Opinion
CLAIM NO. F006077
OPINION FILED MARCH 23, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SHANNON MUSE CARROLL, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE ROBERT L. HENRY III, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed.
OPINION AND ORDER
The claimant appeals to the Full Workers' Compensation Commission an administrative law judge's opinion filed September 29, 2000. The administrative law judge found that the claimant's injuries were sustained at a time when she was not performing employment services. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
Twyla Bryant, age 29, worked as a night housekeeper through Staffmark at The Arlington, Hot Springs, Arkansas. "I had to get the cigarette butts out of the ashtrays, clean the windows, dust, mop, clean the rest rooms, and clean the women's locker room," she stated. Ms. Bryant said that she cleaned "common areas" and did not work in guest rooms. The employee began on the seventh floor and "cleaned down" to the first floor of the hotel. The parties stipulated that the employment relationship existed on May 19, 2000. At approximately 3:00 a.m. on that date, the claimant decided to take a "smoke break." The claimant testified that as she proceeded to the hotel basement in order to smoke a cigarette, "I was going down some stairs and fell."
The claimant was seen at St. Joseph's Business Health on May 19, 2000 and was assessed with "Contusion paracervical area with trapezius and paracervical strain." The claimant was assessed with "cervical strain" at St. Joseph's Regional Health Center on May 20, 2000. After a course of conservative treatment, a physician indicated on June 14, 2000 that the claimant could return to work without restrictions.
Ms. Bryant filed a claim for worker's compensation. The claimant contended that she sustained compensable injuries when she fell at work on May 19, 2000. The claimant contended that she should be awarded reasonably necessary medical treatment and temporary total disability compensation. The respondents contended that the claimant did not sustain an injury arising out of and in the course of her employment, and alternatively, that the claimant's alleged injury did not occur at a time when she was performing employment services. After a hearing before the Commission, the administrative law judge found that the claimant's injuries were sustained at a time when she was not performing employment services, within the meaning of Act 796 of 1993. The claimant appeals to the Full Commission.
II. ADJUDICATION
A. Employment Services
The claimant contends that she sustained a compensable injury on May 19, 2000. Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(A) (Supp. 1999) et seq., defines "compensable injury" as "an accidental injury causing internal or external physical harm . . . arising out of and in the course of employment." Ark. Code Ann. § 11-9-102(4)(B)(iii) excludes from the definition of "compensable injury" any injury sustained by an employee at a time when she is not performing "employment services." An employee is performing "employment services" when she is engaged in the primary activity which she is hired to perform or any incidental activity which is inherently necessary for the performance of the primary employment activity. Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998).
In the present matter, the Full Commission affirms the administrative law judge's finding that the claimant was not performing employment services at the time she fell down the stairs on May 19, 2000. The claimant was employed with the respondents as a night housekeeper. The record clearly indicates that the claimant was not performing housekeeping duties at approximately 3:00 a.m. on the alleged date of injury; rather, the claimant was proceeding to the hotel basement to smoke a cigarette at the time she slipped and fell. We find that the administrative law judge properly determined from a preponderance of the evidence that the claimant had no cleaning supplies at the time of her fall and did not intend to perform any employment services on her way to smoke a cigarette.
The Dissenting Opinion finds the instant matter analogous to Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999). Ray was a food service worker who, during a paid break, slipped in a puddle of salad dressing while reaching for an apple. The Court of Appeals determined in Ray that the claimant was performing employment services at the time of her fall, because the employer required her to be available to help students during her break. The Dissenting Opinion cites the instant claimant's testimony that she was required to space out her work so as to be available for the hotel should it need her. The Dissenting Opinion therefore asserts that the claimant's situation is identical to that of Ray. However, we find instructive the following language by the Court of Appeals in Ray v. University of Arkansas:
Unlike the employer in Harding, the University of Arkansas required Ray to be available to work during her break and paid her for the time she was on break, presumably because she was required to help students. The University of Arkansas was clearly benefitted by Ray's being in the cafeteria and available for students during her paid break.
The benefit was not tangential as in Harding, but was directly related to the job that Ray performed and for which she was paid. In distinguishing Harding, we specifically note that, unlike the break in Harding, the appellee employer in this case furnished food for its resting employees and paid for the break to induce them to be available to serve students even during the break period.
In our view, the facts of the present matter more closely resembleHarding, supra, than Ray. In Harding, the Court of Appeals affirmed the Commission's denial of compensability where the claimant tripped and fell while on her way to a smoking area. The Court determined in Harding that "although appellant's break may have indirectly advanced her employer's interests, it was not inherently necessary for the performance of the job she was hired to do." In the present matter, the Full Commission finds that whatever benefit the employer received during the claimant's smoke break was tangential at best. Unlike Gudrun Ray, the claimant's smoke break was not directly related to her housekeeping duties. As the administrative law judge noted:
[T]he claimant was led to state that if, instead of proceeding to the restaurant to smoke, she had gone to the locker room to get cigarettes, she might have done some cleaning if the room was excessively dirty. Similarly, the claimant was recalled to testify that once her smoke break had been interrupted when she was asked to perform a housekeeping duty. However, neither of these circumstances could be thought capable of transforming into employment services the claimant's smoke break activity on May 19, 2000, especially since the first is hypothetical, the second occurred on one occasion, and neither is actually related to what the claimant was doing at the time of her injury.
After de novo review, the Full Commission affirms the administrative law judge's finding that the claimant's injuries were sustained at a time when she was not performing "employment services" as defined by Act 796 of 1993.
B. Testimony
A Pre-Hearing Order was filed with the Commission on July 31, 2000, following a telephone pre-hearing conference with the attorneys representing the claimant and respondents. A hearing was scheduled for 11:00 a.m., Friday, September 22, 2000. The Pre-Hearing Order also provided, in relevant part:
At the hearing, the claimant will rely on the written record and her own testimony without calling additional witnesses. The respondents will rely on the written record and the testimony of Rudy Bischof and a representative from the Arlington Hotel.
***
The parties are directed to keep their prehearing information filings current, promptly exchanging copies of exhibits and revealing the names of all witnesses, including possible rebuttal witnesses, and the subject matter of their testimony.
Only the evidence disclosed by prehearing filings or supplements thereto, or agreed to by the parties, will be admitted into evidence at the hearing. All prehearing filings or supplements thereto shall be furnished to opposing counsel and this Commission no later than seven days before the date of the hearing.
Hearing before the Commission was held September 22, 2000. After the claimant's initial testimony, she called Tomislav Tomic as a corroborating witness. Mr. Tomic testified that he had worked at The Arlington for seven and one-half years and had trained the claimant. Mr. Tomic testified that he was from Yugoslavia and only "partially" understood English; however, the record indicates that Mr. Tomic fully understood and answered the attorneys' queries on direct and cross-examination, without needing an interpreter.
The claimant next called Janet Meeks to testify. The claimant's attorney stated that she called Ms. Meeks in order to "clarify some of the ideas or concepts that I cannot adequately express to Mr. Tomic, which I tried to do before this hearing and was never able to get him to understand what I was asking." The respondents objected to Janet Meeks' testimony, because the claimant did not list Ms. Meeks as a witness in the Pre-Hearing Order or otherwise notify the respondents that she would testify. The administrative law judge sustained the respondents' objection. The claimant therefore "proffered" the testimony of Ms. Meeks. Ms. Meeks testified that she was The Arlington's assistant night auditor and occasional night manager, and that she supervised the housekeeping crew "In a roundabout way." Ms. Meeks testified that the night housekeeping crew was scheduled from 10:00 p.m. to 6:30 a.m., to be available "should we need a bed changed, should we need a room cleaned." After proffering the testimony of Janet Meeks, the claimant rested.
The respondents called Reba Crenshaw as a witness. Ms. Crenshaw, an employee of Staffmark, testified that "To the best of my knowledge, we do not pay for breaks." After the respondents rested, the claimant's attorney stated, "we would now offer the testimony of Ms. Meeks as a rebuttal witness, and, therefore, no notice is required." Counsel again proffered the testimony of Janet Meeks, who stated that The Arlington did not require employees to "clock out" during their breaks. The administrative law judge disallowed Ms. Meeks' testimony, holding that such testimony would violate the "seven-day rule."
The Dissenting Opinion would find that the administrative law judge erred in failing to allow the "rebuttal testimony" of Janet Meeks. The dissent cites that portion of Ms. Meeks' testimony proffered by the claimant to purportedly "clarify" the testimony of Tomislav Tomic, rather than Janet Meeks' proffered testimony aimed at rebutting the respondents' witness.
Generally, one who offers evidence has the burden of proving its admissibility. Benson v. Shuler Drilling Co., 316 Ark. 101, 875 S.W.2d 552 (1994). The Pre-Hearing Order, filed July 31, 2000, expressly provided that the claimant "will rely on the written record and her own testimony without calling additional witnesses." In addition, the Pre-Hearing Order directed the parties to reveal "the names of all witnesses, including possible rebuttal witnesses, and the subject matter of their testimony" prior to the September 22, 2000 Commission hearing. The claimant attempted to introduce the "clarification" testimony of Janet Meeks on the date of hearing, without prior notice. The administrative law judge sustained the respondents' objection to said testimony. The introduction of evidence is a matter within the sound discretion of the administrative law judge. Benson, id.
The claimant subsequently attempted to again proffer the testimony of Janet Meeks, this time as "rebuttal" testimony to the respondents' sole witness. The administrative law judge did not reverse his prior ruling on the respondents' motion. The admissibility of rebuttal evidence lies within the discretion of the administrative law judge. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). The exclusion of testimony offered on rebuttal is also within the discretion of the administrative law judge. Wilkins v. El Dorado Wesson R.R., 282 Ark. 236, 668 S.W.2d 6 (1984); Dinger v. Keith Watercare, Inc., Workers' Compensation Commission E713795 (May 11, 2000). The Full Commission finds that the administrative law judge properly sustained the respondents' objection to the testimony of Janet Meeks.
Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove that she sustained a compensable injury as defined by Act 796 of 1993. We therefore affirm the administrative law judge's finding that the claimant's injuries were sustained at a time when she was not performing "employment services, within the meaning of the Act." The Full Commission therefore dismisses this claim.
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
____________________________________________________ MIKE WILSON, Commissioner
I must respectfully dissent from the majority opinion in this case.
Claimant appeals an administrative law judge decision denying workers' compensation benefits based on a finding that she was not performing employment services at the time of her injury pursuant to Ark. Code Ann. § 11-9-102. Claimant also appeals the administrative law judge's refusal to allow testimony by a rebuttal witness on an issue that is pertinent to a determination of whether claimant was, in fact, performing employment services at the time in question. Upon de novo review of the entire record, I find that claimant did prove by a preponderance of the credible evidence that she sustained a compensable injury.
First, I find that claimant was performing employment services when she fell down stairs at The Arlington Hotel thereby injuring her neck and left shoulder. Claimant, who worked the night shift, testified that she began working at 10 p.m. and was to continue until 6:30 a.m. Her normal procedure was to start cleaning on the 7th floor and work her way down to the basement level. She testified that at approximately 3:00 a.m., she was going downstairs to take a smoking break and fell five or six stairs from the bottom of the staircase.
I find this case to be analogous to Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999) (injury was compensable where employee's break time could be interrupted to perform work duties). Claimant testified that she was instructed by her employer to "space out her work," so that it would last the full eight hours. She testified that on at least one occasion, she had been required to interrupt her break to perform housekeeping duties. Although this testimony was not allowed, there was corroborating evidence that employees were expected to be on duty to remain "available" for their employer, despite the fact that the work could be performed in less time than the allocated shift.
The fact that claimant was required to space out her work so as to be available for the hotel should it need her, shows that claimant's situation is identical to that of Ray which held the employer liable when it required its employee to perform work duties during his break. I find that claimant, likewise, was performing employment duties at the time of her injury.
I further find that the administrative law judge erred when he failed to allow rebuttal testimony where that witness' testimony was relevant to a fact in issue and would not have prejudiced the opposing party. The proffered testimony of Janet Lynn Meeks, assistant night auditor for The Arlington Hotel, revealed that while management is aware that housekeeping duties could be performed in less time, it was the employer's desire to have employees on premises throughout the night, "[housekeepers are scheduled for eight-hour shifts] should a housekeeping problem arise." (R. 54). Meeks further stated that part of a housekeeper's duties was to merely be "available" for their employer, and that employees are not required to clock in and out for their breaks — smoking or otherwise. (R. 54-55).
This testimony was to rebut that offered by Reba Collette Crenshaw, branch manager of Staffmark, who stated that employees are only allowed one 30-minute lunch break, suggesting that employees may have been required to clock in and out for other breaks taken while at work. This suggests that claimant was in violation of company policy and outside the realm of her work duties in taking a smoke break. (R. 37).
Claimant testified, "I was told that I needed to space my work out, to do so much and then, you know, go take a smoke break, go sit, go do something." (R. 37).
Claimant's testimony that she was required to "space her work out" to make it last through the night was corroborated by Tomislav Tomic, the housekeeper who trained claimant for her housekeeping position. In light of these statements, Meeks' testimony would go to the question of whether claimant was in fact performing employment services at the time she was injured.
I find that the administrative law judge erred when he refused to allow Meeks' rebuttal testimony. In fact, when claimant's attorney noted her objection for the record with regard to notice requirements for rebuttal witnesses, the administrative law judge stated,
I certainly do not allow rebuttal witnesses because I think it allows a lot of unfairness that the rule is trying to avoid, and I don't allow it for either side. So I will not allow hers or other testimony to come in unannounced, in violation of the Seven-Day Rule because they are, quote, `a rebuttal witness.'
Although the Commission is not bound by the rules of evidence, it is bound to conduct itself in a manner conducive to fairness.
In making an investigation or inquiry or conducting a hearing, the commission shall not be bound by technical or statutory rules of evidence or by technical or formal rules of procedure, except as provided for by this chapter, but may make such investigations or inquiry, or conduct the hearing in a manner as will best ascertain the rights of the parties.(Emphasis added).
In Perkins v. State, 258 Ark. 201, 523 S.W.2d 191 (1975), the Arkansas Supreme Court held that it was not error for the prosecuting attorney to fail to disclose the name of a rebuttal witness.
While that case was decided before the effective date of the Rules of Criminal Procedure, it is sound law. There is no way that a prosecuting attorney can anticipate whom he will call in rebuttal until the defense presents its case. If a witness called in rebuttal is a genuine rebuttal witness, offering evidence to rebut that presented by the defense, not pertaining to evidence the State would be obligated to present in its case in chief, then the State is not required to furnish the name of such a witness.
Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980), quoting Perkins v. State, 258 Ark. 201, 523 S.W.2d 191 (1975).
The Arkansas Supreme Court, in St. Paul Ins. Co. Et Al v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980), addressed the balance the Commission must strike when acting as the fact-finder in a case. The Commission is "not bound by technical rules of evidence or procedure" but "is expected to adhere to basic rules of fair play, such as recognizing the right of cross examination and the necessity of having all the evidence in the record." Herbert Brake v. The Kroger Co ., Opinion filed August 25, 1999 ( E702191), quoting Brewer v. Tyson Foods, Inc., 10 Ark. App. 88, 661 S.W.2d 423 (1983), (Court of Appeals held that the inclusion of two reports was inappropriate where the appellant was denied the opportunity to cross-examine the individuals who prepared the reports).
While the majority accurately points out that the exclusion of testimony offered in rebuttal is clearly within the discretion of the administrative law judge, the Commission has upheld the admission of evidence where it was found that such evidence was not prejudicial to the opposing party. Dinger v. Keith Watercare, Inc., Workers' Compensation Commission E713795 (May 11, 2000) (the Commission upheld admission of a document allowed in contravention of the seven-day rule).
In the instant case, the rebuttal witness was present for cross examination and no prejudice would have resulted to allow rebuttal testimony.
At the insistence of fairness and due process, I believe that the claimant was entitled to call her rebuttal witness.
Based on the foregoing reasons, I respectfully dissent.
______________________________ SHELBY W TURNER, Commissioner