CLAIM NO. E706094
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 27, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CONRAD ODOM, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by the HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] The respondents appeal an Administrative Law Judge’s opinion filed November 26, 1997. The Administrative Law Judge found that the claimant has proven that she suffered a compensable injury to her back while employed by respondents on April 28, 1997, but that claimant has failed to prove that she suffered a compensable injury to her right knee. The Administrative Law Judge also found that the claimant has proven that she is entitled to temporary total disability benefits beginning June 12, 1997, and continuing through the date she is released to return to work by her treating physicians. The Administrative Law Judge found the respondents liable for all reasonable and necessary medical treatment provided in connection with the claimant’s compensable back injury. The claimant does not appeal the finding that she failed to prove a compensable right knee injury. After reviewing the entire record de novo, we reverse the Administrative Law Judge’s finding that the claimant sustained a compensable back injury. [3] The claimant, age 49, began employment with the respondent-employer, the Benton County Child Support Unit, in October, 1995. The claimant was employed as an investigator; her job duties primarily consisted of pursuing noncustodial parents in Benton County for enforcement of child support obligations. On April 28, 1997, the claimant was attending a two-week instructional seminar, which was held at the Holiday Inn Civic Center in Fort Smith, Sebastian County, Arkansas. Claimant attended the seminar with her supervisor and three co-workers. The purpose of the seminar was to train employees in new computer software the state was installing, and each attendee was assigned a computer terminal for hands-on training. Training was conducted on the second floor of the hotel. [4] The respondents provided an allowance for two dinner meals and lunch each day of the seminar. The claimant testified that all Benton County employees who attended the meeting ate lunch together each day. Selection of the restaurant was made each day by group decision. Employees were encouraged to eat together, so that the respondents could keep track of the receipts; however, eating with the group was not mandatory. Lunch was considered free time, and although work was sometimes informally discussed, luncheon topics also included families, the weather, shopping, etc. Ms. Kay Crabb, the claimant’s supervisor, characterized the conversation as “chatty talk.” [5] On the date of the alleged injury, April 28, 1997, the claimant and other Benton County Child Support Unit employees ate lunch at the Holiday Inn Civic Center. The group ate at the hotel restaurant, which was located on a different floor of the hotel from where the seminar was conducted. The claimant described the circumstances of the alleged injury:
A. As we got there, they were just setting up the buffet. We hadn’t liked it previously, so we all said, “Well, let’s go look and see what’s on there before we decide if we want to order buffet or from the menu. Some ordered from the menu, and some ordered from the buffet. As we walked up to the buffet, the floor was wet. I don’t know with what, but with liquid. And I slipped.
Q. Then what happened?
A. I grabbed onto a co-worker.
Q. And what was the co-worker’s name?
A. Diana Norman.
Q. Okay.
A. I was embarrassed, of course. As I fell, I pulled on her severely enough that I asked her if she was okay. I went in a forward turning motion as I grabbed for her. And I had severe pain in my back but also in my knee at that point.
Q. Well, did you go — did you fall all the way to the floor?
A. Just the knee went and touched the floor, but I didn’t fall all the way. I stopped my fall with Diana.
Q. Okay. Which knee did you hit? Do you remember?
A. My right knee.
Q. Okay. Did you require any medical attention at that time?
A. I didn’t seek any.
Q. Did — did the other co-workers see it happen?
A. Yes, they asked me if I was all right, had I harmed myself, and I told them I had pulled something. And that was about the extent of it.
Q. Okay. Did you go on and eat lunch that day?
A. Yes, I did.
[6] The claimant completed the seminar and resumed her normal activities. She did not seek medical treatment until June 5, 1997, when she presented to Bates Medical Center. The examining physician, Dr. Mark Rubertus, reported that the claimant slipped “approximately one month ago” but did not strike the ground. The claimant complained of shooting pains starting from the right side of her hip, down through her right leg to her right ankle. Dr. Rubertus’ impression was probable “pyriformis syndrome,” “cannot rule out retro-patellar pain syndrome.” Dr. Rubertus prescribed medication and referred the claimant to an orthopedist, Dr. James McKenzie. Dr. McKenzie examined the claimant on June 9, 1997 and thought that she had sciatica. Dr. McKenzie administered and prescribed medication, and he placed the claimant on restricted work duty. Dr. McKenzie returned the claimant to full, unrestricted work duty on July 8, 1997. [7] A lumbar spine MR without contrast was taken July 8, 1997. The impression was minimal broad central disk herniation L4-L5 with abutment of the origins of the L5 nerve roots. A neurosurgeon, Dr. Luke Knox, saw the claimant on July 14, 1997 and kept the claimant off work for eight weeks. Dr. Knox treated the claimant conservatively during this time, which treatment included introduction of physical therapy. On September 8, 1997, Dr. Knox kept the claimant off work an additional month. The claimant testified that she was terminated September 15, 1997 but was not given a reason for same. Ms. Crabb, claimant’s supervisor, testified that an audit revealed that the claimant’s files were not in compliance with program review requirements. [8] The claimant subsequently filed a workers’ compensation claim, contending that she sustained an injury to her back and hips while in the scope and course of her employment on April 28, 1997. The claimant contended entitlement to medical expenses, temporary disability benefits, and an attorney’s fee. The respondents contended that the claimant did not sustain an injury arising out of and in the course of her employment. Following hearing, the Administrative Law Judge found, “Based upon the fact that claimant was in Fort Smith at the behest of her employer, the fact that the respondent paid for the lunches, and the fact that the employees were encouraged to eat together as a group in order to facilitate payment, I find that this claimant was performing employment services at the time she slipped and fell on April 28, 1997.” After considering the MRI scan which showed a disc herniation, the Administrative Law Judge found that claimant proved, by a preponderance of the evidence, that she suffered a compensable injury to her back. We disagree and reverse. [9] The claimant alleges that she sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence. Therefore, she must satisfy the following requirements of Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996):[10] If the claimant fails to establish, by a preponderance of the evidence, any of these requirements, she fails to establish compensability of the claim. We must then deny compensation.Jerry D. Reed v. Con Agra Frozen Foods, Full Workers’ Compensation Commission, opinion filed Feb. 2, 1995 (E317744). [11] The first issue for our consideration is whether vel non the claimant was performing employment services at the time of the alleged injury. Ark. Code Ann. § 11-9-102(5)(A) (Repl. 1996) 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 the employee was acting “within the course of employment” at the time of the injury requires that the injury occur within the time and space boundaries of the employment, when the employee is carrying out the employer’s purpose or advancing the employer’s interests directly or indirectly. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 381 (1997), citing Pilgrims Pride Corp.v. Caldarera, 54 Ark. App. 92, 923 S.W.2d 290 (1996). [12] In Jackson v. Arkansas D.H.S., Full Workers’ Compensation Commission, opinion filed May 12, 1995 (E319835), we reversed an Administrative Law Judge’s decision that found the claimant proved that she sustained an injury arising out of and in the course of her employment. The claimant slipped and fell on October 29, 1993, while attending a potluck given by the employer. The potluck was held on respondent’s premises during lunch time, but attendance was voluntary. The claimant argued that her injury was compensable, because it occurred before her lunch break began. She contended that she was performing employment services, because she was susceptible to telephone calls until the very moment she began to eat. The Commission disagreed:(1) proof by a preponderance of the evidence of an injury arising out of and in the course of her employment (see, Ark. Code Ann. § 11-9-102(5)(A) (i) (Repl. 1996); Ark. Code Ann. § 11-9-102(5)(E) (i) (Repl. 1996); see also, Ark. Code Ann. § 11-9-401(a)(1) (Repl. 1996);
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death (see, Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996);
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury (see, Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996);
(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence (see, Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996).
[13] In Stenhouse v. Harvest Foods, Full Workers’ Compensation Commission, opinion filed October 13, 1995 (E402789), we affirmed an Administrative Law Judge’s finding that the claimant was not performing employment services when he was injured. On February 18, 1994, the claimant fell while attempting to step onto a pallet jack, sustaining a minor injury to his left arm. Claimant was en route to the respondents’ cafeteria to eat lunch when this incident occurred. The Commission found that the claimant had “substantially deviated” from his employment duties when he attempted to step onto the pallet jack. The evidence established that riding on a pallet jack was not part of the claimant’s job. In a Concurring Opinion, Commissioner Tatum wrote:In this case, claimant was waiting in line for food. She was not walking to a telephone to conduct business or conducting any business activity when she fell. Once claimant left her desk and began to actively participate in the potluck, by lining up with other employees, she was on her lunch break and was no longer performing an “employment activity.” The activity claimant was involved in during her lunch break bore no relationship to her employment and was not an event sponsored or planned by the respondent.
[14] We find that the statutory authority, case law, and evidence decisively indicate that the Full Commission must reverse the Administrative Law Judge and dismiss this claim. Claimant was employed as an investigator, pursuing noncustodial parents in order to enforce child support obligations. In April, 1997, the claimant was in Fort Smith, Arkansas, training in a new software program. The claimant was walking toward a luncheon buffet when the alleged injury occurred. In keeping with our decisions inJackson and Stenhouse, we find that the claimant was not benefitting her employer at the time of the incident. Whether or not the respondents were paying for lunch is of no moment. As inJackson, once the claimant began to actively participate in lunch, she was on her lunch break and was no longer performing an “employment activity.” The claimant was neither pursuing noncustodial parents nor training in the new computer program, her purpose for attending the seminar. The alleged injury did not occur within the time and space boundaries of claimant’s employment, as required by Ark. Code Ann. §11-9-102(5)(A)(i) (Repl. 1996). There is no authority under Act 796 of 1993, which we must strictly construe, that suggests the claimant was performing employment services. [15] Nevertheless, even if the claimant did prove that she was performing employment services at the time of the alleged injury, we find that the claimant failed to prove that the incident caused internal or external physical harm to the body. See, Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996). After the alleged slip and fall, the claimant ate lunch, completed the seminar, and resumed her normal activities. She did not seek medical treatment for over one month, when she presented to Dr. Rubertus on June 5, 1997. [16] In finding that the claimant sustained a compensable injury, the Administrative Law Judge primarily relied on the July, 1997 MRI, which showed a central disc herniation. However, we find the Administrative Law Judge’s reliance on this test to be misplaced — the MRI was taken nearly three months after the alleged injury. The greater weight of the evidence fails to show that the claimant’s disc herniation was a result of the April, 1997 incident. The claimant stated that she “pulled something” on this date, but there is not a medical opinion, nor any other evidence indicating that the abnormal MRI was a result of this incident. The mere possibility that the claimant’s employment caused or contributed to her condition does not suffice to support an award of compensation. Instead, the greater weight of the credible evidence must establish that the claimant’s condition is causally related to the employment. Speculation and conjecture can never be substituted for credible evidence, no matter how plausible. DenaConstruction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151 (1980). [17] Accordingly, based on our de novo review of the record, and for the reasons discussed herein, we find that the claimant failed to prove, by a preponderance of the evidence, that she sustained a compensable injury. We reverse the November 26, 1997 opinion of the Administrative Law Judge finding compensability and respectfully dismiss this claim. [18] IT IS SO ORDERED.The term “employment services” is clear. “Employment services” are those which an employee is hired to perform. Those services are not being performed at the time claimant is on a lunch break, participating in horseplay or participating in recreational activities strictly for claimant’s own enjoyment.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[19] Commissioner Humphrey dissents.