Opinion
CLAIM NO. F905345
OPINION FILED MAY 19, 2011
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE C. MICHAEL WHITE, Attorney at Law, North Little Rock, Arkansas.
Respondent represented by the HONORABLE MELISSA WOOD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed and Dismissed.
OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury. Specifically, the Administrative Law Judge found that the claimant was performing employment services at that time she fell outside of her office building on February 26, 2009. Based upon our de novo review of the record, we find that the claimant has failed to meet her burden of proof. Accordingly, we reverse the decision of the Administrative Law Judge.
The claimant was employed by the respondent employer as a contract worker performing the duties of a medical clerk. The respondent employer contracted with the United States Government helping injured veterans get medical treatment. The claimant worked on base at Camp Robinson. On February 26, 2009, the claimant got out of the car and was going into the office building at 7:20 when she fell. The claimant had not clocked in at the time of the fall. The issue is whether or not the claimant was performing employment services at the time she fell. After conducting a de novo review of the record, we find that the claimant was not performing services at the time she fell.
In order for an accidental injury to be compensable, it must arise out of and in the course of employment. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2009). A compensable injury does not include an injury that is inflicted upon the employee at a time when employment services are not being performed. Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 2009). The phrase "in the course of employment" and the term "employment services" are not defined in the Workers' Compensation Act.Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).
An employee is performing employment services when he or she is doing something that is generally required by his or her employer.Id. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). The Commission uses the same test to determine whether an employee is performing employment services as we do when determining whether an employee is acting within the course and scope of employment.Jivan v. Econ. Inn Suites, 370 Ark. 414, 260 S.W.3d 281 (2007). The test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer's purpose or advancing the employers interest, directly or indirectly.Id. In Conner, 373 Ark. 372, 284 S.W.3d 57, the Court stated that where it was clear that the injury occurred outside the time and space boundaries of employment, the critical inquiry is whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury. Moreover, the issue of whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Id.
The Court of Appeals and the Supreme Court have found injuries compensable when the employee was required to stay on his or her employer's premises and perform duties, if the need arises, during their break. See, Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999); Wallace v. West Fraser South, 365 Ark. 68, 225 S.W.3d 361 (2006). In these cases, the Courts found that the employee's presence and availability advanced the employer's interest. Injuries have been found not to be compensable when the employer receives no benefit from the activity being performed during the break or when the activity is not inherently necessary for the performance of the employee's job, even though his or her presence or action benefits the employer. E.g., McKinney v. Trane Co., 84 Ark. App. 424, 429, 143 S.W.3d 581, 585 (2004); Smith v. City of Fort Smith, 84 Ark. App. 430, 435, 143 S.W.3d 593, 596-97 (2004).
The Courts have also found that an injury suffered by an employee while on a break is compensable if the employer has imposed some duty or requirement to be fulfilled by the employee during the break. E.g., Moncus v. Billingsley Logging and American Ins. Co., 366 Ark. 383, 235, S.W.3d, 877 (2006). InMoncus, although the employee was not engaged in the activity for which he was primarily employed when he was fatally injured, he was carrying out the express directions of his employer by following the employer to a job site to begin working. Similarly, inWal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002), the claimant suffered a compensable injury when she was returning her purse to her locker on her way back from a scheduled break. For security reasons, the respondent required employees to place their belongings in their locker before returning to work. InWallace v. West Fraser South, the Supreme Court held that an employee suffered a compensable injury when he fell while walking over a board that was placed by his employer across a ditch for employees to use as a bridge when returning from a break. The claimant was advancing his employer's interest during the break because he remained on the clock, was not allowed to leave the premises, and could be called back to work.
The Supreme Court drew a bright-line rule for "residential employees" in Jivan v. Economy Inn, 370 Ark. 44, 260 S.W.3d 260 (2007). In this case, the claimant was a hotel manager who lived on the premises and was "on-call" twenty-four hours a day. She suffered a compensable injury while she was changing clothes in her bathroom to go to the gym. The Court found that the claimant was at an increased risk and held that "[Jivan's] presence on the premises during the fire exposed her to a greater degree of risk than someone who did not live on the premises. . . . Thus, [she] indirectly advanced her employer's interests, even while remaining on the premises during the fire." The Courts have additionally found that an injury suffered by a non-residential employee is not compensable where the employee is performing an activity merely for the purpose of attending to his personal needs. In Cook v. ABF Freight Systems, Inc., 88 Ark. App. 86, 194 S.W.3d 794 (2004), a truck driver who was "off the clock" but "on-call" in a motel room provided by his employer was injured while turning on the lights in the bathroom. The Court found that the claimant was not performing employment services because there was no evidence that his going into the bathroom was for any reason other than to attend to his own personal needs.
In Smith v. City of Fort Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004), the Court affirmed the Commission's denial of benefits for an injury that occurred within normal working hours, on the employer's premises, and while the claimant was advancing the employer's interest because theactivity the claimant was engaged in was not inherently necessary for the claimant's job. The claimant was a truck driver at the city dump and the city allowed employees to remove debris from the dump for their own personal use. The claimant was injured removing gravel for his own personal use. The claimant's injuries were found not to be compensable because the gravel loading activity was not inherently necessary for the performance of his job as a dump-truck driver.
The Court has previously recognized that an injury is compensable even when an employee was on break or had not yet clocked in as long as the employee was performing employment services a the time the injury occurred. Jonesboro Care Rehab Ctr. v. Woods, 2010 Ark. 482, ___ S.W.3d ___ (2010) holding that an employee was performing employment services when she stepped outside for a break while attending a mandatory seminar and was required to wait afterward to complete paperwork and pick up her paycheck. In Conner, the Court found that an injury sustained by a janitor while opening a gate to a school parking lot upon returning from his lunch break was compensable because the janitor was performing employment services at the time of his injury particularly where he was not allowed to leave the workplace area during break. In Collins v. Excel Specialty Prods., 347 Ark. 811, 819, 69 S.W.3d 14, 20 (2002), the Court found that an employee's injury, suffered while taking a restroom break, was compensable, because the "restroom break was a necessary function and directly or indirectly advanced the interest of the employer". In the case of White v. Georgia-Pac. Corp., 339 Ark. 474, 6 S.W.3d 98 (1999) the Court held that an employee's injuries were compensable because the employee was required to monitor his work area while he was taking a smoke break and was thus performing employment services.
In the present case, the claimant testified that her job duties as a medical clerk were as follows:
Q As I understand it, your testimony earlier was that, as a medical clerk, you would keep notes for the nurse case managers; is that correct?
A. I'd get them from the outside providers, yes.
Q. Okay. And then you would keep up with the different appointments for soldiers, right?
A. Yes.
Q. You had testified in your deposition that that job involved quite a bit of filing and faxing — a lot of work at your desk — but then, to the fax room or wherever you would go to do that — in the same building, correct?
A. That is, yes, except for the filing part. They moved the files to a different building now.
Q. When was that?
A. Last year.
Q. So, since you've been working for other companies, right?
A. (Inaudible).
Q. Is that a yes?
A. Yes.
Q. At the time you were working for Magnum, it was all in the same building, right?
A. At that time, yes.
The claimant was injured outside of the building on the morning of February 26, 2009. She testified regarding how the accident occurred:
Q. Okay. Now, on the morning of February 26, 2009, you testified that you were walking up to your main building when you were coming to work that morning, correct?
A. Yes.
Q. You testified in your deposition that you fell at about seven twenty (7:20) a.m. — is that correct?
A. Yes.
Q. Today, you've described that you were walking up a dirt path of some kind — is that right?
A. It's a dirt and rock kind of mix, yeah.
Q. And you had testified in your deposition that the reason you took that path was because sometimes the sidewalk would flood, so you just got in the habit of taking this path, right?
A. Yes.
Q. Now, on this particular day, though, it was not raining, correct?
A. No.
Q. It was not raining, or —
A. No, it was not raining — I'm sorry.
Q. Okay — that was a bad question. So there was no mud on the ground, because it hadn't been raining, correct?
A. Correct.
Q. You told us that you were carrying your purse and your lunch at the time?
A. Yes.
Q. That's all you had in your hands, correct?
A. Yes.
Q. You weren't talking on your cell phone at the time?
A. No.
Q. It's my understanding that you were going toward a side door on the building — is that right?
A. That's all they have.
Q. That's all that building has?
A. Yes.
Q. Okay. After you fell, you testified in your deposition that you made your way up the front steps or side steps, and that you went in and you clocked in — is that correct?
A. Yes.
Q. You had clocked in at about seven twenty-five (7:25), correct?
A. Yes.
Q. Now, you testified earlier that, on occasion, you would go and get mail, or you'd go get charts in other buildings, but you weren't doing that morning, were you?
A. No.
Q. And that morning, no one had called you on your cell phone — you were just absolutely getting to work that day, correct?
A. Yes.
The claimant was not required to take work home with her at night. After going into the building and after clocking in, she went over to her desk to put her purse and lunch down. The claimant also stated that she only worked forty (40) hours a week for the respondent employer because she knew that is all she would be paid to work. She further admitted:
Q. When asked specifically what you were doing that was work-related at the time of your fall, you testified in your deposition that you were going to clock in — is that right?
A. For the Army.
The claimant explained the procedure that she had to follow to get onto the base:
Q. You told us today that you normally show your own ID to the military to get in the gate — is that correct?
A. Yes.
Q. And it's my understanding that that actually expedites the whole process — you can get in faster if you've got your own ID, correct?
A. Yes.
Q. Now, this particular day, your husband brought you, so you knew to allow enough time to go through the gate and let him go through that extra process, correct?
A. Correct.
Q. Would you agree with me that, if you were working off base somewhere in a commercial building, that you would need to allow enough time to get to work, to get through traffic, to get through construction, and things like that?
A. Oh, I agree, yes.
Mr. Robert Manigault, president and owner of the respondent employer, testified via deposition. He was asked about the procedure of going through the gate and confirmed that the requirement was not his but was the U.S. Government's:
Q According to her deposition, she was required to show her I.D. at the gate. Is that something that Magnum required of her?
A No, that's not something that Magnum requires. That is something — that is a requirement to enter the military facility.
He went on to testify that the claimant kept a time sheet, which she would fax to the human resources department weekly. The claimant's employment agreement with the respondent employer dictated that her authorized hours of work were from 0730 to 1630. Any hours outside those specific hours, she was not to be there and would not be engaging in employment activities. On cross-examination, Mr. Manigault went on to explain:
Q Her workday actually began, according to you, a 7:30 when her authorized time started?
A That is correct. According to the employment agreement, her workday begins at 7:30.
Q Would she be required to be at the gate at 7:30 or at her work station at 7:30?
A Well, she's required to be at her work station at 7:30.
Q But she would be required to allow enough time to pass through the gate and drive to her work station, is that what you're testifying?
A Well, and that's pretty standard for any employee at any workplace is that if we require her to be at work at 7:30, as far as how long it takes her to get there, we don't have any standards or any policies that tells her how long that is. Our only requirement is that she reports to work, that she's at work at 7:30.
Mr. Manigault testified that the claimant was not doing anything work-related whatsoever at the time she fell. He was adamant that there were no work duties in that area that the claimant would be performing at that time:
Q Okay. So if she fell on the path outside of that building where she would've gone to clock in, would she have been performing any of her employment duties at that time?
A No, none of her duties required her to be outside.
Q In fact, the pathway where she was, at anytime would her job duties have been performed in that area?
A No.
Q When would you say that her duties began?
A Her duties began when she clocked in or when she was signed in at 7:30 that morning.
It is clear from the testimony of Mr. Manigault that the government has the security in place for anyone who enters the base:
Q All right. But, Mr. Manigault, would you agree that if it's a requirement of the government in their contract at a lot of government installations, then it is a requirement that your employees had to follow while they're on base?
A Well, I'm just saying that my employees are required to follow the guidelines that anybody, employee or not, is required to follow when they enter a military installation. There's not a job related requirement. It is a government requirement of anyone entering the facility.
In our opinion, the claimant has failed to prove by a preponderance of the evidence that she was performing employment services at the time of her injury.
This case is distinguishable from Caffey v. Sanyo Manufacturing Corporation, 85 Ark. App. 342, 154 S.W.3d 274 (2004). In that case, the claimant was required to exhibit her identification before entry into the parking lot. After parking her vehicle, she was required by her employer to walk to a second guard shack and again display her identification badge. The court pointed out that the employer is the one who made these requirements of her, and the requirements advanced their interest. In contrast, the claimant in the present case works as a medical clerk, which is a job that does not require heightened security. The U.S. Government is the one with the security requirements, not the respondent employer. There is absolutely nothing being done by the claimant that is advancing the respondent employer's interest.
The present case is very similar to Parker v. Comcase Cable Corp., 100 Ark. App. 4090, 269 S.W.3d 391 (2007). InParker, the claimant tripped while exiting an elevator. At the time of the accident, she had not yet clocked in or reached her work station. She suffered a back injury. The claimant was not performing employment services when she tripped while emerging from the elevator. The fact that the claimant had to unlock the door to enter the premises did not render the claim compensable. The fact that she had gone to a break room first was irrelevant because she had not started her work day.
Another similar case is Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000). In that case, the claimant had taken work home and had worked over the weekend. He died in an accident on the way to work. The claimant was a finance manager who was required to work on sales contracts, and whether he worked on the contracts at home or at the office was immaterial. The claimant was not working on the contracts at the time of the accident. Similarly, the claimant was not performing any of her duties at the time of her fall.
In McKinney v. Trane Company, 84 Ark. App. 424, 143 S.W.3d 581 (2004), the claimant was a sheet-metal fabricator who was on a paid break when he injured his knee while trying to get a soda before going to smoke a cigarette outside. He testified that he was given the break so that he could go to the restroom, go smoke, or refresh himself with a drink. He also stated that he "would have been under a duty to report anything askew in th workplace had he observed it during that time." The claim was found to be not compensable. The claimant was involved in nothing generally required by his employer and was doing nothing to carry out his employer's interest. In this case, the claimant was en route to start her day, was not doing anything related to her job as a medical clerk at the time of her injury.
Further, in Robinson v. St. Vincent Infirmary, 88 Ark. App. 168, 196 S.W.3d 508, the claimant was a housekeeper and part-time supervisor. She was on her lunch break and was planning to take her lunch to the cafeteria after she left the second floor to get her lunch from the fourth floor. The claimant's actions were totally personal in nature and were not compensable. Similarly the claimant's actions in the present case were personal in nature.
It is clear from the evidence of record that the claimant had not started her work day. She was not getting mail or patient charts and was not on her cell phone. She fell outside of the building. She clocked in after her fall and then went to the desk to put her lunch and her purse down. The claimant had not gotten to her work station and had not begun her work day. The mere fact that she had to go through the military gate to get to her work station is irrelevant. That is no different than allowing herself enough time in the morning to get to any other commercial building to start her work day. She would have to allow enough time for traffic, or construction or unforeseeable time delays, just like anyone else who does not work on a military base. Further, passing through the military gate is a requirement of the U.S. Government, not her employer. It does not advance the interest of the respondent employer to have security checkpoints. It advances the interest of the U.S. Government and the U.S. Government is not the claimant's employer. Simply put, we find that the claimant has failed to prove by a preponderance of the evidence that she was performing employment services at the time she fell. Accordingly, the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury. Therefore, the decision of the Administrative Law Judge should be and is hereby reversed and dismissed.
IT IS SO ORDERED.
________________________________ KAREN H. McKINNEY, Commissioner
Chairman Bell concurs.
CONCURRING OPINION
I concur in the majority's finding that the claimant did not prove she sustained a compensable injury. The record indicates that the claimant entered into an Employment Agreement with Magnum Opus Technologies, Inc. on August 22, 2008. The Employment Agreement indicated that the claimant would "provide clerical services for the United States Army, Utah Community Based Health Care Organization (CBHCO), located at Camp Robinson, Little Rock, AR[.]" The Employment Agreement included the following provision:
3. Hours of Work. Employee shall be required to work 0730 to 1630 (to include an unpaid one hour meal break), an average of forty (40) hours per week, Monday through Friday excluding Federal holidays. The hours may be changed due to mission requirements at the Government's discretion, but will not exceed forty hours per week.
A Performance Based Work Statement for the position of Medical Assistant, attached to the employment agreement, indicated that the claimant's duties would include registering patients, reviewing patient records, answering the telephone, and filing received medical documents. The claimant signed the Employment Agreement on August 26, 2008.
The claimant at hearing described her employment duties: "I worked with the case managers in getting the soldiers set up and ready to come through our program. I worked with the case managers as far as gathering the appointments for each soldier that they had, making sure that we got the medical notes from outside providers. I had to go into the military system on the computer to get notes from the military installations that some of them may be going to for treatment, and just, pretty much, whatever they asked of me."
The parties stipulated that an employment relationship existed on or about February 26, 2009. The claimant testified on direct examination:
Q. On February 26, 2009, there was an injury, correct?
A. Yes.
Q. Briefly, tell the judge what happened.
A. My husband dropped me off at work that day. I got out of the van, and I was walking through this little rock pathway that goes to our building, and I don't know what happened — I don't know if I mis-stepped — I know I fell to the ground and, when I stood up, I could not walk.
Q. So, did you make it into the building?
A. Barely, but surely.
The claimant testified that she notified a United States Army Captain of the accident, and that representatives of the Army then contacted the respondent-employer. April Weaver, a human resources assistant for the respondent-employer, sent an e-mail at 8:32 a.m. on February 26, 2009: "Beverly called to inform us that she had slipped fell on the way to work before she clocked in. A doctor on site checked her out to stabilize her thinks her pelvis has shifted told her to go to the ER. I instructed her to go ahead and go because her health is important. I also stressed to her that I am not guaranteeing we will or will not pay because I need to investigate more. . . ." The claimant was seen at Baptist Health Medical Center on February 26, 2009: "Ms. Bradley is a 49-year-old female who slipped and fell at work. She is complaining of left hip pain. . . . The pain is mostly in the left hip and groin area."
The parties deposed Robert Manigault, president and owner of Magnum Opus Technologies, on September 29, 2010. The respondent's attorney questioned Mr. Manigault:
Q. You understand that [Beverly Bradley] is claiming that she sustained a work related injury while working for Magnum Opus back on February 26, 2009, correct?
A. Yes, I understand that is her claim.
Q. Okay. Just as a little bit of brief background. According to Ms. Bradley's deposition that was taken in this matter, she fell on her way to work at about 7:20 a.m. You understand that, correct.
A. Yes, I understand that.
Q. Tell me, if you will, Robert, whether or not the employees are required to do any sort of clock-in or keep up with time sheets for Magnum.
A. No, they're not required to clock in. We don't have a time clock at the facility. They are required to keep a written time sheet, and they'll fax the time sheet over to our Human Resources Department weekly.
Q. Okay. And according to her deposition, again, she was going down a path in front of the building where she was going to clock in for work. You understand that, correct?
A. Yes, I understand that.
Q. It's my understanding that she was also allowed to park her vehicle right in front of the building. Is that your understanding as well?
A. Yes, that is my understanding.
Q. According to her deposition, she was required to show her I.D. at the gate. Is that something that Magnum required of her?
A. No, that's not something that Magnum requires. That is something — that is a requirement to enter the military facility.
Q. Okay. As you understand it, what was her job for Magnum?
A. She was hired to perform — she was a medical assistant. . . .
Q. Robert, let me ask you this, if Ms. Bradley had gotten to the base, she went through the security checkpoint and drove to the building where she was supposed to clock if, if she got there early, would it be permissible for her to sit in her car and have breakfast?
A. Yes, that would be permissible. We only require her to be at work at the times agreed upon in her employment agreement.
Q. Okay. So if she fell on the path outside of that building where she would've gone to clock in, would she have been performing any of her employment duties at that time?
A. No, none of her duties required her to be outside.
Q. In fact, in the pathway where she was at anytime would her job duties have been performed in that area?
A. No.
Q. When would you say that her duties began?
A. Her duties began when she clocked in or when she signed in at 7:30 that morning. . . .
The claimant's attorney also questioned the witness:
Q. Mr. Manigault, as I understand their contract and the procedures at Camp Robinson, anyone who enters the base has to pass through the security gate, is that your understanding?
A. That is required by the United States government, that is correct.
Q. Okay. In order for one of your employees to get on to the base and report to their work station, that have to pass through security, is that correct?
A. Yes, sir, that is correct.
Q. And if they don't pass through security, they're not going to be able to get to their work station, is that also correct?
A. That is correct. . . .Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002), defines "compensable injury" in part as an injury "arising out of and in the course of employment." "Compensable injury" does not include an injury which was inflicted upon the employee "at a time when employment services were not being performed." See Ark. Code Ann. § 11-9-102(4)(B)(iii) (Repl. 2002). The Arkansas Supreme Court has held that an employee is performing "employment services" when she "is doing something that is generally required" by her employer. Wallace v. West Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006). The test is whether the injury occurred "within the time and space boundaries of the employment, when the employee [was] carrying out the employer's purpose or advancing the employer's interest directly or indirectly." Id. The critical inquiry is whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury. Id. The issue of whether the employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Moncus v. Billingsley Logging Am. Ins. Co., 366 Ark. 383, 235 S.W.3d 877 (2006).
The pertinent question in the present case is whether the respondent-employer's interests were being advanced, either directly or indirectly, when the claimant slipped and fell. In Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 (1997), the Arkansas Court of Appeals affirmed the Commission's decision that the claimant did not prove she sustained a compensable injury. The Court of Appeals specifically affirmed the Commission's decision that the claimant was not entitled to compensation for an injury sustained when she fell on ice in her employer's parking lot. The Court held, "merely walking to and from one's car, even on the employer's premises, does not qualify as performing `employment services.'" Id.
In the present matter, the claimant was not presenting her identification at a security gate when she slipped and fell. Instead, the claimant was walking toward her workplace and slipped on what the claimant described as a "little rock pathway." The evidence in the present matter does not demonstrate that the claimant was directly or indirectly advancing her employer's interests at the time of the accidental injury. I agree with Commissioner McKinney that the instant case is analogous to Parker v. Comcast Cable Corp., 100 Ark. App. 400, 269 S.W.3d 391 (2007). In Parker, the Court of Appeals affirmed the Commission's finding that the claimant did not prove she sustained a compensable injury. In Parker, the claimant's accident occurred while she was en route to her work station and had not signed in to begin her duties. The instant claimant was likewise en route to her work station when she slipped and fell in a common area. The instant claimant's accident occurred before her shift began as a Medical Assistant performing clerical duties and before the claimant was directly or indirectly advancing her employer's interests on February 26, 2009.
I concur with the majority's decision that the claimant was not performing employment services when she slipped and fell on February 26, 2009. I therefore agree that the claimant did not prove she sustained a compensable injury, and that the Administrative Law Judge's opinion should be reversed.
________________________________ A. WATSON BELL, Chairman
Commissioner Hood dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion. After ade novo review of the record, I find that the claimant's compensable injury was inflicted upon the employee at a time when employment services were being performed. In my opinion, the majority has failed to distinguish this case from Caffey v. Sanyo Manufacturing Corp. 85 Ark. App. 342, 154 S.W. 3d 274.
A compensable injury is "[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). The phrase "in the course of employment" or the term "employment services" are not defined in the Workers' Compensation Act. Texarkana School Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57. Thus, it falls to the Court to define these terms in a manner that neither broadens nor narrows the scope of the Act. Id.
Our Supreme Court has held that an employee is performing "employment services" when he or she "is doing something that is generally required by his or her employer" Id. We use the same test to determine whether an employee was performing employment services as we do when determining whether an employee was acting within the course of employment. Id. Specifically, it has been held that the test is whether the injury occurred "within the time and space boundaries of the employment, when the employee [was] carrying out the employer's purpose or advancing the employer's interest directly or indirectly." Id. The critical inquiry is whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury. Id. Moreover, the issue of whether an employee was performing employment services within the course of employment depends on the facts and circumstances of each case.Id.
In Caffey, Supra, the claimant's shift began at 7:30 a.m. She arrived at the plant at approximately 7:20 a.m. As required, she showed her identification badge to a guard at the entrance of the parking lot. After parking her vehicle, she walked to a second guard shack where she displayed her identification badge to a second guard. She then walked through double-doors into the plant and down the hallway to the clock-in station. The claimant fell within five feet of the clock. The Arkansas Court of Appeals upheld the Commission's determination that all of the claimant's actions were requirements of her employer, and it was not determinative that she was not paid for these actions. The Court of Appeals held that substantial evidence supported the Commission's determination that the claimant was performing employment services when she slipped and fell on her way to clock in for the morning shift.
Here, the respondent is a civilian contractor with the military, based at Camp Robinson. The claimant's work station is on base. In order to reach her work station, the claimant must proceed through the military security checkpoint. On February 26, 2009, the claimant was taken to work by her husband, who had to receive military clearance to bring his car onto the base to drop her off. After being dropped off, the claimant fell on a rock path while approaching her work building. The claimant fell at 7:20. The claimant's shift started at 7:30, and the claimant was not able to sign in until after she fell. The majority, attempting to distinguish this case from Caffey, Supra, states that due to the fact that the security checkpoint was manned by the military and not the respondent-employer, passing through the checkpoint in no way advanced the employer's interest. I find this argument to be disingenuous. The claimant had to pass through the checkpoint. It makes absolutely no difference whether the checkpoint is manned by the military or the respondent-employer. The claimant's entire job is contingent upon her ability to pass through the military checkpoint. How the majority can make such a specious argument is mystical at best. None of the other cases cited by the majority contain fact scenarios even close to the ones found inCaffey and the instant claim.
I find that this case falls in the line of cases cited in Wood v. Wendy's Old Fash. Hamb. 2010 Ark. App. 307, for the proposition that employment services can be performed before an employee is clocked in: Texarkana School Dist., Supra (claimant held to be performing employment services when injured while unlocking gate he had to pass through in order to perform his job); Shults v. Pulaski County Special School Dist., 63 Ark. App. 171, 976 S.W.2d 399 (1998) (reversing and remanding Commission's decision that custodian of school was not performing employment services at time of injury because he was only entering the premises; evidence demonstrated that custodian's job required him to check the alarm system when he entered the school, which is what he was doing when he fell) and Caffey, Supra.
For the aforementioned reasons, I must respectfully dissent.
________________________________ PHILIP A. HOOD, Commissioner