BEHR v. UNIVERSAL ANTENNA, 1995 AWCC 248

CLAIM NO. E408376

KENNETH LEE BEHR, EMPLOYEE, CLAIMANT, v. UNIVERSAL ANTENNA, EMPLOYER, RESPONDENT, and TRAVELERS INSURANCE CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 6, 1995

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE LAURA J. McKINNON, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by the HONORABLE PHILLIP P. CUFFMAN, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on May 31, 1995. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. After conducting a de novo review of the entire record, we find that the Administrative Law Judge’s decision must be affirmed.

[3] The claimant was employed by the respondent employer as a quad-leg machine operator, and his duties involved operating the machine that shaped the legs that hold up satellite dishes. On or about July 1, 1994, after the claimant’s shift had ended and he was walking to his automobile which was parked on the respondent employer’s parking lot, he twisted his right ankle by stepping into a gully that had been caused over time by rain water falling from the roof of the respondent employer’s premises.

[4] Since the claimant contends that he sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. Act 796 amended the Arkansas Workers’ Compensation Law to exclude from the definition of compensable injury any injuries sustained “at a time when employment services were not being performed.” Ark. Code Ann. § 11-9-102 (5)(B)(iii) (Cumm. Supp. 1993). Although the amended law does not define the term “employment services”, this Commission has previously found that an employee is performing employment services when he is engaging in an activity which carries out the employer’s purpose or advances the employer’s interests. Cheri Petty v. Olsten Kimberly Quality Care,
Full Workers’ Compensation Commission, opinion filed Sept. 13, 1995 (Claim No. E405037). In Petty, supra, we recognized that an employee carries out the employer’s purpose or advances the employer’s interests when he engages in the primary activity which he was hired to perform. However, we also recognized that an employee also carries out the employer’s purpose or advances the employer’s interests when he engages in incidental activities which are inherently necessary for the performance of the primary employment activity.

[5] Under decisions interpreting the law in existence prior to the effective date of Act 796, injuries sustained while an employee is going or coming from work were not compensable as a general rule. Fisher v. Proksch, 20 Ark. App. 80, 723 S.W.2d 852 (1987); City of Sherwood v. Lowe,4 Ark. App. 161, 628 S.W.2d 852 (1982). Such injuries are not deemed to arise out of and in the course of employment.Mason v. Lauck, 232 Ark. App. 891, 340 S.W.2d 575 (1960);American Red Cross v. Hogan, 13 Ark. App. 194, 681 S.W.2d 417 (1985). The rationale for the going and coming rule is based on the fact that all persons, including employees, are subject to the recognized hazards of travel to and from work. City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982). Consequently, when traveling to and from the regular place of employment, the employee is not exposed to risks attributable to the employment. Instead, the employee is only exposed to risks which are common to all members of the general public.

[6] Clearly, the going and coming rule is not inconsistent with the amended law’s definition of compensable injury. Thus, the general rule was not affected by Act 796. However, under the law in effect prior to the effective date of Act 796, a number of exceptions to the going and coming rule were recognized, and several of these exceptions may not be consistent with the exclusion of injuries sustained while employment services were not being performed, at least as those exceptions have been applied in certain cases. Under one of these exceptions, the premises exception, an injury sustained while the employee is coming to or returning from his place of employment may be compensable if it occurs after the employee has reached a place so close to the employer’s premises as to be considered a part thereof.Davis v. Chemical Construction Co., 232 Ark. 50, 334 S.W.2d 697 (1960); Bales v. Service Club No. 1. Camp Chaffee,208 Ark. 692, 187 S.W.2d 321 (1945). The premises exception to the going and coming rule recognized that an employee is entitled to a reasonable time to leave his employer’s premises and that an injury suffered within that interval may be found to arise in the course of employment. Davis,supra; Johnson v. Clark, 230 Ark. 275, 322 S.W.2d 72
(1959); Bales, supra. In Bales, supra, the Arkansas Court of Appeals explained the justification for the premises exception by stating that “[t]he employment contemplated [the employee’s] entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose.”see also, Wentworth v. Sparks Regional Medical Center,49 Ark. App. 10, 894 S.W.2d 956 (March 15, 1995).

[7] However, strictly construing the provisions of the amended law as mandated by Ark. Code Ann. § 11-9-704
(c)(3) (Cumm. Supp. 1993), we find that the employment services exception to the definition of compensable injury under the amended law has eliminated the premises exception to the going and coming rule. As discussed, only injuries that are sustained while the employee is performing employment services are compensable under the amended law, and employment services are performed only when the employee is engaged in activities that carry out the employer’s purpose or advances the employer’s interests. While the employee is entering upon the premises or departing therefrom, as a general rule, he is doing no more to carry out the employer’s purpose or to advance the employer’s interests than he is while he is traveling to the premises.

[8] In the present claim, the claimant had completed his work day, and he had left his work station and exited the building to begin his journey home. Therefore, we find that he was not engaged in any activity to carry out the employer’s purpose or to advance the employer’s interests when the injury occurred. Thus, we find that he was not performing an employment service at the time the injury was inflicted upon him, and we find that his injury is excluded from the definition of compensable injury set forth in Ark. Code Ann. § 11-9-102 (5) (Cumm. Supp. 1993).

[9] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury as that term is defined under the amended law. Therefore, we find that the Administrative Law Judge’s decision must be, and hereby is, affirmed.

[10] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner

[11] Commissioner Humphrey dissents.