Opinion
CLAIM NO. F405689
OPINION FILED FEBRUARY 23, 2006
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by Honorable Thomas W. Mickel, Attorney at Law, Conway, Arkansas.
Respondent represented by Honorable R. Scott Morgan, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
Respondents appeal the June 23, 2005, opinion of the Administrative Law Judge finding that the claimant was performing employment services on August 20, 2003, when he was driving to work. Based upon our de novo review of the entire record, we find that the claimant has failed to meet his burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be reversed.
The facts in this claim are not in dispute. The claimant was employed by respondent employer as a manager for the Domino's Pizza in Bryant, Arkansas. The claimant is a salaried employee. The claimant lived in Jacksonville. On August 20, 2003, the claimant was scheduled to be at the Bryant store at 3:00 p.m. Prior to going to the Bryant store, the claimant attended a corporate meeting in North Little Rock which began around 8:00 or 9:00 in the morning. After this meeting which lasted about two or three hours, the claimant met the owner of Xtreme Pizza at a gas station on Hwy 10, and then rode with him to the Domino's Pizza on Chenal Parkway to observe a demonstration of a process to make a new pizza. After this demonstration, which lasted about an hour and a half, the claimant was taken back to his car, where he then proceeded to go to the Bryant store. The claimant was rear ended by another car when he was two blocks from the store. According to the claimant he telephoned the owner on his Nextel cellular phone at exactly 4:01 p.m. prior to even getting out of his car. The claimant did not pursue a workers' compensation claim for this injury until after he quit working because of a problem he had with the owner unrelated to this accident.
Claimant's injury occurred after July 1, 1993, therefore, this claim is governed by Act 796 of 1993. Ark. Code Ann. § 11-9-102(5)(B)(iii) states:
An injury is not compensable if it was inflicted upon the employee at a time when employment services were not be performed, or before the employee was hired or after the employment relationship was terminated.
Act 796 further requires that the provisions of the workers' compensation statutes be strictly construed. Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996) In Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W.3d 1 (2002), the Arkansas Supreme Court stated:
Act 796 defines a compensable injury as "[a]n accidental injury . . . arising out of and in the course of employment. . . ." Ark. Code Ann. § 11-9-102(4)(A)(i). A compensable injury does not include an "[i]njury which was inflicted upon the employee at a time when employment services were not being performed. . . ." Ark. Code Ann. § 11-9-102(4)(B)(iii) (emphasis added). However, Act 796 does not define the phrase "in the course of employment" or the term "employment services," Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). It, therefore, falls to this court to define these terms in a manner that neither broadens nor narrows the scope Act 796 of 1993. Ark. Code Ann. § 11-9-1001 (Repl. 1996). When the meaning of a statutory term is ambiguous, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000). Although the statute does not define the term "employment services," the Commission as well as the Arkansas appellate courts have 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 directly or indirectly. Cheri Pettey v. Olsten Kimberly Quality Care, Full Commission Opinion Sept. 13, 1995 ( E405037); 328 Ark. 381, 944 S.W.2d 381 (1997). 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, Full Commission 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.
The Arkansas Supreme Court has held that the same test used to determine whether an employee was acting within "the course of employment" is to be used to determine whether the employee was performing "employment services." Collins v. Excel Spec. Prod., 347 Ark. 811, 69 S.W.3d 14 (Mar. 7, 2002); Pifer v. Single Source Transp., supra. The test is whether the injury occurred "within the time and space boundaries of employment, when the employee [was] carrying out the employer's purpose or advancing the employer's interests directly or indirectly." Id. This test has also been previously stated as whether the employee is "engaged in the primary activity that [s]he was hired to perform or in incidental activities that are inherently necessary for the performance of the primary activity." Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W.2d 956 (1996), aff'd, 328 Ark. 381, 944 S.W.2d 524 (1997). Employment services are performed when the employee does something that is generally required by his or her employer.
In Patricia McCool v. Disabled American Veterans, Full Commission Opinion filed June 3, 1996 ( E410491), the Full Commission 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, inCarla Ann Cole v. Prince Gardner, Inc., Full Commission Opinion filed August 26, 1996 ( E408046), the Full Commission 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. See also,Coble v. Modern Business Systems, 62 Ark. App. 26, 966 S.W.2d 938 (1998); Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998).
Whether an employee is performing employment services at the time of an accident depends on the particular facts in each case. In Wallace v. West Fraser South, ___ Ark. App. ___, ___ S.W.3d ___ (CA 03-1335, Ark. App. 2-16-2005), aff'd. ___ Ark ___, ___ S.W.3d ___ (Sct. 05-254 Ark. 1-26-06), the court stated:
The ALJ and the Commission concluded that appellant's injury was not compensable because he was "coming off break" at the time of the injury. However, it is the activity occurring at the time of the injury, not the activity that preceded it, that is relevant to the question of whether appellant was performing employment services.
The facts in this claim are undisputed. At the time of the injury the claimant was driving to work. Earlier in the day the claimant had attended a management meeting and a new product demonstration. The claimant was not injured during either of these activities which took place away from the claimant's store. The claimant was no longer attending managerial meetings and he was not in route to or from a new product demonstration when he had an accident. After this meeting and demonstration, the claimant could have returned home had he not been scheduled to work that afternoon. Accordingly, we cannot find that the claimant's activities from the morning have any bearing upon the claimant's status at the time of his wreck. In our opinion the claimant's morning activities of managerial meetings and new product demonstrations had ended. Had he not been scheduled to work, the claimant's work day would have ended at that time. After these meetings the claimant's job duties and responsibilities were not to resume until he arrived at his store in Bryant. At the time of his injury the claimant was merely driving to work like he usually did every day he was scheduled to work. At the time of the accident the claimant was not on the clock nor was he in any manner performing any activity that either directly or indirectly advanced his employers interest other than going to work. Merely traveling to work does not bring one within the time and space boundaries of one's employment. This claim is clearly distinguishable from Cheri Pettey v. Olsten Kimberly Quality Care, Full Commission Opinion Sept. 13, 1995, ( E405037); 328 Ark. 381, 944 S.W.2d 381 (1997), where the claimant was injured in a car wreck while traveling as a home health nurse. In our opinion it is more akin to Maupin v. Pulaski County Sheriff's Office, ___ Ark. App. ___, ___ S.W.3d ___ (CA 04-727, 2-16-2005) wherein the Court of Appeals addressed whether a claimant traveling to work was within the time and space boundaries of their employment. In this regard the court stated:
Second, appellant's argument focuses solely on whether appellant, at the time of his injury, was carrying out the employer's purpose or advancing the employer's interest, directly or indirectly. This ignores the remainder of the "employment services" test, i.e., whether the injury occurred within the time and space boundaries of the employment. Given the evidence that the injury occurred before appellant's work shift had started, and while appellant was outside the territorial jurisdiction of the department by which he was employed, we hold that the Commission could reasonably conclude that appellant's injury was sustained at a time when employment services were not being performed.
In our opinion, the claimant has failed to prove by a preponderance of the evidence that he was within the time and space boundaries of his employment when he was rear-ended on his way to work. Therefore, we find that the claimant has failed to prove by a preponderance of the evidence that he was performing employment services at the time of his injury. Accordingly, we find that the decision of the Administrative Law Judge must be reversed.
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
I must respectfully dissent from the Majority opinion finding that the claimant was not performing employment services at the time of his injury. After a de novo review of the record, I find that the claimant was performing employment services at the time of his injury. Accordingly, in my opinion, the decision of the Administrative Law Judge should have been affirmed.
The claimant worked as a manager for the respondent. He was paid $600 a week and was a salaried employee. He testified that he worked around 45 hours a week; however, there was no testimony given regarding what his typical schedule was. The claimant testified that he was required to use his personal vehicle to perform tasks such as getting food for the employer. He further indicated that he was required to attend off-site manager meetings and training seminars. When attending those meetings or performing errands for the employer, the claimant was not paid mileage or travel expenses.
On the date of injury, the claimant was required to attend a scheduled meeting at an offsite location. The purpose of the meeting was to discuss advertising fees for the employer's business. The claimant drove his personal vehicle to the meeting and when it was over, he met his supervisor, Mr. Acklin, at a Shell Station. The claimant testified he met Acklin at the station because Acklin did not want to drive to the Chenal store on his own. Once at the Chenal store, the claimant and Acklin learned how to make a new type of pizza. The purpose of learning to make the new pizza was to train crew members and other stores how to make the pizza.
When finished, Acklin drove the claimant back to the Shell station. The claimant then proceeded to drive to the store he managed. The claimant had previously been scheduled to work that afternoon. The claimant testified that he was running late and had to arrange to have someone open the store for him. He said he drove straight to the store and that he did not stop for any reason. The claimant indicated he chose his route so as to avoid construction and traffic. Approximately two blocks from the store, the claimant was making a left hand turn and was hit by another vehicle. Immediately after the wreck, the claimant contacted Acklin and informed him of it. As a result of the wreck, the claimant sustained injuries for which he is now seeking workers' compensation benefits.
The sole issue that the Majority addresses is whether the claimant was performing employment services at the time of his injury. The Majority finds that the claimant was not acting in the course and scope of employment at the time of the injury and that therefore he should be denied benefits. In supporting this argument, the Majority opines that the claimant, "was no longer attending managerial meetings and he was not in route to or from a new product demonstration when he had an accident. After this meeting and demonstration, the claimant could have returned home had he not been scheduled to work that afternoon. Accordingly, we cannot find that the claimant's activities from the morning have any bearing upon the claimant's status at the time of the wreck." As a result of these findings, the Majority goes on to indicate that the claimant was not within the, "time and space boundaries" of employment and that his actions at the time of injury did not further the employer's interests.
In my opinion, the Majority errs in their conclusion that the claimant was not on the clock or in route to or from the new product demonstration at the time of the injury. This is directly in contradiction with the claimant's testimony that he was required to attend the product demonstration, that his supervisor asked him to drive with him to the meeting, and that he went directly from the demonstration, returned Acklin to his car, and then proceeded directly to the store he managed. While the Majority attempts to assert that the claimant was simply traveling to work as normal, in my opinion, the record is clear that the claimant was on his way back from attending the required meeting and did not in any way make any deviations in his return. When considered in conjunction with his testimony that he was running late due to attending the meetings and had to arrange to have someone open the store for him, it is clear that the claimant was not simply traveling to work in order to begin his work day. Instead he had already begun working at the employer's instructions. Furthermore, in my opinion, the record is clear that part of the claimant's job duties were to perform tasks requiring him to drive. This is evidenced by his testimony that he had to use his personal vehicle to attend meetings and to go to get food if needed. Lastly, I note that while the Majority asserts the claimant could have returned home if he had not been scheduled, the facts indicate that he had previously been scheduled to work, had been working all day, and was simply between two job tasks. Since the claimant was required to attend the meetings, the employer benefitted from his attendance, and there is no evidence indicating that the claimant had discretion in returning to work or that he deviated for personal reasons on the route to work, I find that there was no lapse in his performance of employment services while on the way back to the store.
The Majority relies on various cases in supporting their conclusions. The first is Patricia McCool v. Disabled American Veterans, Full Commission Opinion filed June 3, 1996 ( E410491). In McCool the claimant was injured when she went outside of her workplace to smoke. The claimant in that case had not yet begun to work and testified that she was going to smoke before she, "got real busy". The Commission concluded that because the claimant had not begun work she was not within the scope of employment. The Commission further indicated that because the claimant's sole purpose in going outside was to smoke, she should be denied benefits. Id.
I find that the present case is clearly distinguishable fromMcCool. The claimant in the present case had been working for the entirety of the day. His injury occurred while he was trying to get back to his store for his previously scheduled shift. Since the claimant was required to attend those meetings and was furthering the employer's interests by returning to his store, I find that there was no break in employment services during his driving time.
The Majority next relies on Carla Ann Cole v. Prince Gardner, Inc., Full Commission Opinion filed August 26, 1996. In Cole, the claimant was already clocked out and was going to the parking lot to leave for the day. Someone spoke to the claimant and she turned around and hit her head. Id. That case is distinguishable because the claimant had already finished her shift. Additionally, her walking to her car to leave for the day in no way served the employer's interest.
The Majority also cites Coble v. Modern Business Systems, 62 Ark. App. 26, 966 S.W.2d 938 (1998) and Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W. 2d 303 (1998). However, I note that in both of those cases the claimants were involved in admitted deviations from their primary tasks of working. In contrast, the claimant in the present case was simply going from one required work task to the next and there is no evidence indicating that he deviated from his required job tasks in any way.
Lastly, the Majority relies on Maupin v. Pulaski County Sheriff's Office, ___ Ark. App. ___, ___ S.W. 3d (CA 04-727, 2-16-2005). In Maupin, the claimant was a police officer who was injured while driving to work. At the time of the accident the claimant had no authority to conduct police business and there was no indication that the claimant was doing anything other than commuting to work as he would on any other day. As noted by the Court of Appeals, the claimant in that case had not yet begun his shift. Nor was there any evidence that he was being required to take any actions to further the employer's interest.Id. This is clearly distinguishable from the present case in that the claimant in the case at hand had been performing work services for the entirety of the day and was going from one job task to the next. As noted previously, there is no evidence these actions were not required.
The Majority also asserts that the claimant was not performing employment services because he was not directly advancing the interests of the employer at the time of his injury. In supporting this finding, they cite the case of Ricky Wallace v. West Fraser South, Inc., ___ Ark. ___, ___ S.W.2d ___ (CA 03-1335, Ark. App. 2-16-05). See also; Wallace v. West Fraser South, Inc., ___ Ark. ___ S.W.2d (05-254, 1-26-06). The Majority is correct in citing language that it is the claimant's activities at the time of injury that should be examined in determining whether the worker is in the course and scope of employment. However, in my opinion, the decision of Wallace demonstrates that the claimant in the present case was furthering the employer's interest and was in the scope of employment at the time of the injury. The claimant in Wallace was injured when he fell from a board into mud. At the time of the injury the claimant was returning from a scheduled break for which he was being paid. The claimant was on an authorized break, had been called from his break to work before, said he would be written up if he did not return from break in a timely fashion. The Arkansas Supreme Court, in finding that the claimant was performing employment services, noted that the claimant remained, "on the clock" and that he was not able to leave his workplace during the break. The Court also indicated that the claimant's actions were consistent with furthering the employer's interest. Id.
In my opinion, the present case is similar to Wallace because in both cases, the worker was returning to work, as required by the employer. Likewise, in both cases, the claimants were scheduled to return to work and their attempts to do so therefore furthered the employer's interests. I note, in the present case, that the claimant was not on break. Instead, he was merely going from one required job task to another. This seems to indicate, that the evidence showing he was acting in the course and scope of employment is even more clear than in Wallace.
I find that there are several cases which are more analogous to the present case than those relied on by the Majority. The first is Fisher v. Poole Truck Line, 57 Ark. App. 268; 944 S.W. 2d 853 (1997). The claimant in the aforementioned case was a truck driver. He was ordered to take a urine test in order to comply with Department of Transportation (D.O.T.) regulations. The claimant's initial test came back with unacceptable levels of protein. As a result, the claimant was ordered to submit to another test. The claimant submitted to the test. He learned he passed the test and then immediately drove back to let the employer know of the results. He was injured in a wreck on the way back to the employer's premises. The Court of Appeals noted that, "Although not specifically ordered by Poole to bring back the results of his physical, Fisher knew that by hand-delivering the copy he received from the doctor, he would receive his driving assignment." The Court also noted that the claimant drove his own vehicle and that he had to pass the test before commencing his duties as a truck driver. The Court, in finding that the claimant was performing employment services at the time of the injury, indicated that the claimant took the test for the sole purpose of benefitting the employer. More importantly, the Court indicated that the, "employment had commenced at the time the employee underwent the required exam," and that he was still performing such services when injured on the return trip. Id.
I find the Fisher case is similar to the present case for many reasons. First, the claimant in the present case was traveling for the sole reason of returning from two meetings he was mandated to attend. Just as in Fisher, I find that the claimant's employment services commenced when he began attendance of the meeting. I also find that just as in Fisher, and as noted by the Court in Fisher, the claimant was still performing employment services on his return trip. In fact, I find that the facts in the present case are even more clear cut that the claimant was performing employment services at the time of his injury. Whereas in Fisher, the claimant's decision to return to work was discretionary, the claimant in the present case had already been scheduled to work and was injured while trying to return to fulfill that obligation.
The next case I rely on is Bell v. Tri-Lake Services, CA 01-412; 61 S.W. 3d 867 (2001). In Bell the claimant worked as a laborer. He was required to travel for the employer, but was not compensated for his travel expenses. On the day of injury, the claimant was instructed to go to a location to retrieve tools. The claimant was injured in a wreck while in route to retrieve the tools. The Court of Appeals found the claimant was within the time and space boundaries of employment. The Court indicated that the claimant was required to travel for the benefit of the employer and that the, "claimant's accident occurred after he began his employment duties that day but before the work day was scheduled to end." Id.
In the present case there is no dispute that the claimant was required to attend meetings on the day of his injury. Likewise, there was no testimony presented that indicated he in any way deviated from his task of returning to work as had previously been scheduled. Also, just as in Bell, the claimant in the present case was not near the end of his scheduled work. As such, I believe he was within the time and space boundaries of employment.
The next case I rely on is Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381; 944 S.W.2d 524 (1997). In Pettey, the claimant was required to travel from home to home in order to provide nursing services. The claimant used her own vehicle to travel and did not receive compensation for travel time. On the day of the injury, the claimant reported to the employer's office and picked up supplies. The claimant then went to the mall in an apparent deviation from her job duties. She then left the mall to go to her first patient's home. She was injured when she overturned her vehicle while in route to the patient's home. The Court of Appeals indicated that the claimant was performing employment services, despite the fact that she was not yet at the first patient's home. In making this decision, the Court noted that the claimant's job description required her to subject herself to the hazards of driving while going from one patient to the next. Id.
In my opinion, the current case is comparable because the current claimant was required to use his own vehicle to attend meetings for the sole purpose of furthering the employer's interests. While the record is silent as to whether the claimant was frequently required to do so is irrelevant because it was still an inherent part of his job to use his own vehicle in order to attend the meetings and perform other tasks such as retrieving food and delivering pizzas. Likewise it was necessary he have the ability to return to work as scheduled from those meetings. Furthermore, just as in Pettey, the claimant's driving directly furthered the employer's interests, indicating that he was acting in the course and scope of employment at the time of his injury and that he is not precluded from receiving benefits due to the "coming and going" rule.
Ultimately, I find that the claimant was performing employment services at the time of injury. The record is clear that the claimant was required to attend meetings and that he was required to drive to at least one meeting attended that day. In my opinion, his attempt to return to work was required, directly furthered the employer's interests, and occurred during the time and space boundaries of employment. Accordingly, I find that he was acting within the course and scope of employment at the time of his injury. For these reasons, I must respectfully dissent.
______________________________ SHELBY W. TURNER, Commissioner