CLAIM NO. E910776
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 26, 2001
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE CHRISTIE G. ADAMS, Attorney at Law, Texarkana, Arkansas.
Respondent represented by HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge filed on August 7, 2000, finding that the claimant was performing employment services at the time of his fatal car accident. Based upon our de novo review of the record, we find that the decision of the Administrative Law Judge should be reversed.
The claimant was employed by the respondent-employer performing some employment services in Valliant, Oklahoma. The job lasted from 7:00 a.m. until 11:00 a.m. The claimant was paid for four hours of work. He was then assigned to another job in DeQueen, Arkansas, at the water treatment plant. The claimant was instructed to return to the respondent’s headquarters in Gillham, Arkansas, to begin readying the equipment for the job the claimant was going to start working on the following day at the DeQueen Water Treatment Plant. While en route from Valliant, Oklahoma, to Gillham, Arkansas, the claimant was involved in a fatal motor vehicle accident in Eagletown, Oklahoma. The respondents contend that the claimant was not performing employment services at the time of the fatal accident. I agree with the respondents.
Arkansas Code Ann. § 11-9-102(5)(B)(iii) (Supp. 1997) 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,” this Commission has previously held 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 interest. Cheri Pettey v. Olsten Kimberly QualityCare, Full Commission Opinion Sept. 13, 1995 (E405037) An employee carries out the employer’s purpose or advances the employer’s interest when he engages in the primary activity which he was hired to perform. Id.; Kenneth Behr v. Universal Antenna, Full Commission Opinion Dec. 6, 1995 (E408376). When an employee engages in incidental activities which are inherently necessary for the performance of the primary employment activity, the employee carries out the employer’s purpose or advances the employer’s interest. Id.
In a recent opinion, we held that when an employee leaves work five minutes early to go to the bathroom and wash her face and clean her glasses after being sprayed with catfish intestines, that employee was engaged in incidental activities which were inherently necessary for the performance of her job as a catfish gut sucker. Joan Jones v. FF Services, Inc., Full Commission Opinion April 23, 1996 (E409045). If the claimant in Jones were not a gut sucker, she would not accumulate blood and guts on her glasses necessitating the need to clean her glasses.
However, in Patricia McCool v. Disabled American Veterans, Full Commission Opinion filed June 3, 1996 (E410491), we found that the claimant “was not engaged in any activity that carried out the employer’s purpose or advanced the employer’s interest when the claimant deviated from her duties to go outside and smoke before she got “real busy.” Likewise, in Carla Ann Cole v. PrinceGardner, Inc., Full Commission Opinion filed August 26, 1996 (E408046), we found that when a claimant has finished work and is injured while walking across the employer parking lot, the injury was not compensable since employment services were not being performed. In Beaver v. Benton Co. Child Support Unit, Full Commission Opinion filed April 727, 1998 (WCC No. E706094), the claimant was a child support investigator attending a two-week instructional seminar. The claimant and her coworkers typically ate their meals together, and the respondents provided an allowance for two dinner meals and lunch each day of the seminar. Eating with the group was not mandatory, and lunch was considered free time. At lunch, the claimant and her coworkers went to look at a buffet when the claimant slipped and was injured. In making our decision that the claimant in Beaver was not performing employment related services, we looked to Jackson v. ArkansasD.H.S., Full Commission Opinion filed May 12, 1995 (E319835), in which we determined that the claimant was not performing work related services during her voluntary presence in the food line at an office potluck, before her actual lunch break started even though she was susceptible to telephone calls until the very moment she began to eat. We also looked to Stenhouse v. HarvestFoods, Full Commission Opinion filed October 13, 1995 (E402789). There, the claimant was not performing employment services when he was injured when he fell while attempting to step onto a pallet jack, 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.
The Arkansas Court of Appeals upheld the Commission’s decision in Beaver, in Beaver v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618 (1999). After reviewing the facts, the Court discussed the case of Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), in which the Court held that even if there was an indirect benefit to the respondent in that her break allowed the claimant to relax, which in turn helped her to work more efficiently throughout the rest of her work shift, “it was inherently necessary for the performance of the job she was hired to do,” and thus there was no error in finding that appellant was not performing employment services when she was injured. The Court went on to find that, in the Beaver case, the appellee paid for the lunches was of no moment, and it was inconsequential that appellee encouraged the group to eat together when viewed against all of the other evidence. The Court stated that there was substantial evidence to support a finding that appellant was not advancing her employer’s interest when she was on her lunch break walking to the buffet.
In Kinnebrew v. Little John’s Trucks, Inc., Full Commission Opinion filed June 10, 1998 (WCC No. E610157), the claimant was not performing employment services at the time of his injury, where the claimant’s injury occurred in the shower when his log books reflected him to be “off-duty.” It is undisputed that the claimant was not paid for the time he was “off-duty.” The Commission stated that there was nothing about the claimant’s grooming which carries out the employer’s purpose or advances the employer’s interest. The primary activity which the claimant was hired to perform was to drive a truck. The Court of Appeals affirmed the Commission in Kinnebrew v. Little John’s Trucks,Inc., 66 Ark. App. 90, 989 S.W.2d 541 (1999):
This court has affirmed on a number of occasions the Commission’s factual findings that a claimant injured while performing a personal task, even while on the employer’s premises, was not performing “employment services”for the purposes of compensability under Act 796 of 1993. Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). Even if the appellant was acting within the course of his employment under the “traveling salesman exception,” the evidence still does not support a finding that the appellant was performing “employment services” when he fell while taking a shower while off duty. Showering is not inherently necessary for the performance of the job he was hired to do. Consequently, we hold that the Full Commission did not err when it found that the appellant was not performing employment services at the time of his injury.
In Marks v. Stone Container Corporation, Full Commission Opinion filed August 11, 1998 (WCC No. E701493), the claimant was injured when he was startled awake by a hotel alarm clock which went off in the middle of the night at the hotel he was using while on a business trip. The Commission held that “In our opinion, sleeping and waking to turn off an alarm clock are not activities which are inherently necessary for claimant to perform the primary activity of his job as a sales manager for respondent.”
In Patillo v. Darling Store Fixtures, Full Commission Opinion filed September 14, 1998 (WCC No. E707530), the claimant was injured when she was returning to her work station after a break, and her foot slipped on a step. She argued, on public policy grounds, that her break advanced her employer’s interest by allowing her to relax, which in turn helped her to work more efficiently through the rest of her work shift. “In the present case, Act 796 of 1993 applies and, although appellant’s break may have indirectly advanced her employer’s interest, it was not inherently necessary for the performance of the job she was hired to do.” The Commission determined that the case was essentially indistinguishable from the Arkansas Court of Appeals’ recent decision in Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), and denied her claim.
On the other hand, the claimant prevailed where she was required to perform job duties while on break if necessary in Rayv. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558
(1999). The claimant, while on one of her two paid fifteen-minute breaks, slipped in a puddle of salad dressing as she was getting a snack from the cafeteria to eat during her break. Employees receive free meals for cafeteria workers as inducement for the employees to remain on the premises. Workers’ fifteen-minute breaks were occasionally interrupted if a student asks a worker for assistance, and if a worker on break was approached by a student, the worker was required to leave her break and address the student’s needs. The Court of Appeals reversed the Commission’s decision, finding that the employer did receive a benefit in that the claimant was required to assist student diners if the need arose, a task inherent to her job. The Court specifically noted that, unlike the break in Harding, supra, the employer in this case furnished food for its resting employees and paid for the break to induce them to be available to serve students even during the break period.
Likewise, in White v. Georgia-Pacific Corporation, 339 Ark. ___, ___ S.W.3d ___ (December 16, 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.
In our opinion, the claimant was not performing employment services at the time of the fatal motor vehicle accident. The claimant has the burden of proving by a preponderance of the evidence that he sustained the injury while he was within the course and scope of his employment. The claimant has failed to meet his burden of proof. The Arkansas Supreme Court has determined that employees are performing employment services when they are engaged in travel which is inherent and necessary incident of a required employment activity. In this case, we find that the claimant’s travel was not an inherent and necessary incident of his required employment activity. The evidence reveals that the claimant was not paid to travel to and from the work site. This case falls squarely within the coming and going rule where benefits are excluded for the travel time to and from work. The claimant attempts to akin this case to the Pettey
case. However, in Pettey, the claimant was required by her job to drive from residence to residence during her workday. Further, a finding that the claimant was not performing employment services at the time of the fatal accident is evidenced by the fact that the claimant was not on the clock at the time of the accident. The claimant had clocked out before he left Valliant, Oklahoma to return to DeQueen.
When all the evidence is considered, we find that the claimant has failed to prove by a preponderance of the evidence that he was performing employment services at the time of his fatal motor vehicle accident. Accordingly, the decision of the Administrative Law Judge is hereby reversed. The claimant’s claim for benefits is denied and dismissed.
We acknowledge the claimant’s Motion for Sanctions filed on January 2, 2001. The Motion asserts that the respondent’s failure to pay workers’ compensation benefits is wrongful and requests the Commission to award the claimant a 36% penalty for the respondent’s failure to pay an award timely. By the Commission’s decision rendered today, the claimant’s Motion is now rendered moot. Accordingly, we deny the claimant’s Motion.
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Turner dissents.
I must respectfully dissent from the majority opinion in this case.
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 FordMercury, 70 Ark. App. 35, 13 S.W.3d 916 (2000).
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. Exceptions to this rule are 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. (emphasis added). See Pettey, supra. Whether an employer requires an employee to do something has been dispositive of whether that activity constituted employment services. See Ray v.Univ. of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999); Coblev. Modern Business Systems, 62 Ark. App. 26, 966 S.W.2d 938
(1998); Campbell, supra. When a claimant is doing something that generally is required by his or her employer, the claimant is providing employment services. See Schults v. Pulaski CountySpecial 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).
The facts in the case are clear that the claimant was in fact performing employment services at the time of his accident. John C. Helms, Jr., president of respondent Tri-Lakes, testified that employees are sometimes required to travel from one job site to another and that on this particular day in question he had given the order for the claimant to do just that.
At times your employees are directed to travel from one job site to another job site on the same day, aren’t they?
A: Yes, ma’am.
Q: That’s what Dayne Bell’s job did this day, wasn’t it?
He was coming — reporting back to the shop. Yes, ma’am.
In your position as president of the company, you made a telephone call on the morning of August 30, 1999, didn’t you, in Valliant, Oklahoma?
Not to Greg personally, to the secretary of the job site.
And what conversation did you have with her?
That we had another job at the treatment plant to start the next day and when Greg and them finished one job, to come in and load equipment and stuff to get ready to go to the treatment plant the next day.
Your employee manual states that you expect ten hour days from your employees, doesn’t it?
Yes, ma’am.
Q: What would have happened, in your opinion, if Dayne Bell had refused to go to Gillham? He would have been out of line, wouldn’t he?
Yes, ma’am.
(R. 37, 39).
On August 30, 1999, the claimant, followed his employer’s directive. He worked at one job site from approximately 7 a.m. until 11 a.m., and when he was finished there, he left to report to another job site in Gillham, Arkansas, as ordered by his employer. See Campbell, supra. Claimant’s travel was definitely a necessary and inherent incident of his required employment activity. His workday was hardly completed when he left Valliant, Oklahoma, having worked only the first four hours of his normal 10- to 12-hour work day. When he left the Oklahoma job site to return to the Arkansas job site, the claimant was performing a task required by his employer.
It has been proved by a preponderance of the evidence that the claimant was performing employment services at the time of his fatal accident. Accordingly, I would affirm the decision of the Administrative Law Judge and award benefits.
For the foregoing reasons, I must respectfully dissent.
______________________________ SHELBY W. TURNER, Commissioner