CHRISTIAN v. EXCEL CORPORATION, 2000 AWCC 97

CLAIM NO. E811015

TROY CHRISTIAN, EMPLOYEE, CLAIMANT v. EXCEL CORPORATION, EMPLOYER, RESPONDENT and CRAWFORD COMPANY INSURANCE CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 30, 2000

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

Claimant represented by MICHAEL HAMBY, Attorney at Law, Greenwood, Arkansas.

Respondent represented by J. RODNEY MILLS, Attorney at Law, Fort Smith, Arkansas.

Decision of Administrative Law Judge: Affirmed as modified.

OPINION AND ORDER
The claimant appealed a decision of the Administrative Law Judge filed on November 10, 1999, denying his claim on the grounds that claimant failed to prove that he was performing employment services at the time of his injury. Respondent agreed with the decision denying the claim but cross-appealed the statement of the Judge that the claimant’s fall did cause a new injury or aggravated an old one. We affirm the opinion of the Judge, while noting that the finding that claimant failed to prove that the injury occurred while claimant was performing employment services obviated any need to enter a finding as to any other element of the claim and that the Commission does not make a finding as to whether the fall caused a new injury or aggravation of an old one.

Claimant testified that he works on a production line trimming meat. The plant workers get a 10 minute break in the morning and afternoon and a 30 minute lunch break. These breaks are scheduled and everyone goes at the same time, while the production lines are shut down. Claimant and his co-workers get 15 minute breaks in the morning and afternoon because of the equipment they have to take off and put back on. On the morning of December 3, 1997, claimant went on break with everyone else and went to the smoking break room and got a cup of coffee. When he sat down at a table in the break room, the chair collapsed and he fell to the floor, striking his hip against the wall and his bottom on the floor. He was embarrassed and did not register any pain until about an hour later when he began to experience stiffening and discomfort, which he reported. He was sent home about an hour later. He declined to see a doctor at that time.

The Commission and the appellate courts in Arkansas have addressed the employment services issue many times, and these rulings give us straightforward direction in this case. Claimant clearly was not performing employment services as he sat down in a break room, where he was not expected to perform any work duties during his break period and where the only benefit to respondent discernable could be perhaps the indirect benefit of relaxation. Claimant was free to spend the break as he wished, and was given additional time to get in and out of his protective gear, allowing him the full benefit of the break period along with other employees who did not use the protective gear.

In Beaver v. Benton Co. Child Support Unit, Full Commission Opinion Filed April 27, 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, claimant and her coworkers went to look at a buffet when 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. Arkansas D.H.S., Full Commission opinion filed May 12, 1995 (E319835), in which we determined that 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. Harvest Foods, 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 inBeaver, in Beaver v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618
(1999). After reviewing the facts, the Court discussed the case ofHarding 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 claimant to relax, which in turn helped her to work more efficiently throughout the rest of her work shift, “it was not 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 Truck, 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 claimant was not paid for the time he was “off-duty.” The Commission stated that there was nothing about claimant’s grooming which carries out the employer’s purpose or advances the employer’s interest. The primary activity which 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 received 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 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 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.

Claimant was not performing employment services while sitting down at a break table which collapsed. He was not expected or required to perform any duties related to his position as a trimmer. For this reason, based upon our de novo review of the entire record, we find that claimant has failed to prove his entitlement to compensation for the fall he took in the break room, and we make no other findings in this case. The decision of the Administrative Law Judge is affirmed as modified.

IT IS SO ORDERED.

_______________________________
ELDON F. COFFMAN, Chairman

_______________________________
MIKE WILSON, Commissioner

Commissioner Humphrey dissents.