HAYES v. EMPLOYMENT SECURITY DIVISION, 2000 AWCC 70

CLAIM NO. E807300

JERRY L. HAYES, EMPLOYEE, CLAIMANT v. EMPLOYMENT SECURITY DIVISION, EMPLOYER, RESPONDENT and PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 28, 2000

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

Claimant represented by the HONORABLE H. OSCAR HIRBY, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE RICHARD S. SMITH, Attorney at Law, Little Rock, Arkansas.

Decision of administrative law judge: Vacated and remanded.

ORDER
The respondents appeal an opinion and order filed by the administrative law judge on August 18, 1999. In that opinion and order, the administrative law judge found that Act 796 of 1993 did not repeal the Personal Comfort Doctrine. In addition, the administrative law judge found that, even if the Personal Comfort Doctrine was repealed by Act 796 of 1993, nevertheless, the claimant’s injury arose out of and during the course of his employment with the Employment Security Division. We vacate the administrative law judge’s opinion and order and remand for additional findings.

As an initial matter, we note that a factual dispute exists in this case as to whether the claimant was trying to enter the bathroom door, or was instead trying to go to the supply room at the time his injury occurred. The Personal Comfort Doctrine, which preexisted Act 796 of 1993 would appear to have no bearing on an injury sustained while attempting to reach the supply room to pick up supplies, but would have bearing on an injury sustained while traveling to the restroom. We also point out that, in at least one published decision, the Arkansas Court of Appeals has stated that the Personal Comfort Doctrine is no longer the law in Arkansas after Act 796 of 1993. See, Beaver v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618 (1999).

On the factual issue as to whether the claimant was traveling to the restroom or the supply room when his injury occurred, we note that the administrative law judge stated on page 8 of his opinion, without any elaboration, that the preponderance of the evidence reflects that the claimant was performing employment services when he was injured. On pages 9 and 10, the administrative law judge states that the claimant has maintained at all times that he was on his way to secure supplies to do his work when the injury occurred, and that the respondents’ assertion that the claimant was on his way to the bathroom when the incident occurred is based on speculation and conjecture.

The respondents have the following observations regarding the administrative law judge’s conclusory statements:

The AR-C signed by claimant on 6-18-98, states — somewhat confusingly — that he was “on my way to get supplies going to the bathroom with a dolly [to] load supplies before going back to my desk” when the accident occurred. (RX”A”, 20). The WCC Form N, signed by claimant on 6/3/98, states that he was hit as he “crossed the hallway and attempted to open the bathroom door” (RX”A”, 21). Claimant’s handwritten statement of 5/13/99 (RX”A”, 22) states “I was approaching the men’s room from the break room entrance, directly straight ahead” and “I was looking to reached [sic] for the door”. The Employees report of accident (“A” 22), signed by claimant on 6/3/98, states “walking from one room to bathroom at intersection, reaching for bathroom door.” In his recorded statement of 6/29/98 (RX “A” 22-24) claimant acknowledge (sic) that he had spoken to one of the ESD lawyers, who indicated to him that the claim “might not be covered” (30). During this statement claimant began to equivocate about what he was doing at the moment of impact. (39-42). He acknowledged that he had repeatedly stated, in the reports, that he was reaching for the bathroom door, but now insisted that he [was] not actually going to the bathroom. He was going to the supply room, and repeated references to reaching for the bathroom door had to do with his “stride position” and “stretched out position” and “trying to give a good description of what was going on.” Claimant repeated this rather tortured explanation at the hearing (T. 35). He also testified — having acknowledged that he was leaving the break room when the accident occurred — that he had [to] be in the break room to take a work-related phone call. As the record will reflect, this is a totally new allegation; nowhere in the record, prior to the hearing, did claimant suggest that he was in the break room for a work-related purpose. With all due respect, respondents assert that this testimony is simply incredible on its face. It seems clear that claimant had been in the break room and was headed to the restroom — was, in fact, reaching for the door — when he was hit. It was only after claimant discussed his claim with an ESD attorney, and learned that such an activity might not be compensable, that he began to contend that he was heading for the supply room, after receiving a “job-related” phone call in the break room. The preponderance of the credible evidence certainly suggests that claimant was taking a restroom break when he was hit. It was the mailman who was carrying supplies, and headed for the supply room, and not the claimant.

In light of the evidence cited to us on appeal, we do not agree with the administrative law judge’s conclusion, that the respondents’ assertion that the claimant was on his way to the bathroom is based on speculation and conjecture. Instead, the respondents’ assertion appears to be based on documentary evidence in the record that is not referenced in the administrative law judge’s analysis. We therefore remand this case to the administrative law judge for additional findings, after a complete review of the entire record, as to whether the preponderance of the evidence indicates that the claimant was traveling to the supply room or was traveling to the restroom at the time of his injury.

IT IS SO ORDERED.

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ELDON F. COFFMAN, Chairman

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MIKE WILSON, Commissioner

Commissioner Humphrey dissents.