CLAIM NO. E809862
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 9, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by WILLIAM KROPP, III, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by WILLIAM FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
[1] OPINION AND ORDER[2] The respondent appeals a decision of the Administrative Law Judge filed on January 11, 1999, finding that the decedent-claimant was performing employment services at the time of his automobile accident which resulted in claimant’s death. Based upon our de novo review of the entire record, we find that claimant was not performing employment services when he was traveling to work on the morning of May 18, 1998. [3] At the hearing held on November 5, 1998, claimant’s beneficiaries contended that claimant died while performing employment services for respondent. Conversely, respondent contended that decedent-claimant was not within the course and scope of his employment at the time of his death, and that traveling to work does not constitute employment services. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent. [4] The facts in this case are relatively undisputed. The evidence reveals that on the morning of May 18, 1998, while traveling from his home in Van Buren, Arkansas to his place of employment in Booneville, Arkansas, claimant was involved in a one-vehicle accident which resulted in his death. As a finance manager for respondent, claimant routinely brought paperwork home in his briefcase. On the morning of his death, claimant’s briefcase contained sales contracts on which he had worked over the weekend. The evidence further reflects that as part of his compensation package, claimant was provided a company car and he was in this company car when the accident occurred. [5] Ark. Code Ann. § 11-9-102(5)(B)(iii) states:
[6] An employee is acting within “the course of employment” when an injury occurs if it occurred:An injury is not compensable if it was inflicted upon the employee at a time when employment services were not being performed, or before the employee was hired or after the employment relationship was terminated.
[7] Osteen Kimberly Quality Care v. Petty, 328 Ark. 381, 944 S.W.2d 381(1997). 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. Id.; Kenneth Behr v.Universal Antenna, Full Commission Opinion, December 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. [8] In two recent opinions, the Court of Appeals has affirmed findings of this Commission that a claimant was not performing employment services when a claimant was on her lunch break walking up to the buffet line when attending an out-of-town seminar, or when a truck driver sustained an injury when he fell while taking a shower while conducting a mandatory off-duty stop while out on the road. See, Judy Beaver v. Benton County Child Support Unit, ___ Ark. App. ___, ___ S.W.2d ___ (Opinion delivered April 14, 1999), and Allen Kennibrew v. Little John’s Truck, Inc., ___ Ark. App. ___, ___ S.W.2d ___ (Opinion delivered March 24, 1999). [9] In order to prevail on this claim, claimant must establish that the decedent was engaged in job-related driving while on his way to work. In our opinion, the evidence does not support this conclusion. Rather, the evidence reflects that claimant was on his way to work on that fatal Monday morning. In our opinion, the Administrative Law Judge’s reliance on Osteen Kimberly QualityCare v. Petty, supra, is misplaced. In Petty, it was found that traveling upon the roads from the office to a client’s home where care is given by a home health nurse is an activity which is inherently necessary for the performance of the primary activity of home health care. This is clearly distinguishable from a person who is traveling from their home to their place of employment. Simply because claimant was transporting documents on which he had worked over the weekend back to the office does not bring claimant’s activities within the realm of employment services. Returning the documents to work so that they can be further completed is merely an incidental activity in claimant going to work, but it is not the primary activity of claimant’s job as a finance manager. [10] In Kenneth Behr v. Universal Antenna, Full Commission Opinion filed December 6, 1995 (E408376), this Commission stated:“. . . within the time and space boundaries of the employment, when the employee is carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly.”
[11] When strictly construing the provisions requiring the performance of employment services at the time of an injury, we find that the employment services exception to the definition of compensable injury clearly excludes this claim from being compensable. 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 to this claim, as claimant was clearly not working on a sales contract at the time of his injury. [12] In finding that claimant was not performing employment services we find that this claim is factually distinguishable from the recent Court of Appeals decision in Ray v. University ofArkansas, ___ Ark. App. ___, ___ S.W.2d ___ (April 28, 1999). The pivotal fact in Ray centered on whether the claimant was required by her employment to be available during her break to assist students. It was during one such break that she sustained a compensable injury. Although the claimant in the present case had in his possession at the time of the accident a sales contract which he was returning to his place of employment, we do not find that this was a requirement of his employment. Therefore, we do not find the Court’s Opinion in RayUnder 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. Such injuries are not deemed to arise out of and in the course of employment. 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. 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. (Citations omitted)
controlling. All employees must travel from their homes to their place of employment. Claimant was traveling to work on Monday morning when he was involved in a fatal automobile accident. He just merely happened to have a contract with him when the accident occurred. As a finance manager, claimant was required to work on the sales contracts. Claimant had hoped to finalize the contract over the weekend, but prior to obtaining the customer’s signature, claimant discovered an error on the contract. If it was so important to finalize the contract, claimant could have gone to the dealership over the weekend, corrected the error, and obtained the customer’s signature as previously planned. Since this did not occur, it can be concluded that time was not of the essence in completing the paperwork. Consequently, we are not persuaded by any argument advanced that transporting the contract at this particular time to the dealership for corrections was required by his employer. The return of the contract is, in our opinion, a red herring to the pivotal facts to this claim. In our opinion, the relevant fact is that claimant was traveling to work when the accident occurred. Whether claimant had the contract in his possession at that time is irrelevant. As explained at the hearing, a duplicate contract could be created and, in fact, later was duplicated by the computer system at the dealership. Thus, it was not necessary or even required of claimant’s employment to have the contract in his possession at the time 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. [13] Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge must be reversed since we find that claimant has failed to prove by a preponderance of the evidence that he was performing employment services at the time of his death. [14] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[15] Commissioner Humphrey dissents. [16] DISSENTING OPINION[17] I must respectfully dissent from the majority opinion finding that the employment services test was not satisfied. [18] This is a tragic case involving the horrible death of a twenty-four-year-old man. The decedent was employed in the capacity of Finance Manager for respondent employer. Ms. Lorena Ellen Campbell testified that she was married to the decedent. She stated that in his capacity as finance manager, he often brought work home. Ms. Campbell testified that her spouse prepared contracts, handled the financing, and did the necessary paperwork for sales transactions. This entailed making phone calls from home. Ms. Campbell testified that a cellular telephone was secured through a company contract; however, respondent employer did not pay the monthly charges. She stated that her spouse used the cell phone for business activities. She explained that he scheduled meetings with clients, and obtained signatures on contracts. Ms. Campbell stated that conducting business off the employer’s premises was typical for her spouse. [19] The accident occurred on a Monday. Ms. Campbell testified her spouse brought paperwork home the Friday preceding his death. She stated that he reviewed a sales contract over the weekend. He discovered an error; therefore, he advised the buyer, Jeremy Roberts, that he could not sign the contract during the weekend. [20] Ms. Campbell stated that Monday, May 18, 1998, her spouse departed for work. She testified that he had his brief case with him; however, he failed to take his cell phone. She stated that he returned home to retrieve his cell phone. [21] Ms. Campbell testified that following the death of her spouse, she spoke with Randal Tyler. He informed her that the decedent had called the dealership just before the accident to explain that he would be late for a meeting scheduled with Chief Campbell, a potential buyer. Cell phone records show that the decedent placed the call to the dealership at 8:07. [22] Jeremy Roberts testified in claimant’s behalf. He stated he agreed to purchase a car, and drove the vehicle home on May 15, 1998. He stated that the decedent planned to deliver the sales contract for his signature over the weekend. When the decedent discovered an odometer statement error on May 17, 1998, they altered those plans. Mr. Roberts testified they rescheduled the meeting for May 18, 1998. He stated that the decedent planned to visit his home to complete the transaction. Mr. Roberts testified that the decedent called his home several times during the weekend. [23] Randal Tyler, company president, testified in claimant’s behalf. He stated that the decedent was an excellent employee. He indicated that the decedent was driving a company car at the time of his death. Mr. Tyler stated that the decedent was provided with a company car for conducting business, and that he often worked after hours. Tyler stated that this included taking work home, and conducting business at the homes of customers. He stated that he spoke with the decedent the night of May 16, 1998. The decedent worked on the 16th, and informed him of the sales figures for the day. [24] Respondents offered the testimony of Larry Shott, an employee of respondent employer. He stated that he spoke with the decedent when he called the dealership on the morning of his death. Mr. Shott testified that he said that he was in Greenwood, and would arrive at work soon. [25] On cross-examination, Mr. Shott stated that the decedent’s phone call was transferred to him. He testified that it is possible that the decedent asked the person who answered the phone to advise Chief Campbell of his tardiness. [26] The issue here is whether the decedent was performing employment services at the time of his demise. In Olsten KimberlyQuality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997), the Court of Appeals stated: “Whatever `performing employment services’ may mean in the context of Ark. Code Ann. § 11-9-102 (5) (B) (iii), it must include the performance of those functions which are essential to the success of the enterprise in which the employer is engaged.” The decedent routinely conducted business away from the employer’s premises, and he was furnished a company vehicle. He worked at home and traveled to the homes of customers. The weekend before his death, the decedent was reviewing a sales contract. He planned to obtain the buyer’s signature over the weekend. However, an error precluded the completion of the sales transaction. At the time of his death, the decedent was returning the defective sales contract to the dealership so that the error could be corrected. Clearly, claimant was required to return the contract to the dealership. [27] In their opinion, the majority finds it compelling that time was not of the essence with respect to the completion of the contract. In my opinion, this factor is not dispositive. InFisher v. Poole Truck Line, 57 Ark. App. 268, 944 S.W.2d 853
(1997), the Court of Appeals held that claimant was performing employment services when he was transporting the results of his physical examination from the physician’s office to the company premises. Claimant was not required to return the test results to the employer’s premises. However, he knew that he would be given a driving assignment when the employer had the test results. The court reasoned that the physical exam wholly benefited respondent employer, and the exam was conducted at the employer’s direction. [28] Here, the decedent was transporting a sales contract in a company vehicle to the employer’s premises. He had worked on the contract at home, and this practice was approved by respondent employer. Claimant was required to return contracts to the employer’s premises. More important, respondent employer gleaned benefit from the decedent’s off-premises work. Only minutes before the fatal accident, the decedent placed a business call to the dealership so that a customer could be informed that he was running late. Respondent employer benefited directly from these employment activities. [29] In my opinion, the decedent was performing employment services when the accident occurred. I would award death benefits. [30] Based on the foregoing, I respectfully dissent. [31] _________________________________ PAT WEST HUMPHREY, Commissioner