CLAIM NO. F003353
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 17, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ROBERT F. THOMPSON, Attorney at Law, Paragould, Arkansas.
Respondents represented by the HONORABLE ERIC NEWKIRK, Attorney at Law, West Memphis, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
Claimant appeals to the Full Worker’s Compensation Commission an Administrative Law Judge’s opinion filed July 31, 2001, wherein the Administrative Law Judge found that decedent was not performing employment services at the time of his fatal accident on August 2, 1999 while driving his personal vehicle to work. After careful review of the entire record de novo, the Full Commission reverses the Administrative Law Judge’s decision and awards survivor benefits.
This case comes before the Full Commission for review after a remand of the Administrative Law Judge’s February 7, 2001 opinion and order wherein the Administrative Law Judge found that decedent was not acting within the course of his employment when he was fatally injured in a motor vehicle accident in route to work. The Commission remanded that opinion and order on July 25, 2001 for more adequate findings on whether decedent was required to use his personal vehicle to perform his employment duties during the course of his work day.
At issue is whether claimant was performing employment services within the meaning of Ark. Code Ann. § 11-9-102 when he was fatally injured in a motor vehicle accident upon his drive to work. Claimant, a store manager for respondent employer, was required to perform specific job duties for his employer, including making daily bank deposits at the company’s banking facility which was not in walking distance from the store. Claimant was not provided a company vehicle to complete this task. Of dispute is whether the fact that claimant used his personal vehicle in deployment of these services caused his accident to be compensable within the meaning of Arkansas’ workers’ compensation law.
Upon remand, the Administrative Law Judge found: (1) as a store manager, the decedent was required to make daily bank deposits using his private vehicle; and (2) the decedent was not required to transport auto parts between respondent employer’s stores in his private vehicle.
History
The decedent was a store manager for respondent employer in Osceola, Arkansas. He was killed at approximately 6:55 a.m. on August 2, 1999 in an automobile accident in Monette, Arkansas, while in route to work. Claimant contends that the decedent’s accident is compensable under the workers’ compensation statute because his employer required him to use his personal vehicle for work-related purposes.
Several witnesses testified that the decedent routinely used his personal vehicle to perform his work duties.
Charles Allison, district store manager and decedent’s immediate supervisor, testified that respondent employer provides vehicles for stores that have instituted a commercial delivery program. He stated that Osceola did not have a commercial vehicle on August 2, 1999, but has since then obtained one. Allison stated that managers are encouraged to maintain good customer relations with their account representatives and that managers would sometimes visit various accounts to accomplish this.
Steve May, a commercial specialist in the Paragould store, testified that it was respondent employer’s “policy” to go the extra mile for its customers, including delivering products or providing various other services to customers. He testified that the decedent routinely transported products between the Osceola and Paragould stores as part of his employment services. He further testified that he (and other employees, including the decedent) routinely used his personal vehicle to transport store goods to commercial clients.
Chris Parker, parts sales manager in Paragould, also testified that the decedent delivered store items in his personal vehicle.
Frank Gillespie, former employee in the Osceola store, testified that claimant delivered store products in his personal vehicle between the Osceola and Paragould stores on average of about twice per week. He further testified that the decedent also used his personal vehicle to visit store customers and service customer accounts.
Derrick Higgins, a commercial customer, testified that respondent employer routinely delivered parts to his business. He stated that at one point he attempted to buy a part from the Paragould store, but was told that they did not have it in stock. The Paragould store told him that decedent’s store carried the item. Higgins stated that he then called the decedent, who delivered the part to him. He stated that the decedent delivered the products in his personal vehicle and that decedent made this delivery a couple of months before his death.
J. W. Hall, another commercial customer, also testified that decedent routinely delivered products to his business and that decedent personally visited with him to solicit business for respondent employer, all of which was accomplished using the decedent’s personal vehicle.
On June 17, 1999, the decedent was reprimanded for failure to follow loss prevention guidelines, one of which was to make daily bank deposits. Decedent’s reprimand stated that failure to perform these duties could result in termination of employment. Allison testified that it was the decedent’s responsibility to make daily bank deposits at Union Planters Bank (formerly First National Bank) in Osceola:
So it’s down the highway a ways from the Auto Zone store?
I don’t know exactly how far it is. It’s not across the street.
How would you anticipate that Clay [the deceased] would have gotten from the Auto Zone store to the bank to make that deposit?
He would actually, you know, get in his vehicle and go to the bank.
You all didn’t provide a vehicle for him to go from the Auto Zone store to the bank everyday.
No.
(Deposition, p. 17-18).
Adjudication
The main issue is whether the circumstances of decedent’s death is encompassed under an exception to the “coming and going” rule that maintains that employee are not performing work-related services while coming to or going from work.
Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 1999), defines compensable injury as an accidental injury causing internal or external physical harm arising out of and in the course of employment. The test for determining whether an employee was acting in the course of employment at the time of his injury requires that the injury occur within the time and space boundaries of his employment while he is carrying out the employer’s purpose or advancing the employer’s interests directly or indirectly.See Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524
(1997); Campbell v. Randal Tyler Ford Mercury, 70 Ark. App. 35, 13 S.W.3d 916 (2000); Pifer v. Single Source Transportation, ___ Ark. ___, ___ S.W.3d ___ (March 7, 2002); Collins v. Excel SpecialtyProducts Co., ___ Ark. ___, S.W.3d ___ (March 7, 2002).
An employee is performing “employment services” when engaged in the primary activity that he or she was hired to perform or when engaged in incidental activities that are inherently necessary for the performance of the primary activity. Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998).
An employee generally is said not to be acting within the course of employment when he is traveling to and from the workplace, the rationale being that an employee is not within the course of his employment while traveling to or from his job. Id. There are numerous exceptions to the “coming and going rule,” including: (1) where the journey itself is “part of the service,” such as traveling men on a business trip, and instances where an employee must travel from job site to job site, regardless of whether the employee is paid for that travel time. Id. See Pettey,supra; (2) where an employee is injured while in close proximity to an employer’s premises; (3) where the employer furnishes transportation to and from work; (4) where the employee is injured on a special mission or errand; and (5) where the employer compensates the employee for his time from the moment the employee leaves home until the moment the employee returns. City of Sherwood v. Lowe, 4 Ark. App. 161 628 S.W.2d 610
(1982).
Whether an employer requires an employee to do something has beendispositive of whether that activity constituted employment services. (emphasis added). See Ray v. Univ. of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999); Coble v. Modern Business Systems, 62 Ark. App. 26, 966 S.W.2d 938 (1998); Campbell, supra. When a claimant is doingsomething that generally is required by his or her employer, the claimantis providing employment services. (emphasis added). See Schults v.Pulaski County Special School District, 63 Ark. App. 171, 976 S.W.2d 399
(1998) (claimant custodian was awarded benefits for injury sustained while he was entering the building to check the alarm system because he was performing a duty for his employer).
An additional determinative factor of whether an employee’s travel is within the course of employment is whether the employee is required to furnish his own conveyance. `If the employee as part of his job is required to bring with him his own car, truck or motorcycle for use during his working day, the trip to and from work is by that fact alone embraced within the course of employment.’_(emphasis added). The theory behind this principle of law is that the obligations of the job reach out beyond the premises, making the vehicle part of the employment environment and compelling the employee to submit to the everyday hazards associated with road travel, which he or she would otherwise for able to avoid. Furthermore, such a situation is for the benefit of and service to the employer.
Pettey, 328 Ark. at 386, quoting 1 Arthur Larson, The Law of Workmen’s Compensation §§ 17.51, 17.52 (1996).
In the recent cases of Collins and Pifer, the Arkansas Supreme Court reiterated its position that whether an employee is engaged in employment services is directly related to whether that employer is engaged in activity that either directly or indirectly advances the employers’ interest. Pifer v. Single Source Transportation, ___ Ark. ___, ___ S.W.3d ___ (March 7, 2002); Collins v. Excel Specialty Products Co., ___ Ark. ___, S.W.3d ___ (March 7, 2002).
In these cases the Court stated:
Since 1993, we have twice been called upon to construe the statutory language found in section 11-9-102(4)(A)(i) and 11-6-102 (4)(B)(iii). See White v. Georgia-Pacific Corp., supra, and Olsten Kimberly Quality Care, supra. We have held that an employee is performing “employment services” when he or she “is doing something that is generally required by his or her employer. . . .” White v. Georgia-Pacific Corp., 339 Ark. at 478, 6 S.W.3d at 100. We use the same test to determine whether an employee was performing “employment services” as we do when determining whether an employee was acting with “the course of employment.” White v. Georgia- Pacific Corp., supra; Olsten Kimberly, supra. The test is whether the injury occurred “within the time and space boundaries of the employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly.” White v. Georgia-Pacific Corp., 339 Ark. at 478, 6 S.W.3d at 100 and Olsten Kimberly, supra.
Pifer v. Single Source Transportation, ___ Ark. ___, ___ S.W.3d ___ (March 7, 2002); Collins v. Excel Specialty Products Co., ___ Ark. ___, S.W.3d ___ (March 7, 2002).
In Collins and Pifer the Court held that the employees in each case were performing employment services when they were injured while going to and coming from a restroom break. Id.
In the present case, six witness testified that decedent routinely delivered (in his personal vehicle) parts and services to respondent employer’s customers and that such activity was explicitly encouraged by respondent employer. While decedent was not the only employee to perform such duties for respondent employer, he certainly was ultimately responsible for ensuring that his store customers were satisfied and that they received the products they needed.
Allison, decedent’s immediate supervisor, testified that while decedent was not required to deliver products between stores, decedent was required to make daily bank deposits. He further testified that the bank was not within walking distance of the store, that the store did not provide the decedent with a vehicle to perform this task, and that he expected that the decedent would have to use his personal vehicle to make these deposits.
The facts in this case support the conclusion that respondent employer did require the decedent to use his personal vehicle to perform work-related tasks. In fact, respondent employer’s reprimand to the decedent just six week prior to his death plainly warned that the decedent risked being fired if he failed to make daily bank deposits. The Commission finds that this reprimand constituted respondent employer’s requirement that decedent use his personal vehicle since they did not provide a commercial vehicle for his use. The decedent’s act of driving his personal vehicle to work each morning directly advanced respondent employer’s interest because his personal vehicle was the means by which decedent used to carry out his required daily employment services.
This Commission finds that claimant is entitled to death benefits, as decedent was acting within the course of his employment at his time of death. Accordingly, we reverse the Administrative Law Judge’s decision and award benefits.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann.§ 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
________________________________ SHELBY W. TURNER, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
JOE E. YATES, Commissioner
The relevant facts in this case are not in dispute and this case presents essentially an issue of law: Is an employer liable for workers’ compensation benefits for an employee’s accident that occurs during the morning drive to work if the employee is required to use his own vehicle to make a bank deposit for his employer at some point during the work day?
The dissent asserts that the answer to this question is “no” and that the circumstances presented in the present case are analogous to the circumstances presented in Campbell v. Randall Tyler Ford Mercury, 7 Ark. App. 35[70 Ark. App. 35], 13 S.W.3d 916 (2000). However, there was no argument made in Campbell that the claimant in that case used his personal vehicle for company business during the course of the work day, as occurred here. Therefore, the relevant facts in the present case are arguably distinguishable from Campbell. On the other hand, dicta quoted in the principal opinion from Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997) seems to indicate that the trip to and from work is within the course of employment if the employee is required to bring his own vehicle to work to perform his job. Based on the rule of law from Professor Larson’s treatise which the Arkansas Supreme Court quoted with approval in Pettey, supra, I concur that the claimant’s accident in the present case arose out of and in the course of his employment at a time when employment services were being provided.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Yates dissents.
DISSENTING OPINION
JOE E. YATES
I respectfully dissent from the majority opinion finding that the decedent was within the course and scope of his employment at the time of his death. Based upon my de novo review of the record, I find that the decedent was not performing employment services at the time of his death.
Arkansas Code Ann. § 11-9-102(5)(B)(iii) (Supp. 2001) states:
An injury is not compensable if it was inflicted upon the employee at a time when employment services were not be performed, or before the employee was hired or after the employment relationship was terminated.
Although the statute does not define the term “employment services,” the Supreme Court has stated that an employee is performing employment services when she is engaging in an activity which carries out the employer’s purpose or advances the employer’s interest, either directly or indirectly, and is doing something that is generally required by his or her employer. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). See also Pifer v. Single Source, ___ Ark. ___, ___ S.W.3d ___ (March 7, 2002), and Collins v. Excel Specialty Products, ___ Ark. ___, ___ S.W.3d ___ (March 7, 2002). In both Collins Pifer, the Supreme Court found that both claimant’s were performing employment services at the time of their injuries. The claimant in each case was taking a restroom break at the time of their injuries. The Supreme Court found that a restroom break was a necessary function and directly or indirectly advanced the employer’s interests.
Likewise, in White v. Georgia-Pacific Corporation, 339 Ark. 474, 6 S.W.3d 98 (1999), the Supreme Court reversed the Commission’s and the Court of Appeals’ denial of benefits. The claimant was injured when he slipped while taking a smoking break. The Supreme Court determined that since the claimant was not provided a relief worker during his breaks, and thus had to monitor his work station during his smoking breaks and to interrupt his break if necessary, that he was performing employment services. The Court found that an employee is performing employment services when he or she “is doing something that is generally required by his or her employer . . .” White at 478.
In my opinion, this case is more akin to the case of Campbell v.Randall Tyler Ford Mercury, 7 Ark. App. 35[70 Ark. App. 35], 13 S.W.3d 916
(2000). The claimant in Campbell was on his way to work at the time that he sustained fatal injuries in a one-vehicle accident. The Commission found and the Court of Appeals affirmed the finding that the claimant was not performing employment services at the time of the accident. The claimant’s job duties in Campbell required him to draw up contracts and paperwork and also handle the financing associated with purchasing a vehicle. The claimant was the respondent-employer’s financial manager. He used a company car to go to and from work and to handle company business after hours. The claimant often brought contracts home and, in fact, had one in his car at the time of his fatal accident. The claimant was traveling to work at the time of the accident. The Full Commission stated:
In our opinion, Claimant’s traveling to work does not elevate Claimant’s activities to the level of activities which carry out the employer’s purpose or advances the employer’s interests. Claimant was not employed as a courier to transport documents. Claimant was a finance manager. As a finance manager, he was required to work on sales contracts. Whether he worked on these contracts at home or at the office is immaterial for this claim, as Claimant was clearly not working on a sales contract at the time of his injury.
. . . The relevant fact is that the Claimant was traveling to work when the accident occurred . . . Claimant’s primary activity as a finance manager on the particular morning did not involve driving to work as that is an activity required of all employees. Consequently, we do not find that it was a risk attributable to his employment as a finance manager. Nor do we find that Claimant’s employment imposed greater risks or demands on him in traveling to or from work. This case is a classic going and coming case and an accident which occurred when Claimant was going to work is not compensable.
Campbell, 13 S.W.3d at 918. Additionally, the Arkansas Court of Appeals went on to add the following:
Although he had some contracts in the car which he had worked on during the weekend, neither working on these contracts over the weekend nor transporting them in his car was something he was required to do as part of his job or even something the Appellee asked him to do. Appellant’s journey itself was not part of the service, and Appellant was not required, as part of his job, to bring with him his own vehicle for use during the work day.
Id. at 920.
This case is distinguishable from the Pettey case. In Pettey, the Court found that an employee must be carrying out the employer’s purpose or advancing the employer’s interest, directly or indirectly. The claimant in Pettey was a nursing assistant and was on her way to a patient’s home when she sustained her injury. However, in this case, the decedent was merely going to work when he sustained his injuries. The Court stated inPettey that “an employee is generally said not to be acting within the course of his employment when he or she is traveling to and from the workplace.”
The evidence shows that the decedent was merely driving to work at the time he sustained his injuries. He was not compensated for driving to work, nor was he traveling during regular business hours. Therefore, in my opinion, the decedent’s accident did not occur at a time when he was performing employment services. There is no evidence in the record to indicate that at the time of the fatal accident the decedent was using his personal vehicle to deliver parts to the Osceola store. Since the accident occurred in the early morning before the start of the work day, it is clear that the claimant was not making a bank deposit either. The decedent would make bank deposits at the close of the business day. A preponderance of the credible evidence reflects that the decedent was merely driving to work at the time of the accident. This case also does not fall into any of the recognized exceptions to the coming-and-going rule. The claimant’s journey itself was not part of the service as required by the holding set forth in the Pettey case.
After my de novo review of the evidence, I cannot find that the decedent was performing employment services when he was merely traveling to and from work. Therefore, I find that the decedent has failed to prove by a preponderance of the evidence that he was performing employment services at the time of the fatal accident. Accordingly, I must respectfully dissent from the majority opinion awarding benefits.
_______________________________ JOE E. YATES, Commissioner