CLAIM NO. E512460
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 17, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DONNA D. GALLOWAY, Attorney at Law, Stuttgart, Arkansas.
Respondent represented by JOSEPH E. KILPATRICK, JR., Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed January 17, 1996 finding that the claimant sustained an injury arising out of and in the course of her employment. Based upon our de novo review of the entire record, we find that the claimant has failed to prove by a preponderance of the evidence that the injury she sustained on August 15, 1995 prior to beginning work on that date is a compensable injury. Therefore, we reverse the decision of the Administrative Law Judge.
[5] Although the statute does not define the term “employment services,” this Commission has previously held that an employee is performing employment services when he is engaging in an activity which carries out the employer’s purpose or advances the employer’s interest. Cheri Petteyv. Olsten Kimberly Quality Care, FC Opinion Sept. 13, 1995 (E405037) An employee carries out the employer’s purpose or advances the employer’s interest when he engages in the primary activity which he was hired to perform. Id.;Kenneth Behr v. Universal Antenna, FC Opinion Dec. 6, 1995 (E408376). When an employee engages in incidental activities which are inherently necessary for the performance of the primary employment activity, the employee carries out the employer’s purpose or advances the employer’s interest. Id. [6] In a recent opinion, we held that when an employee leaves work five minutes early to go to the bathroom and wash her face and clean her glasses after being sprayed with catfish intestines, that employee was engaged in incidental activities which were inherently necessary for the performance of her job as a catfish gut sucker. Joan Jonesv. FF Services, Inc., FC Opinion April 23, 1996 (E409045). If the claimant in Jones were not a gut sucker, she would not accumulate blood and guts on her glasses necessitating the need to clean her glasses. [7] However, in Patricia McCool v. Disabled AmericanVeterans, FC 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.” Likewise, in Carla Ann Cole v. Prince Gardner, Inc., FC Opinion filed August 26, 1996 (E408046), we found that when a claimant has finished work and is injured while walking across the employer parking lot, the injury was not compensable since employment services were not being performed. [8] In the present claim, we cannot find that the claimant’s activities at the time of her injury were inherently necessary for her performance as a sewing machine operator. At the time of the accident, the claimant had not been to her sewing machine; she had not started work. In our opinion, employment services were not being performed. The mere fact that the claimant had clocked in does not prove by a preponderance of the evidence that the claimant was performing employment services at the time of her injury. In fact, the claimant had to backtrack and reenter the lobby after clocking in so that she could fill her cup with ice. This diversion occurred before any work activity took place. The claimant could have filled her cup with ice when she first entered the lobby prior to clocking in, yet she did not do so. Neither this diversionary tactic of backtracking to obtain a cup of ice nor having a cup of ice first thing in the morning are inherently necessary in the performance of one’s job as a sewing machine operator. JoanJones v. F.F. Services, supra; Patricia McCool v. DisabledAmerican Veterans, supra and Carla Ann Cole v. PrinceGardner, Inc., supra. [9] Accordingly, we find the claimant did not sustain a compensable injury since her injury was inflicted at a time when employment services were not being performed. Therefore, we reverse the decision of the Administrative Law Judge and dismiss this claim. [10] IT IS SO ORDERED.An injury is not compensable if it was inflicted upon the employee at a time when employment services were not being performed, or before the employee was hired or after the employment relationship was terminated.
ELDON F. COFFMAN, Chairman ALICE L. HOLCOMB, Commissioner
[11] Commissioner Humphrey dissents.