CLAIM NO. E803861
RANDALL G. RAY, EMPLOYEE, CLAIMANT v. ARKANSAS HIGHWAY DEPARTMENT, EMPLOYER, RESPONDENT and PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 1, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE MARK D. LEVERETT, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1]
OPINION AND ORDER [2] The claimant appeals an opinion and order filed by the administrative law judge on October 21, 1998. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury. After conducting a denovo review of the entire record, we find that the claimant failed to establish by a preponderance of the evidence that, at the time of his injury, he was engaging in employment related activities. Accordingly, we find that the administrative law judge’s decision must be affirmed. [3] The claimant sustained an alleged job-related injury on or about March 26, 1998. The claimant, who was employed by the Arkansas Highway Department, was injured while driving a state vehicle in the vicinity of his job site. The claimant contends that the injury occurred while acting in the course and scope of his employment and that he is entitled to approximately three weeks of temporary disability benefits and reasonable and necessary medical treatment. The respondent denies that the claimant was acting in the scope of his employment, and has taken the position that the injury occurred while the claimant was on a personal errand. [4] The claimant was employed as a service attendant for the Arkansas Highway Department. The claimant’s job duties required him to provide routine maintenance and service to state vehicles owned by this agency. This type of maintenance included washing and fueling the cars, changing, rotating and balancing tires, and similar light maintenance. According to the claimant, one of his superiors had sent a state van to him to be serviced. The claimant stated that two to three weeks prior, he had serviced the van and noted a slight vibration when he test drove it. However, he testified that, at that time, he did not have time to fully investigate the matter so he did not take any further action. However, on the accident date, it appears the claimant was in the midst of a “slow day” so he decided to take the vehicle on a test drive to determine if the vibration was still there. While performing this test drive, the claimant stopped at an auto parts store on a personal errand. While returning to his place of employment, he was involved in an automobile accident and suffered injuries to his left arm. [5] The claimant also called as a witness Mr. Larry Watson. Mr. Watson testified that he was the claimant’s supervisor on the date of the injury. According to Mr. Watson, it was not uncommon for the claimant to test drive automobiles to determine if the wheels were properly aligned and balanced or to diagnose other minor problems. [6] The respondent called two witnesses. The first witness was Mr. Al Sacco who testified that at the time of the claimant’s injury, he was the head of the claimant’s department. He stated that it was his understanding that the claimant should not test drive vehicles. Mr. Sacco stated that it was the respondent’s policy that test drives should be performed by actual mechanics who would determine what was necessary to correct the problem. According to Mr. Sacco, the claimant’s job was to perform whatever maintenance he was directed to do by the mechanics or whatever person or department had sent the car to him for servicing. He also indicated that it was contrary to department policy for employees to run personal errands while driving state vehicles. Mr. Sacco also recounted a conversation he had with the claimant following the accident in which the claimant and Mr. Sacco discussed the accident and its cause. According to Mr. Sacco, the claimant advised him that he had been test driving the vehicle but had, in fact, detoured to buy some parts for his personal tractor. Mr. Sacco stated that the claimant apologized for wrecking the van and admitted he was wrong to have made the excursion for personal business. [7] The other witness called by the respondent was Mr. Scott Magby, the state employee to whom the van was assigned and who had been driving it prior to its delivery to the claimant. Mr. Magby stated that he was not aware of any vibration or any other problems with the van prior to the accident. He also testified that, earlier on the day of the accident, the claimant had asked him to pick up the parts. [8] The administrative law judge found that the claimant had not established that he was engaging in the course and scope of his employment at the time of his accident and, accordingly, denied the claim. From this decision, the claimant filed the present appeal. [9] The claimant’s testimony is that he was driving the car to check on a supposed vibration which he had detected when previously servicing the van. According to him, his decision to stop off on the personal errand was a spur of the moment idea. The claimant also stated that he took the route which brought him near the parts store because that was the closest stretch of highway he could find with a 70 mile per hour speed limit. [10] It is well-settled law in Arkansas that when employees doing job-related driving deviate from their employment on personal errands, they are nonetheless entitled to benefits if they are injured after completing their personal errand and have returned to their employment duties. Olsten v. Pettey,
328 Ark. 381,
944 S.W.2d 524 (1997). [11] In Sharpe v. Sharpe Chevrolet, Inc., Full Commission opinion, August 12, 1997 (
E602058), the claimant was delivering certain documents to her employer’s attorney. However, prior to delivering the documents, she detoured from the most direct route to the attorney’s office to complete a personal errand. She later was injured in an automobile accident while driving from the site of her personal errand to the attorney’s office. The Commission held that since the claimant had completed her errand and was proceeding to the attorney’s office by the most direct route available, she had resumed her employment related duties. [12] In order to prevail in this claim, the claimant must establish that he was engaging in job-related driving until his deviation, and that after completing his personal errand, he had returned to his job related duties. However, the evidence in this case casts doubt upon the claimant’s contention that his primary motive for driving the car was to test drive it. The claimant was obviously concerned with obtaining the parts in question since he previously requested Mr. Magby to pick up the parts earlier in the day. However, this plan did not work out since Mr. Magby declined to assist the claimant in this regard. Also, we note that Mr. Magby testified that the van had not had any vibration in it during the times he had driven it. We also believe that it is highly significant that the claimant did not advise either of his two co-employees of his intention to test drive the car nor did he take any other documentation to show that the van had any problems prior to his supposed test drive. Another factor which suggests that the claimant had no employment-related purpose in driving the van was that he and his subordinates had drawn unwelcome attention from their superiors because of their lack of duties on the day of the accident. In fact, the claimant candidly admitted that he was “needing stuff to do.” [13] After considering all of the testimony and evidence in the record, we find that the claimant did not establish that he was acting in the course of his employment at the time of his injury. It appears to us that the claimant’s purpose in driving the van was to accomplish his personal errand. The claimant’s concern with this matter is evidenced by the fact that he was requesting another employee to carry out this task earlier in the day. We believe that “test driving” the van was merely an excuse for the claimant to carry out his personal business. Consequently, we find that the decision of the administrative law judge must be, and hereby is, affirmed. [14] IT IS SO ORDERED.
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ELDON F. COFFMAN, Chairman ________________________________ MIKE WILSON, Commissioner
[15] Commissioner Humphrey dissents.