CLAIM NO. E602380
JON HOYT, EMPLOYEE, CLAIMANT v. DISCOVERY, INC., EMPLOYER, RESPONDENT NO. 1 and AETNA, CARRIER, RESPONDENT NO. 1 and BACK STREET, EMPLOYER, RESPONDENT NO. 2 and HARTFORD, CARRIER, RESPONDENT NO. 2
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 13, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent No. 1 represented by BETTY DEMORY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by RANDY MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] Respondent No. 2 appeals and respondent No. 1 cross-appeals from a decision of the Administrative Law Judge filed January 28, 1997 finding that claimant was performing employment services on February 8, 1996, when he was struck by an automobile. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof.
[3] The evidence reveals that claimant was a part time employee of respondent, Discovery Club, during the winter months of 1995 and early 1996. (At the hearing, there was an issue of whether claimant was an employee of Discovery Club, Back Street, or both. Since we find that claimant was not performing employment services at the time of the incident, we find it unnecessary to reach the analysis of claimant’s employment status between these two entities.) When claimant last worked on the Sunday prior to February 8, 1996, he was advised to report to work on Thursday evening since there was a special event to take place on that night. Prior to claimant’s actual time to report to work on Thursday, claimant’s supervisor, Mr. Cedric Wesley, left a message at the number where claimant received phone messages advising claimant that he was not needed on the evening of Thursday, February 8, 1996. However, claimant apparently did not receive the phone message as he reported to work on that evening somewhere between 9:30 and 10:30 p.m. Upon arriving at work, claimant’s supervisor, Mr. Wesley, advised claimant that there had been a mix up and that claimant was not needed on that evening. Claimant admitted during the hearing that he was advised that he was not needed and that he was not on the clock for that evening.
[4] There is a dispute in the testimony regarding whether claimant did perform any employment services after being advised that he was not on the clock. Claimant testified that he did perform employment services in the nature of taking out trash and checking I.D.’s. Conversely, Mr. Wesley testified that it being a Thursday night without a special event scheduled (as there had been a previous mix up) there were no job duties for claimant to perform. The only two visitors to the club that night were an ABC Officer and a vice cop. Since these two visitors were known to the establishment, it was not necessary to check their I.D.’s. With regard to the job function of taking out trash, we cannot find claimant’s testimony to be credible. Claimant testified that the trash was always removed from the premises on the morning after the club had been opened all night. Since the trash was removed in the morning, there would be no trash for claimant to haul out upon arriving at work before the club had ever opened for the evening.
[5] Since claimant was not on the clock and he did not have a ride home, he remained at the club and drank coke or coffee which was provided to employees free of charge. At some time near midnight Mr. Wesley received a telephone call from someone at the Back Street asking for his assistance. When Mr. Wesley proceeded out the back door of the Discovery Club, the evidence reveals that the claimant was following. Mr. Wesley and claimant both testified that Wesley advised claimant not to get involved. Despite this admonishment, claimant continued to follow Mr. Wesley. Mr. Wesley testified that he did not attempt to keep claimant from following him as he has known other off-duty security personnel in the past have observed such situations out of mere curiosity. As they approached the Back Street, Mr. Wesley again advised claimant not to get involved as he was not on the clock. This testimony is corroborated by the claimant. Yet, claimant testified that when they arrived at the scene, Mr. Wesley asked for claimant’s assistance in opening a car door to place one of the unruly patrons in the car. This testimony is inconsistent with Mr. Wesley’s testimony and with the claimant’s incident report which was introduced into evidence by respondent No. 2. Mr. Wesley specifically testified that claimant did not participate in the confrontation of the two patrons. Claimant’s incident report, likewise, indicates that claimant did not participate in the confrontation but that he was present as “backup.” After Mr. Wesley and another security personnel were able to convince the unruly patrons to leave the premises, the patrons placed their car in gear and intended to run into Mr. Wesley or the other security guard. When Mr. Wesley and the other security guard successfully got out of their way, the patron then placed the car in drive and headed toward claimant. It was at that time that claimant was injured.
[6] Since claimant contends that he sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by
Act 796 of 1993. The record clearly indicates that claimant sustained injury as a result of the vehicle striking him on February 8, 1996. However, respondents both contend that the amended law excludes the claimant’s injury from definition of compensable injury. In this regard, the law provides the following exceptions for the definition of compensable injury:
(1) Injuries received by active participants in an assault or combat are excluded from the definition of compensable injury if the assault or combat is the result of non-employment related hostility or animus of one, both, or all of the combatants and if the assault or combat was a deviation from customary duties;
(2) Injuries received during horseplay, except as to innocent victims;
(3) Injuries occurring while engaging in recreational or social activities for the employee’s own pleasures;
(4) Injuries occurring at a time when employment services are not being performed;
(5) Injuries occurring before the employee was hired or after the relationship was terminated.
[7] Ark. Code Ann. §
11-9-102(5)(B). (emphasis added)
[8] In the present claim, we find that claimant failed to prove by a preponderance of the evidence that he was performing an employee service at the time of the accident. As discussed above, claimant was clearly not on the clock at the time the accident occurred. Although claimant contends that he performed employment services by the mere fact that he was present during the confrontation while he was wearing his security jacket, we cannot find that such activities amount to employment services. In our opinion, this case is substantially similar to Linda McCoy v.Klipsch and Associates, FC Opinion filed May 1, 1996 (
E408181). In that case, Ms. McCoy was assaulted by a former co-worker as she was standing outside of her employment building talking with a co-employee. Ms. McCoy testified that she was performing employment services while talking to the co-employee about production rates. In McCoy, we found that claimant was not performing employment services when she had finished her work for the day, clocked out, exited the building, and stopped to speak to a co-worker. The nature of the conversation Ms. McCoy described at the hearing was of production rates which involved, conceivably, employment services. However, Ms. McCoy’s description of her conversation was not consistent with her deposition testimony. In her deposition, Ms. McCoy testified that the conversation was just about general pleasantries and that the production output only came up in passing. The record in McCoy
further revealed that it was not claimant’s job duty to discuss the production output with that particular co-employee. In the case at hand, it was not claimant’s job duty to participate in a confrontation when he was not on the clock for respondent. Claimant was advised on at least two occasions, if not more, by his supervisor not to get involved in the confrontation. In our opinion, the credible evidence of record indicates that claimant was not involved in the confrontation especially in light of claimant’s incident report and Mr. Wesley’s testimony. Claimant just happened to be at the place of his employment where the confrontation took place which resulted in the patrons running over claimant. One’s mere presence at his place of employment does not equate to the performance of employment services. All that can be said in this case is that curiosity got the better of claimant, placing him in a situation which resulted in injuries to claimant. We cannot find that claimant’s curiosity amounts to the performance of employment services. Therefore, we find that the decision of the Administrative Law Judge must be, and hereby is reversed.
[9] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[10] Commissioner Humphrey dissents.
[11] DISSENTING OPINION
[12] I must respectfully dissent from the majority opinion finding that claimant was not performing employment services when he was struck by a vehicle on February 8, 1996.
[13] The record before us presents two distinct versions of the facts. It is at least clear that claimant did report to work on Thursday, February 8, 1996, and then discovered that he had been mistakenly scheduled. Claimant’s aunt, who had no telephone and could not be summoned, had dropped him off at work. This left claimant with no way home. From this point, claimant’s testimony differs considerably from that of his immediate supervisor, Mr. Wesley.
[14] According to claimant, he received instructions from Mr. Wesley to remain on the premises in case he was needed and did carry out some of his regular employment duties such as taking out the trash and checking patrons’ identification. Claimant also stated that he was issued a flashlight according to usual practice. Mr. Wesley denied that any of these events took place, and insisted that he instructed claimant to refrain from participating when the Back Street Club called for security assistance (the two establishments were approximately 200 yards apart). Claimant, in turn, denied that Mr. Wesley told him to stay behind.
[15] In any event, claimant did proceed with Mr. Wesley and another security guard to the Back Street Club’s parking lot. Again, the testimony differs substantially at this point. Claimant explained that he went along as a “back-up” and opened a car door while Mr. Wesley and the other guard forcibly placed two unruly patrons inside. Mr. Wesley, on the other hand, stated that the two men entered their vehicle voluntarily and that claimant played no part in the affair. Subsequently, however, as the two men departed, their vehicle struck and injured claimant (an act that appears to have been intentional).
[16] I find it unusual that Mr. Wesley would insist that claimant not get involved in the security call, but then permit claimant to accompany him the entire 200+ yards to the Back Street Club. Had Mr. Wesley truly meant for claimant to remain behind and not get involved, he could have certainly exercised sterner supervisory power. Since he did not, I agree with the Administrative Law Judge’s conclusion that respondent employer acquiesced to, and benefitted from, claimant’s presence at the scene. I would accordingly find that claimant was performing employment services at the time of his injury, even if no more than a passive “back-up” role.
[17] As set out above, I must respectfully dissent from the majority opinion.
[18] PAT WEST HUMPHREY, Commissioner
