CLAIM NO. E600393
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 18, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE BILLY J. HUBBELL, Attorney at Law, Crossett, Arkansas.
Respondents represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, PINE BLUFF, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] The respondents appeal an opinion and order filed by the administrative law judge on May 22, 1997. In that opinion and order, the administrative law judge found that the claimant proved by a preponderance of the evidence that she sustained a compensable injury. After conducting a de novo review of the entire record, we find the decision of the administrative law judge must be affirmed. [3] The claimant is certified as a school teacher and worked for the respondent employer for twenty-six years. For the first twenty-five years of her employment, claimant was a second grade teacher, but then became a Reading Media Resource Teacher. As a Reading Media Resource Teacher, the claimant worked in the library at three different schools, and she worked under the supervision of the librarian. [4] On June 6, 1996, the librarian, Ms. Lawrence, arrived and instructed the claimant to make some puppets for Ms. Fulton to use as an instructional aide. The instructions for this project were printed in very fine print, and the claimant went to retrieve her glasses from her purse. However, she discovered that she did not have her glasses and consulted Ms. Lawrence. Consequently, the claimant asked Ms. Lawrence if she could go to the office to call her husband and ask him to bring the glasses, and Ms. Lawrence instructed the claimant to do so. However, the claimant’s husband advised the claimant that the glasses were on her car seat, so the claimant went outside and retrieved the glasses from her automobile which was parked in the respondent employer’s parking lot. As the claimant was walking back into the building, she slipped on some ice and fell, sustaining multiple fractures of her tibia. [5] The respondents have refused to accept the claimant’s injury as compensable and contend that this claim is barred by the employment services exception to the definition of a compensable injury which is found in Ark. Code Ann. § 11-9-102(5)(B)(iii) (Repl. 96). The administrative law judge reserved all other issues that may have arisen in this claim pending a determination of the compensability of the claimant’s injury. [6] Act 796 amended the Arkansas Workers’ Compensation Law to exclude from the definition of compensable injury any injury sustained “at a time when employment services were not being performed”. Although the amended law does not define the term employment services, the Arkansas’s appellant courts have found that an employee is performing employment services at the time an injury occurs if (1) the injury occurs within the time and space boundaries of the employment while (2) the employee is carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly. An employee carries out the employer’s purpose or advances the employer’s interest when she engages in the primary activity which she was hired to perform or engages in incidental activities which are inherently necessary for the performance of the primary employment activity. See, OlstenKimberly Quality Care v. Cheri Pettey, 328 Ark. 381, 944 S.W.2d 381
(1997); Pilgrim’s Pride Corp. v. Caldarera, 54 Ark. App. 92, 923 S.W.2d 290 (1996); Fisher v. Poole Truck Line, 57 Ark. App. 268, 944 S.W.2d 853 (1997). [7] The respondents assert on appeal that this case is essentially indistinguishable from the Court of Appeals’ decision in Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). In that case the Court of Appeals found that the employment services exception of Act 796 eliminated the premises exception to the going and coming rule, and the Court found that under the facts of that case, a slip and fall in the school district’s parking lot was not performed while performing employment services. In support of their argument, the respondents state that the only factor which gives them any concern in the present case as compared to the facts in Hightower, is the time of the incident. In the present case, the claimant was injured during regular school hours after the claimant had already begun performing employment duties where the claimant inHightower was injured prior to starting her daily tasks. [8] The respondents also assert that the claimant’s assigned task of constructing a puppet was not one of the major duties of her work, that there was no completion deadline for performing that task, that the claimant did not need her glasses to perform her duties except to read fine print, that none of the claimant’s other major duties would require the use of her glasses, and that the claimant could have obtained her glasses during her lunch period (i.e. on her own time). The respondents also argue that going to her vehicle to retrieve her glasses is not one of the claimant’s employment duties. [9] However, after conducting a de novo review of the entire record, we do not find the respondents’ argument persuasive, and we find that the facts in this case are distinguishable from the facts presented in Hightower v. Newark Public School Systems. Moreover, we find that the facts in the present case are much more similar to the facts presented in Fisher v. Poole Truck Line,supra, on the pertinent issue of whether or not the claimant was engaged in an activity intended to carry out her employer’s purposes or advance her employer’s interest at the time she became injured. [10] In this regard, contrary to the respondents’ assertions, the claimant’s testimony establishes that making puppets that day wasnot an activity merely incidental to her employment. It was instead to be her primary duty that day. In this regard, her supervisor had instructed the claimant to make the puppets that day and even though the evidence indicates that she routinely performed duties that could be performed without her glasses, the claimant’s testimony establishes that her supervisor required the claimant to work making puppets that day and that the claimant’s supervisor did not want her to be working on any other duties (which might have been performed without her glasses). Moreover, the claimant’s testimony establishes that she could not make the puppets unless she was wearing her glasses and the claimant’s testimony establishes that her supervisor instructed her to take the action necessary to obtain her glasses. Consequently, in the present case we find that the interest of the claimant’s employer was clearly being advanced when the claimant set out to retrieve her glasses. In fact, we see no relevance in the evidence that there were other employment duties that the claimant could have
performed without her glasses in light of the evidence that the claimant’s supervisor required the claimant to retrieve her glasses in order to make the puppets. [11] In short, the preponderance of the evidence establishes that the claimant’s supervisor instructed her to make puppets and the claimant could not comply with this instruction without retrieving her glasses. In addition, the evidence indicates that the use of puppets as an instructional aide is an essential teaching tool, and the claimant’s supervisor directed the claimant to take the necessary steps to obtain her glasses so that she could comply with the supervisor’s instructions that the claimant make puppets. In order to comply with these instructions, the claimant was required to leave the library building proceed to her car and retrieve her glasses in order to perform her assigned duties. Therefore, the record establishes that the claimant departed the building and was exposed to the ice which caused her fall so that she could comply with her supervisor’s instructions. On these facts, we find that the claimant was engaged in an activity which benefitted the respondent employer when the injury was sustained. Consequently, on these facts, we find that the greater weight of the evidence establishes that the claimant was engaged in employment services at the time of her injury. [12] Therefore, after conducting a de novo review and for the reasons discussed herein, we find that the decision of the administrative law judge must be affirmed. [13] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996). [14] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[15] Commissioner Wilson dissents. [16] DISSENTING OPINION[17] I respectfully dissent from the majority’s opinion finding that the claimant sustained a compensable injury on January 8, 1996. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof. [18] In my opinion, this case is indistinguishable from the case of Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). In the Hightower case, the Court of Appeals determined that the claimant was not performing employment services at the time that she sustained an injury. The claimant was a day care worker who was called to school on a day where there was ice and snow. She was walking from her car to the building when she slipped and fell on the ice. The claimant suffered a back injury. [19] The facts in the present case are strikingly similar to the facts in the Hightower case. The claimant was walking from her car to the building when she slipped and fell on the ice. The claimant sustained an injury to her leg as a result of that fall. If you take the reasoning of the Court of Appeals in the Hightower
case wherein the Court cited the strict construction requirements of Act 796 of 1993, the claimant was not providing employment services at the time of her slip and fall. Consequently, she has failed to show that she sustained a compensable injury because she failed to show that she was in the course and scope of her employment at the time of the injury. [20] Therefore, for the reasons discussed herein, I respectfully dissent from the majority opinion. [21] MIKE WILSON, Commissioner