Opinion
CLAIM NO. E807300
OPINION FILED NOVEMBER 28, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE H. OSCAR HIRBY, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE RICHARD S. SMITH, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed.
OPINION AND ORDER
In the above-styled matter, the Arkansas Court of Appeals has reversed the Full Commission's decision and has remanded for further consideration in light of Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001). After reviewing the entire record de novo, the Full Commission finds that the claimant sustained an accidental injury arising out of and in the course of his employment on May 13, 1998.
I. HISTORY
The parties stipulated that the employment relationship existed at all relevant times, including May 13, 1998. Jerry L. Hayes, age 50, wrote an incident report on May 13, 1998:
Around 10:40 a.m. I was approaching the men's room from the break room entrance, directly straight ahead. There's an intersection, the mailman was coming from the right direction with a dolly loaded with supplies going to the supply room. He hit my side, legs from the blind side, knocked me down, as I was looking to reached (sic) for the door. It wrenched my back. I can feel the pain more intense (sic) as I sit now.
A physician's note dated May 13, 1998 indicates that the claimant complained of back pain after an "incident," that is, "collision with mailman." Dr. Stephen A. Ziller, III reported on May 15, 1998:
The patient presents for an urgent followup because he pulled a muscle in his back last
Wednesday. . . . The patient has marked paravertebral muscle body tenderness without spasm. The patient has been taking local heat, whirlpool, and ibuprofen without significant improvement.
Dr. Ziller's impression was "Acute low back sprain," and he continued conservative treatment. A physical therapist began reporting "decreased muscle guarding" on June 2, 1998. Dr. Ziller referred the claimant to an orthopedic surgeon, Dr. John G. Slater, who reported on June 26, 1998:
This 47 year old male was injured at work on
May 13, 1998. A mailman was rolling a dolly of mail down the hole and it struck him from the blind side. He was knocked over by the mail cart and has had right lower extremity pain. He hit the floor and he twisted his back. He has had low back pain constantly since then. . . .
IMPRESSION:
1. Lumbosacral sprain from an injury at work on May 13, 1998.
2. Lateral epicondylitis, right elbow.
a. Status post two cortisone injections.
3. Status post arthroscopic partial medial meniscectomy for a bucket handle tear on December 21, 1995.
Dr. Slater treated the claimant conservatively and wrote, "I think Jerry is going to make a full recovery from this with some more healing time." In a certificate dated June 30, 1998, Dr. Ziller stated that the claimant could return to light work on July 6, 1998.
Mr. Hayes claimed entitlement to worker's compensation. The claimant essentially contended that he sustained an accidental injury as the result of a specific incident occurring May 13, 1998, and that he was entitled to reasonable and necessary medical treatment. The claimant contended that he was entitled to temporary total disability compensation from May 15, 1998 through July 6, 1998.
The respondents contended that the claimant failed to prove that he sustained a compensable injury. The respondents specifically asserted that "the claimant was not engaged in a work activity at the time of the alleged injury; and that the alleged incident is not the cause of claimant's medical difficulties." The respondents also contended that the claimant failed to establish a compensable injury with objective medical findings.
After a hearing before the Commission, the administrative law judge filed an opinion on August 18, 1999. The administrative law judge found that the claimant sustained a compensable injury on May 13, 1998. The administrative law judge found that Act 796 of 1993 did not repeal the "personal comfort doctrine," but even if it did, "claimant's injury arose out of and during the course of his employment with the Employment Security Division." The administrative law judge found that the claimant was temporarily totally disabled from May 14, 1998 through July 6, 1998, and that the respondents were liable for all reasonable and necessary medical treatment. The respondents appealed to the Full Commission.
The Full Commission vacated the administrative law judge's decision and remanded for additional findings in an opinion filed February 28, 2000. The Full Commission initially noted that the parties disputed whether the claimant was trying to enter the bathroom door, or was instead trying to go to the supply room at the time of injury. The Full Commission determined, "The Personal Comfort Doctrine, which preexisted Act 796 of 1993 would appear to have no bearing on an injury sustained while attempting to reach the supply room to pick up supplies, but would have bearing on an injury sustained while traveling to the restroom." The Full Commission found:
In light of the evidence cited to us on appeal, we do not agree with the administrative law judge's conclusion, that the respondents' assertion that the claimant was on his way to the bathroom is based on speculation and conjecture. Instead, the respondents' assertion appears to be based on documentary evidence in the record that is not referenced in the administrative law judge's analysis. We therefore remand this case to the administrative law judge for additional findings, after a complete review of the entire record, as to whether the preponderance of the evidence indicates that the claimant was traveling to the supply room or was traveling to the restroom at the time of his injury.
The administrative law judge filed another opinion on March 14, 2000, and entered the following Additional Findings of Fact and Conclusions of Law:
1. On May 13, 1998, the claimant, while on his way to obtaining supplies necessary for work, claimant took a temporary deviation and was traveling to the restroom when he was struck by a mail-cart, resulting in a physical injury as reflected by medical evidence supported by objective findings.
2. The claimant was performing employment services when he sustained his admitted injury.
3. Taking a restroom break is an incidental activity that is inherently necessary for the performance of the claimant's primary work.
The respondents again appealed to the Full Commission. The claimant cross-appealed and stated that the administrative law judge erred in finding that the claimant took a temporary deviation and was traveling to the restroom when he was struck by a mail cart. In an opinion filed August 9, 2000, the Full Commission reversed the administrative law judge's decision, finding that "the claimant was not performing employment services when he was struck by a mail-cart while walking to the restroom."
The claimant appealed to the Arkansas Court of Appeals. The claimant stated to the Court of Appeals that there was not substantial evidence to find that the claimant was not performing employment services when he was struck by a mail cart at work on May 13, 1998. In an unpublished opinion delivered October 3, 2001, the Court of Appeals reversed the Full Commission's conclusion that the claimant was not performing employment services at the time of his injury. The Court remanded to the Commission for further consideration of the claim in light of Matlock v. Arkansas Blue Cross Blue Shield, supra.
In its opinion, the Court of Appeals concluded that "there was substantial evidence to support the Commission's finding that appellant was traveling or walking to the bathroom when he was injured." However, "Because the Commission did not have the guidance of the Matlock decision in determining whether appellant was performing employment services at the time of his injury, we reverse and remand this case, so that the Commission may reconsider its decision in light of Matlock."
II. ADJUDICATION
A. Employment Services
The claimant contends that he sustained an accidental injury as the result of a specific incident occurring May 13, 1998. Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(A) (Supp. 2001), 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 when he is not performing "employment services." An employee is performing "employment services" when he is engaged in the primary activity which he is hired to perform or any incidental activity which is inherently necessary for the performance of the primary employment activity. Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W.2d 956 (1996); Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998). Whether a worker is performing employment services within the course of employment depends on the particular facts and circumstances of each case. Matlock v. Arkansas Blue Cross Blue Shield, supra.
In Matlock, the claimant appealed the Commission's denial of benefits for alleged injuries suffered when the claimant fell while returning to her work station after a trip to the restroom. The claimant argued that the Commission erroneously interpreted Act 796 of 1993 in determining that she was not performing "employment services" at the time of her injuries. The Court of Appeals held that substantial evidence did not support our finding that the claimant was not performing employment services when she slipped and fell. "Thus, we reverse the Commission's decision and remand for a determination of appellant's benefits. In reaching this decision, we serve notice that our statement in Beaver v. Benton County, 66 Ark. App. 153, 156, 991 S.W.2d 618, 620 (1999), that `the personal-comfort doctrine is no longer the law,' was obiter dictum. Finally, we take this opportunity to list some factors that should be instructive to the Commission, employers, workers, and their legal counsel in determining whether an employee's activity falls within the course of employment." The Court of Appeals has therefore listed several factors which may be relevant in determining whether an employee was performing employment services at the time of his injury. These include:
(1) Whether the accident occurs at a time, place, or under circumstances that facilitate or advance the employer's interests;
(2) Whether the accident occurs when the employee is engaged in activity necessarily required in order to perform work;
(3) Whether the activity engaged in when the accident occurs is an expected part of the employment;
(4) Whether the activity constitutes an interruption or departure, known by or permitted by the employer, either temporally or spatially;
(5) Whether the employee is compensated during the time that the activity occurs;
(6) Whether the employer expects the worker to cease or return from permitted non-work activity in order to advance some employment objective.
Based on the Court of Appeals' remand in the present matter, the Full Commission now affirms the administrative law judge's finding that the claimant was performing employment services when he was struck by the mail cart on May 13, 1998. The Full Commission finds from a preponderance of the evidence that the claimant was performing an incidental activity that was inherently necessary for the performance of his primary activity. The preponderance of the evidence indicates that the claimant was proceeding to the company restroom when he was struck by the mail cart. The claimant was on the employer's premises, a restroom was provided on the premises, and the claimant was compensated for his time. As in Matlock, there is no evidence that the claimant was violating or undermining any interest of the employer by going to the restroom. The claimant was engaged in conduct permitted by the employer. There is no evidence before the Commission that the claimant's trip to the restroom was so great as to show an intent to abandon his job. See, Lytle v. Arkansas Trucking Services, 54 Ark. App. 73, 923 S.W.2d 292 (1996). The Full Commission finds that the instant claimant was advancing his employer's interests at the time of his accidental injury. The Full Commission thus affirms the administrative law judge's finding that the claimant was performing employment services at the time of the May 13, 1998 specific incident.
Additionally, the Full Commission affirms the administrative law judge's implicit finding that the claimant sustained an accidental injury which caused physical harm to the body and required medical services. The Full Commission finds that the claimant established his injury by medical evidence supported by "objective findings." These "objective findings" consist primarily of reports of "muscle guarding" in the record. We have previously determined that "muscle guarding" is an objective finding.Spencer v. Superior Industries, Workers' Compensation Commission E812836/E900900 (Dec. 21, 1999), citing Murry v. Riceland Foods, Workers' Compensation Commission E516632 (Jan. 20, 1999).
Based on our de novo review of the entire record, the Full Commission finds that the claimant sustained an accidental injury arising out of and in the course of his employment on May 13, 1998. We find that the claimant proved entitlement to temporary total disability compensation from May 14, 1998 through July 6, 1998, in addition to reasonable, necessary, and related medical treatment. The Full Commission therefore affirms the opinion of the administrative law judge. 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(Supp. 2001). The claimant's attorney is entitled to the maximum statutory fee on benefits awarded herein, one-half of which is to be paid by the claimant and one-half to be paid by the respondents, pursuant to Ark. Code Ann. § 11-9-715(a) (Supp. 2001). See, Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345 (1990). For prevailing on the respondents' appeal before the Full Commission, the claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 pursuant to Ark. Code Ann. § 11-9-715(b)(1).
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.