MWCC NO. 94 20834-F-3612

DIONNE HAWKINS                                                                                                                         CLAIMANT

vs.

TREASURE BAY HOTEL & CASINO                                                                                           EMPLOYER
AND
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA                                        CARRIER

REPRESENTING CLAIMANT:
Hon. Jack C. Pickett, Attorney at Law, Pascagoula, Mississippi

REPRESENTING DEFENDANT:
Hon. William D. Blakeslee, Attorney at Law, Gulfport, Mississippi

Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated September 21,1999.

SO ORDERED, this the 2nd day of February, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barney Schoby
Beverly Bolton
COMMISSIONERS

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC NO. 9420834-F-3612-C-00

DIONNE HAWKINS                                                                                                                         CLAIMANT

vs.

TREASURE BAY HOTEL & CASINO                                                                                            EMPLOYER
AND
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA                                                  CARRIER

APPEARING FOR CLAIMANT:
Hon. Jack C. Pickett, Attorney at Law, Pascagoula, Mississippi

APPEARING FOR EMPLOYER AND CARRIER:
Hon. William D. Blakeslee, Attorney at Law, Gulfport, Mississippi

1. Whether the alleged accidental injury arose out of the employment of the claimant with the employer;

2. Whether the alleged accidental injury occurred during the course and scope of the claimant's employment with the employer;

3. The nature and extent of disability and loss of wage earning capacity, if any, sustained by the claimant as a result of her employment with the employer;

4. Whether any medical treatment for which benefits are claimed is not compensable under the Act.

The claimant in this case is a 28 year old individual who was employed by the employer as a slot change person on the date of the accident stated in the petition to controvert. The parties stipulated to an average weekly wage of $300.00.

The claimant testified that several weeks before the date of the alleged accident, she moved in to an apartment complex with another employee of the employer, Monique Smith. The apartment complex where the claimant and Smith lived is located immediately adjacent to the Mississippi Coast Coliseum and Convention Center. The apartment complex and the Mississippi Coast Coliseum are separated by a chain link fence. At the time of the alleged accident, the employer was leasing a portion of the Mississippi Coast Coliseum parking lot for use by employees of the employer. A shuttle bus was used to transport the employees of the employer from this parking lot to the casino and back to the parking lot. A copy of the lease between the employer and the Mississippi Coast Coliseum Commission was introduced into evidence as an exhibit to the deposition of Dan Rajnic, security director for the employer.

On the day of the alleged accident, the claimant had just arrived at work when she was confronted by her roommate, Smith, who advised that she was going to take all the claimant's possession out of the apartment complex. It was the claimant's testimony that when Smith came to the casino, she told the claimant she was going to kill her.

The claimant testified that she was called in by her supervisor, Hugh Worden, who suggested that she needed to go to her apartment to check on her things. The claimant stated that she asked Mr. Worden for a security escort to her apartment to check on her possessions but this was refused.

It was the testimony of the claimant that she boarded a shuttle bus at the casino and rode to the employee parking lot at the Mississippi Coast Coliseum, where she got off the shuttle bus and was met by Smith. The claimant testified that an argument ensued as she and Smith walked across the Mississippi Coast Coliseum parking lot towards the apartment complex. The claimant stated that she and Smith walked through a gate in the fence separating the Mississippi Coast Coliseum parking lot and the apartment complex parking lot and she walked to her car in which her personal possession had been placed by Smith. It was the claimant's testimony that as she was inspecting her personal possessions in her car, Smith went to her car, which was also located in the apartment complex parking lot, and pulled out a knife. The claimant testified that Smith then walked over to her car and threatened her. The claimant testified that she began running around her car to try to get away from Smith, but Smith caught up with her and stabbed her seven times. It was the claimant's testimony that this altercation was broken up by several individuals and that officers from the Biloxi police department arrived shortly afterward and arrested Smith. The claimant stated that she was taken by ambulance to Biloxi Regional Medical Center. The claimant testified that she has also been treated at the LSU University Hospital in New Orleans.

On cross-examination, the claimant admitted it was not a part of her employment duties to leave employment to go back to her apartment and this was something that did not have anything to do with her employment with the employer. The claimant stated that when she arrived at the employee parking lot located at the Mississippi Coast Coliseum, she observed a security employee of the employer at this parking lot, but she did not go over and talk to him, nor did she think it was necessary to go talk to him because at that time she did not believe that Smith would assault her. The claimant testified that when she got to the gate in the fence between the employee parking lot at the Mississippi Coast Coliseum and the apartment co mplex parking lot, s he probably would have gone back to the employer's security tent in the employee parking lot if she had known Smith had the knife in her car.

The claimant admitted on cross-examination that she gave a recorded statement to officers of the Biloxi police department on September 24, 1994 in which she stated that she asked her manager if she could go home to get her possessions.
In his deposition testimony, Hugh Worden, the claimant's supervisor, testified that his recollection of his conversation with the claimant at the casino was that the claimant wanted to go home because she was concerned about her possessions. Mr. Worden testified that he had no recollection of the claimant requesting a security escort to go with her to the apartment complex.

Introduced into evidence in this case was a copy of the transcript of the plea hearing and the sentencing hearing held in the Circuit Court of Harrison County for the claimant's assailant, Smith. In the transcript of the sentencing hearing, Smith denies that she went to the casino and told the claimant she was going to kill her. In deposition testimony given by the claimant in December, 1997, there is detailed questioning regarding th e events of September 24, 1994, but there is no mention by the claimant that Smith came to the casino and threatened to kill her. In the transcript of the sentencing hearing, Judge Whitfield, the presiding Circuit Court Judge describe d the "official version of the facts" as including the following:

The victim, Ms. Hawkins, told the police that she had become Ms. Smith's roommate two weeks before the incident. During these two weeks they had several arguments.

On September 24, 19-- This should be 1995. It says "1996" ...Ms. Smith came to Ms. Hawkins' employment and told her she had packed all of her things and placed them in her car. The victim, Ms. Smith, (sic) left work and went to the apartment to see that all of her things were out. Ms. Hawkins stated that Ms. Smith then walked to the car and pulled a knife out and told her she was going to kill her. Ms. Smith then chased Ms. Hawkins around the car until she caught her and stabbed her.

Called as a witness on behalf of the employer was Dwayne Lee. Mr. Lee testified that he was the security employee on duty at the employee parking lot at the Mississippi Coast Coliseum on September 24, 1994. Mr. Lee stated that he saw the shuttle bus arrive at the employee parking lot of the Mississippi Coast Coliseum on September 24, 1994 and he saw the claimant get off the shuttle bus. Mr. Lee testified he was about ten feet away from the door of the shuttle bus when the claimant stepped off the shuttle bus. Mr. Lee stated that the claimant walked right by him and said "hi, how are you doing?" According to Mr. Lee's testimony, the claimant walked approximately 50 to 60 feet across the parking lot towards the apartment complex. where she was met by Smith. Mr. Lee testified that a minute or two later he observed the claimant and Smith involved in an altercation in the parking lot of the apartment complex.

Counsel for the claimant requested and was granted a 30 day post-hearing period within which to secure and file an additional medical report from Dr. Robert Teil. Since this report was not filed within the 30 day period, the record in this cause has been closed without receiving this report into evidence.

The undersigned Administrative Judge has carefully reviewed the evidence in this case. including the numerous documents introduced into evidence. There is nothing in the evidence introduced in this case to suggest that the argument or arguments between the claimant and Smith were in anyway related to their employment with the employer. To the contrary, the evidence introduced in this case indicates that the arguments between the claimant and Smith were personal and unrelated to their employment with the employer.

It is undisputed that the assault on the claimant which resulted in the stabbing occurred in the parking lot of the private apartment complex where the claimant and Smith lived. There is nothing in the records introduced into evidence, including the lease agreement between the employer and the Mississippi Coast Coliseum Commission, to suggest that the employer exercised any control over the parking lot of the apartment complex or had any responsibilities for security in the parking lot of the apartment complex. There is no evidence in the record in this case to suggest that the apartment complex parking lot was ever used in any manner by the employer or any employees of the employer other than the claimant and Smith who resided in the apartment complex. It is the opinion of the undersigned Administrative Judge that the mere physical proximity of the apartment complex parking lot to the employee parking lot at the Mississippi Coast Coliseum is not of any particular significance in determining whether this claim is compensable. It is further the opinion of the undersigned Administrative Judge that there is no evidence in the record in this case to suggest that the apartment complex parking lot should be considered a part of the premises leased by the employer at the Mississippi Coast Coliseum. The credible testimony in this case fails to support the claimant's contention that
Smith came to the casino and threatened to kill her. The credible testimony in this case also falls to support the claimant's contention that she requested a security escort to her apartment on the day of the altercation which resulted in the stabbing. It is the opinion of the undersigned Administrative Judge that the injuries sustained by the claimant on September 24, 1994 did not arise out of or result from any risk to which the claimant was exposed as a result of her employment with the employer. It is further the opinion of the undersigned Administrative Judge that the claimant was not in the course or scope of her employment with the employer at the time of injury and that the claimant had deviated from her employment for a personal purpose unrelated to the employer's business at the time of the altercation which resulted in the stabbing and injury to the claimant.
 

Having weighed and considered all the evidence and based on my judgment of the demeanor and credibility of the witnesses and on what I consider to be the reasonable probabilities and the credible evidence supported by medical findings, as required by law, I hereby make the following findings of fact:

1. That the alleged accidental injury to the claimant on September 24, 1994 did not arise out of the employment of the claimant with the employer;

2. That the alleged accidental injury to the claimant on September 24, 1994 did not occur during the course of the claimant's employment with the employer or in the scope of the claimant's employment with the employer;

3. That at the time of the alleged accidental injury to the claimant on September 24, 1994, the claimant had deviated from her duties with the employer for personal reasons unrelated to her employment with the employer.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the claimant's claim for workers' compensation benefits under the Mississippi Workers' Compensation Act is hereby denied and dismissed with prejudice.

SO ORDERED , this the 21st day of September, 1999.

W. A. THORNTON
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary