Respondent No. 2, represented by Mr. David Pake, Attorney at Law, Little Rock, Arkansas, excused from participation.           Hon. O. Milton Fine, II Administrative Law Judge.          STATEMENT OF THE CASE          On October 25, 2017, the above-captioned claim was heard in Conway, Arkansas. A prehearing conference took place on July 17, 2017. A prehearing order entered that same day pursuant to the conference was admitted without objection as Commission Exhibit 1. At the hearing, the parties confirmed that the stipulations, issues, and respective contentions, as amended, were properly set forth in the order.          Stipulations          At the hearing, the parties discussed the stipulations set forth in Commission Exhibit 1. With two additional ones reached at the hearing, they are the following, which I accept:
1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim.
2. The employee/employer/carrier relationship existed on December 7, 2014, when Claimant was involved in a fatal motor vehicle accident.
3. The date of Claimant’s death was December 7, 2014.
4. The report by Charles Kokes, M.D., that is in evidence as part of Respondents’ Exhibit 1 was generated in August 2016.[1]
         Issues          At the hearing, the parties discussed the issue set forth in Commission Exhibit 1. The following was litigated:          1. Whether the death of Claimant was compensable.          All other issues have been reserved.          Contentions          The respective contentions of the parties read as follows:          Claimant:          1. Claimant contends that Jesse Hopper sustained a compensable death by injury which occurred on December 7, 2014, during the course of and within the scope of his employment with Respondent employer.          2. Claimant contends that the cause of Jesse Hopper’s death was physical trauma sustained in the motor vehicle, tractor trailer crash without regard to any natural cause or alleged cardiac arrest prior to the motor vehicle crash, and that the claimant suffered trauma and traumatic positioning with cardiopulmonary arrest all occurring during and after the accident occurred.          3. Further, Claimant did not die from myocardial Infarction.          4. This claim has been controverted in its entirety.          Respondents No. 1:          1. Respondents No. 1 contend that the claimant did not suffer a compensable injury on or about December 7, 2014.          5. Respondents No. 1 contend that the claimant’s cause of death is not associated with his work activities and that to find compensability would be speculative, at best.          Respondent No. 2:          1. Respondent No. 1 has controverted this claim in its entirety.          2. The Trust Fund defers to the outcome of litigation on the compensability issue.          FINDINGS OF FACT AND CONCLUSIONS OF LAW          After reviewing the record as a whole, including medical reports, documents, and other matters properly before the Commission, and having had an opportunity to hear the testimony of the witnesses and to observe their demeanor, I hereby make the following findings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):
1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim.
2. The stipulations set forth above are reasonable and are hereby accepted.
3. Claimant’s estate has proven by a preponderance of the evidence that Claimant’s death on December 7, 2014 was compensable.
         CASE IN CHIEF          Summary of Evidence          The hearing witnesses were Claimant’s spouse, Shahida Hopper; Corporal Kevin Growns of the Arkansas State Police; Jason McCoy, the Conway County Coroner; Danny Coffman, the Chief of the Central Ridge Fire Department; and Rocky Maxwell, a cadet with the Center Ridge Fire Department.          In addition to the prehearing order discussed above, the exhibits admitted into evidence in this case consist of Claimant’s Exhibit 1, a compilation of his medical records along with the December 7, 2014 Arkansas State Police accident report, the Conway County Coroner’s report, Claimant’s death certificate, the Arkansas State Crime Lab Toxicology report on Claimant, and photocopies of 11 photographs of the accident scene, consisting of one index page and 42 numbered pages thereafter; Claimant’s Exhibits 2-8, seven color photographs of the accident scene; Claimant’s Exhibit 9, his death certificate; Respondents No. 1 Exhibit 1, another compilation of Claimant’s medical records, plus the report and curriculum vitae of Charles Kokes, M.D., consisting of one index page and 21 numbered pages thereafter; and Respondents No. 1 Exhibit 2, non-medical records including Arkansas State Police Crash Report and related documentation, Claimant’s death certificate, and correspondence from the Arkansas Law Enforcement Training Academy, consisting of one index page and 12 numbered pages thereafter.          In addition, an amended (to correct the date) letter from Dr. Kokes to counsel for Respondents No. 1 has been blue-backed to the record without objection. It, along with the email accompanying it, consist of two pages.          Testimony          Kevin Growns.          Called by Claimant’s estate, Cpl. Growns testified that he works for the Arkansas State Police. In December 2014, his rank was Trooper First Class. On December 7, 2014, he was dispatched to the scene of a motor vehicle accident. Either at the time he got the call or while en route to the scene–along State Highway 9–he was informed that the accident involved a fatality. Arriving at the scene, he observed a tanker truck on its side in a ditch.          He examined the scene, looking for such clues as ruts and skid marks, and took photographs. The purpose of this is to determine the cause of the accident. He identified the photographs that are in evidence as having been taken by him at the accident site that day. Growns’ testimony was that those photographs accurately depict how the scene looked that day. He stated that he prepared the accident report that is in evidence.          According to Growns, the portion of State Highway 9 where the accident took place is a “straight stretch.” Claimant had been traveling south. The shoulder–including the gravel portion–measures two-and-a-half to three feet wide, with only one foot being paved. But beyond the pavement, it drops off. The embankment goes into a ditch. The ditch is deep enough at a point that there is a concrete culvert there that runs under the highway.          Asked what his investigation showed, Growns responded:
[Claimant] traveled off the right side of the highway, went down the embankment. His truck overturned and rolled three quarters of a revolution and came to rest on its left side . . . [i]t rolled onto its right side onto its top, and then over onto its left side.
         The cab of the truck in which Claimant was riding came to rest on the driver’s side. The reason why the truck rolled was because once the right wheels of Claimant’s vehicle went off the road, the steep grade of the ditch caused the weight of the vehicle to shift to its right. Once the tanker truck completed three-quarters of a revolution, it struck a fence. Growns testified that based on his experience, a water tanker such as the one Claimant was driving is more prone to a rollover accident because the fluid load can shift more easily than a solid one.          While Growns’ investigation showed marks left on the highway by the edges of the left tires as the vehicle was being pulled down the embankment, he did not locate any skid marks. His testimony was that the brakes of the...

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