Opinion
CLAIM NO. E615644
OPINION FILED DECEMBER 1, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE BEN E. RICE, Attorney at Law, Jacksonville, Arkansas.
Respondents represented by the HONORABLE MIKE ROBERTS, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed.
OPINION AND ORDER
The respondents appeal to the Full Workers' Compensation Commission an administrative law judge's opinion filed May 8, 2000. The administrative law judge found that the claimant "was killed in an automobile accident on November 20, 1996, while driving home from a company mandated business meeting in St. Louis. His death arose out of and during the course and scope of his employment." After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
The parties stipulated that the employer-employee relationship existed on November 20, 1996, on which date Christopher Clark (DOB: 07-06-63) was attending a business meeting in St. Louis, Missouri. The employer required Mr. Clark's attendance at the business meeting, at which no alcoholic beverages were served to any attendee.
Mr. Clark was killed in an automobile accident on November 20, 1996, while driving his personal vehicle on his way home from the business meeting in St. Louis. The driver of another vehicle drove over the center line of the road in rainy, wet conditions, colliding with the claimant's car at approximately 8:45 p.m. Mr. Clark died from severe trauma to the head and trauma to the chest and left side of his body. Testing showed the claimant's blood alcohol content to be .21; the other driver's blood alcohol content was .28.
The claimant contended that the deceased's widow and two minor children were entitled to death benefits as a result of "the claimant's compensable accident" which resulted in his death on November 20, 1996. The claimant argued that Mr. Clark was performing employment services at the time of his death, because he was required to attend the business meeting in St. Louis and was returning from that meeting. The claimant cited Act 796 of 1993, as presently codified at Ark. Code Ann. § 11-9-102(4) (Supp. 1999):
(B) "Compensable injury" does not include:
(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physicians' orders.
(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders.
The claimant asserted that the statutory presumption was rebutted in this case, because the driver of the second car crossed the center line, striking Mr. Clark and causing his death.
The respondents controverted the claim. The respondents contended that the claimant was not performing employment services at the time of his death, that his claim was barred by "the going-and-coming rule," and that his claim was barred because his death "was substantially occasioned by the use of alcohol."
The parties submitted the case on the record and briefs before the administrative law judge, who filed an opinion on September 17, 1998. The administrative law judge found that "The claimant's claim is barred because the accident which resulted in his death on November 20, 1996, was substantially occasioned by the use of alcohol." Since the administrative law judge denied the claim on the basis of Ark. Code Ann. § 11-9-102(5)(B)(iv), he did not address the other "defenses" raised by the respondents, that is, "employment services" and the "going and coming rule." A majority of the Full Commission affirmed and adopted the administrative law judge's decision in an opinion filed January 21, 1999. The claimant appealed to the Arkansas Court of Appeals.
The Court of Appeals reversed the Commission in an opinion delivered October 6, 1999. Clark v. Sbarro, Inc., 67 Ark. App. 372, 1 S.W.3d 38 (1999). The Court of Appeals cited ERC Contractor Yard Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998), where the Supreme Court had held that a claimant who sustained injuries from a fall successfully rebutted the presumption that his fall was due to the presence of alcohol in his blood. The Court of Appeals noted the Supreme Court's holding inERC:
When the words "substantially occasioned" are used together, the causal connection becomes more immediate and direct. Finally, the statute provides that the injury must be caused "by the use of alcohol," not by abstinence from the use of alcohol. We, therefore, conclude that the plain and ordinary meaning of the phrase
"substantially occasioned by the use of alcohol"
requires that there be a direct causal link between the use of alcohol and the injury in order for the injury to be noncompensable. To conclude otherwise would involve the addition of words that do not appear in the text of Ark. Code
Ann. § 11-9-102(5)(B)(iv).
In the present matter, the Court of Appeals agreed with the claimant that there was "not substantial evidence to support the finding that the accident was substantially occasioned by Mr. Clark's use of alcohol":
There was no evidence that Clark was speeding at the time of the accident, and no evidence from which the Commission could have concluded, without resorting to speculation, that he could have avoided the accident. However, the evidence did show that the "immediate and direct" cause of the accident was instead the other driver's crossing onto Clark's side of the road. Given the supreme court's definition of the words "substantially occasioned," we cannot say that fair-minded persons using the facts presented in this case could reach the conclusion reached by the Commission. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
The respondents subsequently petitioned the Court of Appeals for rehearing. The respondents also petitioned the Arkansas Supreme Court to review the Court of Appeals' ruling and to affirm the decision of the Commission. On December 22, 1999, the Court of Appeals denied the petition for rehearing. The Supreme Court denied the respondents' petition for review in an order entered January 13, 2000.
The respondents filed a Petition for Further Consideration with the Commission on February 2, 2000. The respondents requested that the Full Commission opine with regard to the "unaddressed issues of whether Claimant's intoxication precluded his death from arising out of and in the course of his employment, and whether the Claimant was performing employment services at the time of his death, given his intoxication." The claimant asked the Commission to deny the respondents' petition. "In the alternative, claimant asks that the Commission find that claimant was performing `employment services' at the time of his fatal accident . . . ."
On February 15, 2000, meanwhile, the Full Commission remanded the matter to the administrative law judge for additional proceedings consistent with the Court of Appeals' October 6, 1999 opinion. The administrative law judge denied the respondents' petition for further consideration in an order filed April 5, 2000. The respondents did not appeal the administrative law judge's denial of their petition.
The administrative law judge filed another opinion on May 8, 2000, which is the subject of the instant appeal. The administrative law judge cited the Act 796 statutory language regarding the presence of alcohol and the rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol. However, the administrative law judge determined in his Discussion:
The Arkansas Court of Appeals has found that the "immediate and direct" cause of the accident was the other driver's crossing onto the claimant's side of the road. See Clark, supra.
With the clear directive set forth in the Court of Appeals' Opinion of October 6, 1999, this claim is awarded.
The administrative law judge found that "The claimant, Christopher Clark, deceased, was killed in an automobile accident on November 20, 1996, while driving home from a company mandated business meeting in St. Louis. His death arose out of and during the course and scope of his employment." The administrative law judge therefore directed the respondents "to pay death benefits to the surviving widow and minor children of the deceased claimant pursuant to Ark. Code Ann. § 11-9-527(c)." The respondents appeal to the Full Commission.
II. ADJUDICATION
The claimant contends that the deceased's widow and two minor children are entitled to death benefits as a result of a compensable accident occurring November 20, 1996; therefore, the provisions of Act 796 of 1993 govern this claim.
Arkansas Code Ann. § 11-9-102(5)(B)(iii) (Supp. 1997) states:
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.
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 Pettey v. Olsten Kimberly Quality Care, Full Commission Opinion September 13, 1995 (Claim No. 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, Full Commission Opinion filed December 6, 1995 (Claim No. 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.
In addition, 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 Jones v. FF Services, Inc., Full Commission Opinion filed April 23, 1996 (Claim No. 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.
However, in Patricia McCool v. Disabled American Veterans, Full Commission Opinion filed June 3, 1996 (Claim No. 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., Full Commission Opinion filed August 26, 1996 (Claim No. 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.
In Beaver v. Benton Co. Child Support Unit, Full Commission Opinion filed April 727, 1998 (Claim No. E706094), the claimant was a child support investigator attending a two-week instructional seminar. The claimant and her coworkers typically ate their meals together, and the respondents provided an allowance for two dinner meals and lunch each day of the seminar. Eating with the group was not mandatory, and lunch was considered free time. At lunch, the claimant and her coworkers went to look at a buffet when the claimant slipped and was injured. In making our decision that the claimant in Beaver was not performing employment related services, we looked to Jackson v. Arkansas D.H.S., Full Commission Opinion filed May 12, 1995 (Claim No. E319835), in which we determined that the claimant was not performing work related services during her voluntary presence in the food line at an office potluck, before her actual lunch break started even though she was susceptible to telephone calls until the very moment she began to eat. We also looked toStenhouse v. Harvest Foods, Full Commission Opinion filed October 13, 1995 (Claim No. E402789). There, the claimant was not performing employment services when he was injured when he fell while attempting to step onto a pallet jack, en route to the respondents' cafeteria to eat lunch when this incident occurred. The Commission found that the claimant had "substantially deviated" from his employment duties when he attempted to step onto the pallet jack. The evidence established that riding on a pallet jack was not part of the claimant's job.
The Arkansas Court of Appeals upheld the Commission's decision inBeaver, in Beaver v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618 (1999). After reviewing the facts, the Court discussed the case ofHarding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), in which the court held that even if there was an indirect benefit to the respondent in that her break allowed the claimant to relax, which in turn helped her to work more efficiently throughout the rest of her work shift, "it was not inherently necessary for the performance of the job she was hired to do," and thus there was no error in finding that appellant was not performing employment services when she was injured. The Court went on to find that, in the Beaver case, the appellee paid for the lunches was of no moment, and it was inconsequential that appellee encouraged the group to eat together when viewed against all of the other evidence. The Court stated that there was substantial evidence to support a finding that appellant was not advancing her employer's interest when she was on her lunch break walking to the buffet.
In Kinnebrew v. Little John's Trucks, Inc., Full Commission Opinion filed June 10, 1998 (Claim No. E610157), the claimant was not performing employment services at the time of his injury, where the claimant's injury occurred in the shower when his log books reflected him to be "off-duty." It is undisputed that the claimant was not paid for the time he was "off-duty." The Commission stated that there was nothing about the claimant's grooming which carries out the employer's purpose or advances the employer's interest. The primary activity which the claimant was hired to perform was to drive a truck. The Court of Appeals affirmed the Commission in Kinnebrew v. Little John's Trucks, Inc., 66 Ark. App. 90, 989 S.W.2d 541 (1999):
This court has affirmed on a number of occasions the Commission's factual findings that a claimant injured while performing a personal task, even while on the employer's premises, was not performing "employment services"for the purposes of compensability under Act 796 of 1993. Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). Even if the appellant was acting within the course of his employment under the "traveling salesman exception," the evidence still does not support a finding that the appellant was performing "employment services" when he fell while taking a shower while off duty. Showering is not inherently necessary for the performance of the job he was hired to do. Consequently, we hold that the Full Commission did not err when it found that the appellant was not performing employment services at the time of his injury.
In Marks v. Stone Container Corporation, Full Commission Opinion filed August 11, 1998 (Claim No. E701493), the claimant was injured when he was startled awake by a hotel alarm clock which went off in the middle of the night at the hotel he was using while on a business trip. The Commission held that "In our opinion, sleeping and waking to turn off an alarm clock are not activities which are inherently necessary for claimant to perform the primary activity of his job as a sales manager for respondent."
In Patillo v. Darling Store Fixtures, Full Commission Opinion filed September 14, 1998 (Claim No. E707530), the claimant was injured when she was returning to her work station after a break, and her foot slipped on a step. She argued, on public policy grounds, that her break advanced her employer's interest by allowing her to relax, which in turn helped her to work more efficiently through the rest of her work shift. "In the present case, Act 796 of 1993 applies and, although appellant's break may have indirectly advanced her employer's interest, it was not inherently necessary for the performance of the job she was hired to do." The Commission determined that the case was essentially indistinguishable from the Arkansas Court of Appeals' decision in Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), and denied her claim.
On the other hand, the claimant prevailed where she was required to perform job duties while on break if necessary in Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999). The claimant, while on one of her two paid fifteen-minute breaks, slipped in a puddle of salad dressing as she was getting a snack from the cafeteria to eat during her break. Employees receive free meals for cafeteria workers as inducement for the employees to remain on the premises. Workers' fifteen-minute breaks were occasionally interrupted if a student asks a worker for assistance, and if a worker on break was approached by a student, the worker was required to leave her break and address the student's needs. The Court of Appeals reversed the Commission's decision, finding that the employer did receive a benefit in that the claimant was required to assist student diners if the need arose, a task inherent to her job. The Court specifically noted that, unlike the break in Harding, supra, the 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.
Likewise, in White v. Georgia-Pacific Corporation, 339 Ark. 474, 6 S.W.3d 98 (1999), the Supreme Court reversed the Commission's and the Court of Appeals' denial of benefits. The claimant was injured when he slipped while taking a smoking break. The Supreme Court determined that since the claimant was not provided a relief worker during his breaks, and thus had to monitor his work station during his smoking breaks and to interrupt his break if necessary, that he was performing employment services.
An employee is generally not acting within the course and scope of his employment when he is traveling to and from the workplace. This is known as the going and coming rule. Lepard v. West Memphis Mach. Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995). The rational behind this rule is that an employee is subject to the same hazards and conditions as the general public is. There are, however, exceptions to this rule. One exception is, according to Professor Larson, is where the journey itself is part of the service. The Arkansas Supreme Court in the case of Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 381 524 (1997) states:
It is well-settled law that "traveling men are generally within the course of their employment from the time they leave home on a business trip until they return, for the self-evident reason that the traveling itself is a large part of the job." 1 Arthur Larson, The Law of Workmen's Compensation § 16.01 (1996). Anther example of travel being an integral part of the job is where the employee must travel from jobsite to jobsite, whether or not he or she is paid for that travel time.
***
An additional factor determinative of whether an employee's travel is within the course of employment is whether the employee is required to furnish his own conveyance. "If the employee as part of his job is required to bring with him his own car, truck or motorcycle for use during his working day, the trip to and from work is by that fact alone embraced within the course of employment." Id. § 17.51 (emphasis added) (footnote omitted). The theory behind this principle of law is that the obligations of the job reach out beyond the premises, making the vehicle part of the employment environment and compelling the employee to submit to the everyday hazards associated with road travel, which he or she would otherwise be able to avoid. Id. § 17.52. Furthermore, such a situation is for the benefit of and service to the employer. Id.
The respondents argue that the claimant was not performing employment services at the time of his death on November 20, 1996. The respondents cite Campbell v. Randal Tyler Ford Mercury, 69 Ark. App. ___, ___ S.W.3d ___ (2000), where the Court of Appeals affirmed the Commission's finding that the claimant was not performing employment services at the time of a fatal automobile accident. The claimant inCampbell was a financial manager for Randal Tyler Ford Mercury, and tragically died while driving a company car from his home to his office, with a cell phone and paperwork related to the company business in the car. The Court of Appeals affirmed the Commission's determination that Campbell was not doing something required by his employer, nor was he required to transport paperwork as part of his job. Campbell was a financial manager, not a courier for the respondents. Hence, Campbell was not performing employment services at the time of his death.
Yet, the facts in Campbell are readily distinguishable from the present claim. The Court found in Campbell:
The test for determining whether an employee was acting in the course of employment at the time of his injury requires that the injury occur within the time and space boundaries of his employment while he is carrying out the employer's purpose or advancing the employer's interests directly or indirectly. Pettey, supra.
An employee is generally said not to be acting within the course of his employment while traveling to or from his job. Id. Some exceptions to this rule are where the journey itself is "part of the service," such as traveling men on a business trip and employees who must travel from job site to job site. Id. Whether an employer requires an employee to do something has been dispositive of whether that activity constituted employment services. See Ray v.Univ. of Arkansas, 66 Ark. App. 177, 990 S.W.2d
558 (1999); Coble v. Modern Business Systems,
62 Ark. App. 26, 966 S.W.2d 938 (1998).
In the present matter, the respondent-employer required Mr. Clark's attendance at the business meeting in St. Louis. Further, the claimant was a traveling man, acting within the course and scope of his employment at the time of the automobile accident on November 20, 1996. See, Olsten Kimberly Quality Care v. Pettey, supra. Further, the fact that the claimant was traveling on company business at the time of the accident negates the respondents' additional arguments that the claim should be barred by the going and coming rule, and that the claimant deviated from the course of his employment at the time of the accident. The Full Commission affirms the administrative law judge's finding that the claimant's death arose out of and during the course and scope of his employment.
Likewise, we note that the dissent apparently seeks to distinguish the facts of the present case from the facts in Petty since (1) the claimant in Petty was constantly required to travel in order to perform in-home nursing care, but (2) the claimant in the present case did not constantly drive to and from St. Louis to attend mandatory business meetings for the respondent. The dissent asserts that the claimant ceased performing employment services when he left St. Louis to drive home.
Certainly, the mandatory travel in the present case was temporary, where as the mandatory travel in Petty was permanent. However, in all other respects, we point out that the claimant's travel in the present case was just as inherently necessary to attend his mandatory meetings in St. Louis as was the claimant's travel in Petty to administer in-home care. Clearly, the claimant's mandatory travel to and from St. Louis subjected the claimant to the hazards of road travel for the reasons that the nurse in Petty was subjected by her employment responsibilities to the hazards of road travel. Consequently, we fail to see any logical rationale for concluding that the claimant in Petty was performing employment services during all mandatory road travel, but that the claimant in the present case stopped performing employment services at the point he left St. Louis. As the concurring Commissioner notes, the relevant facts in this case might well better be described as a special errand, since the claimant's driving duties and out-of-state meeting were required on a temporary basis. However, since the claimant's attendance and driving requirements were mandatory, we find that the claimant in the present case would prevail as a traveling employee or as an employee sent on a special errand.
Finally, the respondents assert that the accidental injury of November 20, 1996 was caused by "drunk and reckless driving." Indeed, the claimant's blood alcohol content at the time of the accident was .21; however, the other driver's blood alcohol content was .28. The Arkansas Court of Appeals has determined that there was no evidence that the claimant was speeding at the time of the accident, and that there was no evidence from which the Commission could have concluded that the claimant could have avoided the accident. The "immediate and direct" cause of the accident was instead the other driver's crossing onto the claimant's side of the road. See, Clark v. Sbarro, Inc., 67 Ark. App. 372, 1 S.W.2d 38 (1999). The respondents subsequently petitioned the Court of Appeals for rehearing, which petition was denied. The respondents petitioned the Arkansas Supreme Court for review, which petition was likewise denied. The respondents then petitioned the Commission to further consider their "intoxication" defense, which petition was also denied by the administrative law judge and not appealed by the respondents. In keeping with the mandates of the Court of Appeals and Supreme Court, the Commission once again finds that the claimant rebutted the statutory presumption that the decedent's death was substantially occasioned by the use of alcohol.
Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge's opinion that the claimant was killed in an automobile accident on November 20, 1996, while driving home from a company-mandated business meeting in St. Louis, Missouri, which death arose out of and during the course and scope of his employment. We affirm the administrative law judge's award of death benefits to the surviving widow and minor children of the deceased claimant, pursuant to Ark. Code Ann. § 11-9-527(c).
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
I concur in the principal opinion's findings, but write separately to suggest that the special errand exception to the going and coming rule also supports an award of benefits.
This case was submitted to the administrative law judge on joint stipulations, briefs, and exhibits. The documentary evidence included the affidavit of Tracy L. Clark, the decedent's widow. She stated that claimant was employed as an Area Director for respondents. In that capacity, he supervised nine stores in Arkansas. Claimant was required to attend a two-day regional meeting in St. Louis, Missouri. Ms. Clark indicated that a newly appointed regional director scheduled the meeting so that he could convey his requirements and expectations to his subordinates. The fatal collision occurred as Mr. Clark was returning from the meeting. According to the record, the accident occurred on November 20, 1996, at 8:40 p.m. in Corning, Arkansas. Claimant resided in North Little Rock, Arkansas.
A recognized exception to the going and coming rule is the special errand rule. In his treatise, Professor Larson defined the special errand rule. That definition, contained in 1 Larson's Workers' Compensation Law, § 14.05, is as follows:
When an employee, having identifiable time and space limits on the employment, makes an off-premises journey which would normally not be covered under the going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.
Claimant's attendance at the out-of-state meeting was mandated by his employer. There is no evidence that he routinely attended meetings in St. Louis. As a resident of Pulaski County, Arkansas, a trip by car to St. Louis, Missouri, involved a great deal of time and trouble. The round-trip distance is substantial. A credit card receipt from Applebee's Restaurant in Arnold, Missouri, showed that claimant completed dinner at 5:59. Following dinner, claimant embarked on his journey home. The accident occurred 170 miles from the restaurant in Corning, Arkansas, which is about 165 miles from his home. Clearly, commencing the journey after a full work day increased the inconvenience of the trip, and the hazard as well. In my view, this case is proper for applying the special errand exception to the going and coming rule.
Under prior law, the Arkansas Supreme Court recognized the special errand exception. See, Brooks v. Wage, 242 Ark. 486, 414 S.W.2d 100 (1967). However, I recognize that the courts have yet to confront the applicability of the exception in light of Act 796. Although clearly not dispositive, it is interesting to note that Fisher v. Poole Truck Line, 57 Ark. App. 268, 944 S.W.2d 853 (1997), is cited as a special errand case in Larson's treatise.
According to Larson, the special errand rule confers "portal to portal" coverage. Thus, I am unpersuaded by the dissent's assertion that recovery is barred because the fatal accident occurred on claimant's journey home.
Based on the foregoing, I concur.
_________________________________ PAT WEST HUMPHREY, Commissioner
Commissioner Wilson dissents.
I respectfully dissent from the majority's opinion finding that the claimant was performing employment services at the time of the accident.
In my opinion, the claimant was not performing employment services at the time that he sustained his injuries. The majority found that the claimant's travel was an inherent and necessary incident of a required employment activity, akin to the Pettey case. There, the Court found that travel was a necessary part of the claimant's employment. Accordingly, the Court held that the injuries the claimant sustained in a car accident while traveling to a client's house were compensable. However, in my opinion, the Pettey case is distinguishable from the facts of this case. There, the claimant was actually performing employment duties at the time of the injury. As part of the her job duties, the claimant was required to travel to and from patients homes. The Court stated that the claimant was "required by the very nature of her job description to submit herself to the hazards of day-to-day travel in her own vehicle, back and forth to the homes of her patients." The claimant in this case was not actually performing any employment related duties at the time of his injury. He was driving home from a business meeting. The claimant in Pettey had already been to her duty station and was on her way to visit a client at the time of the accident. The claimant in this claim was on his way home from a business meeting when the accident took place. When the claimant left St. Louis, he ceased carrying out his employer's purpose or advancing his employer's interest. Therefore, in my opinion, Pettey is distinguishable.
Therefore, for all the reasons set forth herein, I find that the claimant was not performing employment services at the time of the accident. Therefore, I respectfully dissent from the majority opinion awarding benefits.
______________________________ MIKE WILSON, Commissioner