CLAIM NO. F003353
Before the Arkansas Workers’ Compensation Commission
ORDER FILED JULY 25, 2001.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ROBERT F. THOMPSON III, Attorney at Law, Paragould, Arkansas.
Respondents represented by the HONORABLE ERIC NEWKIRK, Attorney at Law, West Memphis, Arkansas.
Decision of the Administrative Law Judge: Remanded.
ORDER
The claimant appeals an opinion and order filed by the Administrative Law Judge on February 7, 2001. In that opinion and order, the Administrative Law Judge found that the decedent was not performing employment services at the time of his August 2, 1999 accident, when the decedent was driving to work in his personal vehicle and was involved in a fatal accident. After conducting a de novo review of the entire record, we remand this case to the Administrative Law Judge for more adequate findings.
The claimant asserted before the Administrative Law Judge that the rules of law articulated by the Arkansas Supreme Court inOlsten Kimberly Quality Care v. Petty, 328 Ark. 381, 944 S.W.2d 524 (1997) are controlling. The claimant argues that the decedent was required to bring his vehicle to work to make daily deposits at the Union Planter’s Bank in Osceola. The claimant also argued that by carrying auto parts back and forth between Autozone stores with the full knowledge of the employer, that the decedent was advancing the interest of the employer and saving them money. Under these circumstances, the claimant maintains that the Commission should find that the going and coming rule does not apply because the employer “required” and expected the decedent to use his personal vehicle as an integral part of his job. Conversely, the respondents argue that the decedent was not “required” to either bring his personal vehicle to work or make deliveries between Autozone Stores in various cities.
Nevertheless, the Administrative Law Judge declined to make any finding as to whether or not the claimant was “required” to perform these activities in the course of his work day using his personal vehicle. In this regard, the Administrative Law Judge stated:
If the decedent’s injury had occurred while making a bank deposit or while transporting parts between stores at the time of the fatal accident, the within claim may have been compensable. It is unnecessary to determine whether claimant was “required” to make bank deposits and transport parts between stores in his private vehicle because no such activity was being performed when the accident occurred. At the time of the decedent’s accident, he was merely driving to work, an activity required of most employees.
In order to avoid piecemeal litigation in this case of first impression, we remand this case to the Administrative Law Judge to make specific findings of fact as to whether or not the claimant was “required” to make bank deposits and transport parts between stores in his private vehicle within the meaning of the term “required” as used by the Arkansas Supreme Court in OlstenKimberly Quality Care v. Petty, 328 Ark. 381, 944 S.W.2d 524
(1997) in stating:
An additional factor determinative 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 a 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.” 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 be able to avoid. Furthermore, such a situation is for the benefit of and service to the employer. [Citations omitted.]
We hold all other issues in abeyance pending return of this file to the Full Commission by the Commission Clerk following the receipt of additional findings of fact made by the Administrative Law Judge on expedited remand.
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
MIKE WILSON, Commissioner
I respectfully dissent from the majority opinion remanding this case for more adequate findings. In my opinion, a remand is not necessary.
If the decedent’s injuries had occurred while he was making bank deposits or transporting parts between stores, then it would be necessary to determine if he was required as a part of his job to make bank deposits and transport parts in his private vehicle. However, these activities were not being performed at the time of the accident. Therefore, no additional determination is necessary.
The evidence in this case shows that the decedent was merely driving to work at the time that he sustained his injuries. In my opinion, the decedent’s accident did not occur at a time when employment services were being performed.
Therefore, I respectfully dissent from the majority opinion remanding this case to the Administrative Law Judge.
_______________________________ MIKE WILSON, Commissioner