Opinion
CV-23-90
03-13-2024
JEFFREY HARVEY APPELLANT v. UNIVERSITY OF ARKANSAS AND PUBLIC EMPLOYEE CLAIMS DIVISION APPELLEES
David Schneider, for appellant. Robert H. Montgomery, for separate appellee Public Employee Claims Division.
APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. H201208]
David Schneider, for appellant.
Robert H. Montgomery, for separate appellee Public Employee Claims Division.
BRANDON J. HARRISON, CHIEF JUDGE
Jeffrey Harvey appeals the decision of the Arkansas Workers' Compensation Commission (the Commission) that affirmed and adopted the opinion of the administrative law judge (ALJ) finding that he had failed to prove that he suffered a compensable injury to his back. The Commission found that Harvey was not performing employment services at the time of his injury. On appeal, Harvey asserts that the Commission misapplied the law and ignored Arkansas Supreme Court precedent. We affirm the Commission's decision.
Harvey alleged that he injured his back when he slipped while stepping out of the shower. The University of Arkansas (the University) did not accept his injury as compensable because it claimed he was not performing employment services at the time of the alleged injury. The ALJ conducted a hearing on 20 July 2022, and the following testimony was offered.
Harvey testified that he is employed as a generalist at the University, which is a position that entails maintenance, repairs, and various other duties that are assigned by his supervisors. His work hours are 8:00 a.m. to 4:30 p.m., and he is assigned to the Holcombe, Futrall, and Gatewood dormitories. On 2 February 2022, he stayed overnight in the Holcombe dormitory because there was inclement weather, and the University needed essential personnel for the next day to shovel snow, salt sidewalks, and perform other tasks. The roads were impassable, and he would not have been able to drive to work from his home in Bella Vista. Staying in the dorm also benefited him personally since the University pays "double time and a half" as inclement-weather compensation.
At approximately 6:30 a.m. the next morning, Harvey took a shower, slipped while stepping out of the shower, and fell on his backside. He crawled to his bed, called his supervisor, and then called 911. He was taken by ambulance to the hospital and evaluated in the emergency room for a couple of hours. He was diagnosed with a compression fracture in his lumbar spine and was off work from February 3 to May 11.
On cross-examination, Harvey conceded that he was not required to stay on campus due to the inclement weather, and none of his supervisors had said he needed to stay on campus. He also agreed that his regular start time was 8:00 a.m. and that he had not yet clocked into work on the morning of his injury. Finally, he explained that at the time of his injury, he was not on the maintenance department's emergency on-call list because he had a medical release.
William Green, the assistant director of operations and maintenance in the University's housing department, testified that it was common for the University to offer housing to some personnel during inclement weather. On 31 January 2022, he emailed the maintenance team and asked if anyone wanted to volunteer to stay on campus in light of expected inclement weather. He received five or six affirmative responses, including Harvey's.
Green explained that for emergency maintenance that is required after hours- between 4:30 p.m. and 8:00 a.m.-the maintenance department has an on-call list that changes weekly. Everyone on the maintenance team is on the rotation list unless they have a medical release. Harvey is not on the list, so on the night of February 2 and early morning of February 3, he would not have been called in the event of an emergency, even though he was staying on campus. On cross-examination, Green agreed that the University benefited from having maintenance personnel stay at the dorms on inclement weather days.
The ALJ found that Harvey had failed to meet his burden of proving that he suffered a compensable injury because he had not been performing employment services at the time of his injury. In making its decision, the ALJ relied on Lopez v. James Divito Racing Stable, 2021 Ark.App. 257, 625 S.W.3d 742. In Lopez, the claimant worked with racehorses stabled at Oaklawn, and during racing season, Oaklawn provided complimentary rooms to some race teams, including Lopez's team. On the morning of 6 March 2017, Lopez awoke to a fire and the smell of smoke. He jumped out of a second-story window to escape the fire and injured his back. Lopez filed a workers'-compensation claim contending that he suffered a compensable injury, but the Commission found that he was not performing employment services when he was injured. Importantly, the Commission found that Lopez was not required to live on premises as a condition of his employment but chose to stay at Oaklawn because it was free and convenient. In affirming the Commission's decision, this court held,
Lopez was not within the time and space boundaries of his employment when he was injured. He had returned from dinner, there was no race the next day, and his set work hours did not begin until later that morning. What Lopez was doing at the time of the injury-sleeping-was not inherently necessary for the performance of his job as a hot walker. He was merely attending to his own personal needs. Lopez was not indirectly advancing his employer's interest either. The fire apparently occurred at 5:45 a.m., which was before his work began. Lopez was free to do as he pleased and had no employment obligation of any kind as he slept in a room above the stables provided for his convenience. Lopez's back injury is most regrettable; but it is also not compensable under Arkansas law.
Id. at 9, 625 S.W.3d at 747-48.
The ALJ found that the present case is similar to Lopez. Harvey was not required to stay in a dorm room on campus on the night of February 2; instead, he volunteered to stay. He was not told by any of his supervisors that he needed to stay. Further, he was not on call and would not have been contacted for an emergency situation between the hours of 4:30 p.m. and 8:00 a.m. Harvey's work hours did not begin until 8:00 a.m. on February 3. The ALJ concluded that at the time of Harvey's fall, he was merely attending to his own needs. "Claimant was free to do as he pleased and had no employment obligation as he slept in a dorm room provided for his own convenience. Therefore, claimant was not performing employment services at the time of his injury."
Harvey appealed to the full Commission, which affirmed and adopted the ALJ's decision. Harvey has timely appealed the Commission's decision to this court.
When the Commission affirms and adopts the ALJ's opinion, thereby making the findings and conclusions of the ALJ the Commission's findings and conclusions, we consider both the ALJ's opinion and the Commission's opinion in our review. Watson v. Highland Pellets, LLC, 2022 Ark.App. 132, 643 S.W.3d 267. We review the Commission's decision in the light most favorable to its findings and affirm when the decision is supported by substantial evidence. Parker v. Atl. Rsch. Corp., 87 Ark.App. 145, 189 S.W.3d 449 (2004). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. It is the Commission's duty to make determinations of credibility, to weigh the evidence, and to resolve conflicts in medical testimony and evidence. Martin Charcoal, Inc. v. Britt, 102 Ark.App. 252, 284 S.W.3d 91 (2008). While the Commission's decisions are insulated to a significant degree by a deferential standard of review, its decisions are not beyond a meaningful appellate review. Kimbell v. Ass'n of Rehab Indus., 366 Ark. 297, 235 S.W.3d 499 (2006). We will reverse the Commission's decision if we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions of the Commission. Pulaski Cnty. Special Sch. Dist. v. Stewart, 2010 Ark.App. 487, 375 S.W.3d 758.
In his brief, Harvey erroneously asserts that this case involves the application and interpretation of the Arkansas Workers' Compensation Act and that this court should apply a de novo standard of review.
In order for an accidental injury to be compensable, it must arise out of and in the course of employment. See Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2023). A compensable injury does not include an injury incurred when employment services were not being performed. Ark. Code Ann. § 11-9-102(4)(B)(iii). An employee is performing employment services when he or she is doing something that is generally required by his or her employer. Cont'l Constr. Co. v. Nabors, 2015 Ark.App. 60, 454 S.W.3d 762. We use 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. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). 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, either directly or indirectly. Id. Moreover, whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Ctrs. for Youth &Families v. Wood, 2015 Ark.App. 380, 466 S.W.3d 422.
On appeal, Harvey argues that the Commission erred in finding that Lopez is controlling. He contends that the Lopez opinion "spent considerable time explaining that Mr. Lopez's employer was not benefiting from him staying on-site. This was obviously the critical point the Lopez decision turned on." Here, he argues, the University owned, operated, and had complete control over the housing unit where Harvey injured his back. In addition, staying in the University's residential dormitory benefited his employer, and Harvey was encouraged to stay by being paid two and a half times his regular salary if he stayed on campus during inclement weather.
Harvey also discusses two Arkansas Supreme Court cases that he says should have guided the Commission's decision. In Deffenbaugh Industries v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993), the claimant sustained injuries when a tornado destroyed the mobile home where he resided on his employer's premises. The supreme court held that because Angus was required to live on the premises as a condition of his employment and was on call twenty-four hours a day, seven days a week, he qualified as a resident employee. As such, "the entire period of his presence on the premises is deemed included in the course of employment." Id. at 104, 852 S.W.2d at 807 (quoting 1 A Larson, Law of Workmen's Compensation, § 24.00 (1992)). The supreme court also noted that the employer obviously benefited from Angus's accessibility to the plant and the security his presence provided; in addition, Angus had been waiting for a particular truck to arrive when the tornado struck. The court concluded, "Clearly, the conditions and obligations of Angus's employment exposed him to higher risk, positioned so that the tornado dealt the injuries he suffered. Therefore, we affirm the Court of Appeals decision that the claimant's injuries arose out of and in the course of his employment." Defenbaugh, 313 Ark. at 106, 852 S.W.2d at 808- 09.
In Jivan v. Economy Inn &Suites, 370 Ark. 414, 260 S.W.3d 281 (2007), the claimant was the estate of Nimisha Jivan, deceased, who was an assistant manager at the Economy Inn in Hope, Arkansas, and whose husband, Jack Jivan, was a manager. The Jivans lived in a room provided by the hotel and carried out their work responsibilities on the premises. On 17 February 2003, Nimisha, who was off duty, was changing her clothes while in the bathroom of her hotel room preparing to go to the gym. A fire broke out, and Nimisha was not able to escape her hotel room. She died as a result of smoke inhalation.
The parties had stipulated that Nimisha was on call twenty-four hours a day, and while on the premises, she was to carry out her responsibilities as an assistant manager of the hotel by being available for work duties at all times. Nimisha was expected to reside on the premises, and as a residential employee of the hotel, the condition of living at the hotel "intensified the risk of injury due to extraordinary natural causes." Id. at 419, 260 S.W.3d at 286 (quoting Deffenbaugh, 313 Ark. at 106, 852 S.W.2d at 808). In other words, her 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, the supreme court held that Nimisha indirectly advanced her employer's interests at the time of her death.
Harvey contends that the present case clearly aligns with the holdings of Deffenbaugh and Jivan: Green testified that the University benefited from having maintenance personnel stay at the dormitory during inclement weather, and the dormitory was owned by the University. Just like Jivan was injured while changing clothes in the bathroom of the residence provided by her employer, Harvey was showering in a communal shower in the University dormitory when he slipped and fell, injuring his lower back.
The key factor in Jivan and Deffenbaugh that is missing in the present case is that the claimants in those cases were resident employees who lived on premises and were on call twenty-four hours a day, seven days a week. Here, Harvey volunteered to stay at the dormitory rather than attempt to drive in to work the next day. The University did not require him to stay as a condition of employment, and he was not on call between the hours of 4:30 p.m. on February 2 and 8:00 a.m. on February 3. His fall occurred at approximately 6:30 a.m. on February 3, when he was attending to personal needs and not within the time and space boundaries of his employment. Like Lopez, Harvey was not performing any activity inherently necessary for the performance of his job, and he was not indirectly advancing his employer's interests. At the time that the fall occurred, Harvey was free to do as he pleased and had no employment obligation of any kind. We hold that reasonable minds could reach the conclusion that Harvey was not performing employment services at the time of his injury and affirm the Commission's decision.
Affirmed.
WOOD and MURPHY, JJ., agree.