CLAIM NO. E911499.
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 27, 2000.
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DEAN GARRETT, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by the HONORABLE DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
Respondent appealed the decision of the Administrative Law Judge that claimant sustained a compensable injury to her right ankle and foot; that claimant was performing employment related services at the time of her injury; that respondent is liable for claimant’s medical expenses; and that claimant was temporarily totally disabled from July 29, 1998 through October 1, 1998. Claimant argued in favor of the decision. After our de novo
review of the entire record, we reverse the decision of the Administrative Law Judge.
The Administrative Law Judge incorrectly held that respondent had the burden of proving that the claimant was not performing employment services, as an affirmative defense. On the contrary, under Arkansas workers’ compensation law, claimants have the burden of proving a compensable injury, which includes proving that the injury arose out of and in the course of employment and that it occurred while claimant was performing employment services. There is no burden of proof placed upon respondent to prove that any of the elements of compensability do not exist.
Further, we find that claimant failed to prove by a preponderance of the evidence that she was performing employment services at the time of her injury. Claimant testified that she had taken a bucket of food waste (“slop”) to the back room, and then she slipped and fell from the sidewalk while talking to a friend. “I came out, took the slop buckets to the area, walked over to have a word with a friend, and as I stepped, I fell.” The friend was Jeremy Cox, who was an employee of respondent, who was not working but was at his car getting ready to go fishing at the pond at the bottom of the hill. She explained that she walked on a concrete sidewalk or driveway to dump the slop and then walked across the driveway to speak to Mr. Cox. She explained that “when you come out of there [the slop room], you walk around the ways to the sidewalk to get back inside, and instead, I walked up to the pavement and stood there and had a word with a friend, like I said, and slipped and fell.” She agreed that she had to get off the sidewalk and cross the pavement to get to the place where she fell. The sidewalk led to the slop room from the back door of the facility.
Jeremy Cox, a former employee of respondent, testified that he saw claimant at the back door pushing a slop bucket and they said hello. Then he looked up and saw her ten or fifteen feet down the hill. He stated that the only reason an employee would come across the driveway to the top of the grassy hill would be to dump mop water. He stated that to dump slop, employees come out of the back door and go around the corner into the slop room.
Claimant’s supervisor, Betty Lindsey, testified that claimant called and told her that she fell down the hill when she was going to speak to Mr. Cox.
Radonna Lawrence, respondent’s accountant, testified that she spoke to claimant on the phone approximately four days after the injury, to take a statement for a workers’ compensation form. Lawrence stated that claimant explained the accident: “and she said she was taking slop to the slop room and that she saw Jeremy down the hill and that she was going after a shopping cart and that she slipped on the hill and fell down the hill, which we do have one shopping cart that we use to move boxes, like, from supplies and stuff around.” Claimant and Lawrence had a conversation in person on August 3 in which claimant “came up with her mother, and we asked her again what happened and she told us that she had went out to take the slop and that she had went over to the edge of the hill to talk to Jeremy, had slip down it. When we asked her about the shopping cart, she said there was no shopping cart.”
Claimant could not explain why there is a doctor’s report that she hurt her ankle going after a grocery cart.
In Dr. Trusell’s operative report dated July 31, 1998, the doctor noted the pertinent history as follows: “This 24-year-old female suffered a fracture of her right ankle on 07/28/98 when she was going after a shopping cart and twisted her ankle.”
The parties jointly introduced a rough sketch of the area involved which indicated that there is a concrete sidewalk adjacent to the back wall of the facility which leads from the back door of the facility to the slop room, which was on the same wall as the back door. There is a paved driveway parallel to the sidewalk. The grassy area parallel to the driveway is the top of the hill.
There is no doubt that claimant broke her ankle. However, whether she was performing employment services is very much in doubt. Claimant has presented conflicting descriptions of her accident to her physician, her supervisor, the accountant who took her statement and to the Commission. Either she was going to speak with Mr. Cox or she was going after a shopping cart. If she was going after a shopping cart, it appears that her injury might have arisen in her performance of employment services. However, claimant denied that there was a shopping cart involved at the hearing, and also to the accountant who spoke to her at the work place. Claimant firmly asserts that she had finished putting the slop bucket where it belonged, clearly a part of her job, and that she walked over to speak to Mr. Cox, before she returned inside to get a garbage can.
This claim is somewhat similar to the claim in Pattillov. Darling Store Fixtures, Full Commission Opinion Filed September 14, 1998 (WCC No. E707530), and in Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998). In Patillo, the claimant went to the restroom after hearing the bell signaling the end of the break period. She slipped when returning to her work station from the bathroom. In Harding, the claimant was injured on her way to a smoking area at the beginning of a break. In the current claim, claimant was injured on her way to take an unscheduled break. In Patillo and Harding, the argument was made, unsuccessfully, that the break periods indirectly advanced the interests of the employer by relaxing the employees. There is no suggestion here that claimant was advancing the interests of her employer by taking an unscheduled break to visit with an off-duty employee who was present only to go fishing. In fact, claimant testified that she had to go back inside because another employee with whom she was working was waiting on her. There is no plausible basis for considering claimant’s activity (walking away from the area in which she was reasonably working to have a social visit with a friend, in an unscheduled and unauthorized break) to be employment related services, in light of the Court of Appeals’ and the Commission’s determinations that walking to and from a break is not employment related services.
Claimant did not serve the employer’s interest by diverting from her duties to have a visit with an off-duty employee. In fact, claimant testified that she had already taken all her scheduled breaks for the day. Claimant was not performing employment services and had in fact diverted from her job duties in an activity which did not further the interests of her employer when she was injured. Visiting with her friend was an incidental activity which was not inherently necessary for the performance of a primary employment activity, and thus it did not carry out the employer’s purpose or advance the employer’s interest. McCool v.Disabled American Veterans, Full Commission Opinion June 3, 1996 (E410491); Kinnebrew v. Little John’s Trucks, Inc., 66 Ark. App. 90, 989 S.W.2d 541 (1999).
Claimant’s activities were clearly “social activities for the employee’s personal pleasure” and not employment services, and thus are not compensable. Ark. Code Ann. § 11-9-102(5)(B)(ii) and (iii). In McCool, supra, 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.” Here claimant deviated from her duties to have a “word” with her friend. If claimant had kept to her duties, she would not have been injured. If claimant had merely said “hello” on the way back inside, having not gone over to the car to chat, and had fallen on the way inside, her fall would have been compensable because she was performing employment services when she put the slop bucket in the slop room and returned to the facility to get the garbage can or to do other work. That is not what claimant did. “It was not the intent of the Workmen’s Compensation Law to provide general accident insurance.” Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S.W.2d 834.
After our de novo review of the evidence, we find that claimant has failed to prove by a preponderance of the evidence that she suffered a compensable injury arising out of and in the course of her employment. The Administrative Law Judge’s opinion is reversed in its entirety, and this claim is denied.
IT IS SO ORDERED.
___________________________________ MIKE WILSON, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
I concur in the principal opinion’s finding that the claimant was not performing employment services at the time of her injury. I point out that the essential facts in this case are not in dispute, and therefore, this case appears to turn on an issue of law, not fact. Under these circumstances, this case does not appear to turn on which party bears the burden of proof. However, for reasons discussed below, I concur that the claimant, not the respondent, has the burden of proof on the employment services issue.
I. Burden of Proof
As I understand the reasoning of the dissent and the administrative law judge, they each conclude that the provisions of Ark. Code Ann. § 11-9-102(5)(B) (Repl. 1996) are, in essence, affirmative defenses, since the respondents benefit if one of the provisions is deemed applicable. Consequently, the dissent and the administrative law judge conclude that the respondents bear the burden of proof on issues in Section 102(5)(B). Specifically, the dissent and the administrative law judge interpret Act 796 as requiring the claimant to establish that a particular injury arose out of and occurred in the course of employment, as required by Section 102(5)(A), then once this is accomplished, the burden shifts to the respondents to prove the necessary requirements to exclude such an injury under Section 102(5)(B).
I do not find this argument persuasive for the following reasons. First, the argument must be in error as a general proposition because the Courts have already stated on several occasions that the claimant (not the respondent) has the burden of proof in at least one portion of Section 102(5)(B). In this regard, the Courts have found that Act 796 amended prior law, and shifted the burden of proof to the employee to prove that alcohol or drug use did not substantially occasion an injury, if alcohol or drugs were found in the employee’s body after an accident.See, Wood v. West Tree Service, 70 Ark. App. 29, ___ S.W.3d ___ (2000); Express Human Resources v. Terry, 61 Ark. App. 258, 968 S.W.2d 630 (1998); Morrilton Manor v. Brimmage, 58 Ark. App. 252 S.W.2d 170 (1997).
Second, I note that the general rule has long been that the claimant bears the burden of proof to prove the compensability of a work-related injury. McFall v. Farmers Tractor Truck Co., 227 Ark. 985, 302 S.W.2d 801 (1957); Lybrand v. Arkansas OakFlooring Co., 266 Ark. 946, 588 S.W.2d 449 (Ark.App. 1979). Likewise, Ark. Code Ann. § 11-9-102(5)(E) (Repl. 1996) states that the burden of proof of a compensable injury shall be on the employee, and neither the dissent or the administrative law judge have directed us to any authority that mandates a shifting of the burden of proof as the dissent and the administrative law judge propose.
Since I am unable to glean any implicit or explicit legislature intent in Act 796 that mandates a shifting of the burden of proof suggested by the dissent, and absent any published authority from the Courts to date on this issue, I concur that the claimant has the burden of proof on an employment services issue, if an allegation is made.
II. Employment Services
The dissent asserts that the claimant’s “digression” from her most direct route to attend to her employment duties was a “minimal deviation”. The administrative law judge likewise characterized the claimant’s deviation as “de minimus”. However, as the principal opinion points out, but for the claimant’s deviation, the claimant would not have been walking in the spot where she became injured. I agree with the principal opinion’s conclusion that the claimant’s relevant actions in this case were in the nature of a “break”. Clearly, the claimant was taking a break from her work duties at the time she twisted her ankle and fell. As I understand the law, this case turns primarily on what
the claimant was doing when she got hurt (taking a break), more than where she was doing it (10-12 feet off her otherwise direct route). Under these circumstances, I fail to see how the claimant’s injury could be said to have occurred at a time employment services were being performed, as the administrative law judge and the dissent seem to suggest.
For all of the above reasons, I concur.
__________________________________ ELDON F. COFFMAN, Chairman
Commissioner Humphrey dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion in this case. In my opinion, claimant proved that she was performing employment services at the time of her injury.
The resolution of this case turns on whether claimant’s injury arose out of and in the course of her employment as required by Ark. Code Ann. § 11-9-102 (5) (A) (i), or whether the injury occurred at a time when employment services were not being performed. Ark. Code Ann. § 11-9-102 (5) (B) (iii). It seems that the legislature determined that some overlap existed between the two (i.e., an injury could arise out of and in occur in the course of the employment, yet be inflicted when employment services were not being performed).
Claimant must prove each element of compensability set out in § 11-9-102 (5) (A) (i). However, the Act does not specifically provide which party bears the burden of proof for the exclusions contained within § 11-9-102 (B). A review of this subsection suggests that the exclusions are in the form of affirmative defenses since respondents benefit if one of the exclusions is deemed applicable. Claimant must establish that her injury arose out of and in the course of her employment. After this is accomplished, the burden shifts to respondents to demonstrate that an award is barred based on an exclusion enumerated in § 11-9-102 (B).
The evidence showed that claimant’s accident arose out of and in the course of her employment. She was required to take slop buckets containing table scraps outside to a designated storage area. On July 28, 1998, claimant accomplished this task, and was returning to get a second container from the kitchen. She noticed the arrival of Jeremy Cox, a co-worker. Cox was not on duty, and claimant walked to the other side of the driveway to speak with him. When she reached the curb on the other side of the driveway, claimant twisted her ankle and fell. This description is substantially corroborated by Cox. In my opinion, both claimant and Cox testified credibly.
Claimant was returning from an assigned task. The fact that she was engaging in conversation with Cox at the time of the accident is insufficient to take her out of the course and scope of her employment. Her digression of approximately ten to twelve feet from the most direct route is a minimal deviation. Again, this would not take her outside of the course and scope of her employment or cause a cessation of her duties. In my view, the evidence failed to demonstrate that the injury occurred at a time when employment services were not being performed.
Claimant seeks medical benefits, which I would award based on a finding that the treatment was reasonably necessary. Likewise, I find that claimant is entitled to an award of temporary total disability benefits.
Based on the foregoing, I respectfully dissent.
_______________________________ PAT WEST HUMPHREY, Commissioner