Opinion
CLAIM NO. E707385
OPINION FILED JULY 30, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by DAVID McCORMICK and BUNNY BULLOCK, Attorneys at Law, Russellville, Arkansas.
Respondents represented by THOMAS MICKEL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the Administrative Law Judge on November 3, 1998. In that opinion and order, the Administrative Law Judge determined that claimant was performing employment services at the time of her fatal accident. Moreover, the Administrative Law Judge awarded funeral expenses pursuant to Ark. Code Ann. § 11-9-527 (a) (Repl. 1996). Based on our de novo review of the record, we find that claimant was performing employment services at the time of her fatal injury. We further find that respondents are liable for funeral expenses in accordance with Ark. Code Ann. § 11-9-527 (a). Therefore, we find that the decision of the Administrative Law Judge must be affirmed.This is a catastrophic case for it involves the untimely demise of an educator. Claimant was a fifth grade science, social studies and math teacher. The Arkansas Game and Fish Commission (GFC) awarded claimant a grant for the purchase of an aquarium. The aquarium was to be placed in the lobby of the school so that all students would benefit from the project. Respondent employer agreed to pay for an aquarium stand. On Saturday, February 1, 1997, claimant's spouse purchased the stand from a pet shop. The following day, claimant drove to the employer's premises so that she could assemble the stand. However, she discovered there were missing parts. Claimant returned home to telephone the pet shop before departing again.
Claimant had reached the school grounds, and she was traveling on the road leading to the doors of the school. Apparently, she failed to see a gate constructed of metal posts positioned across part of the road. She drove into the gate, and a post impaled the truck's windshield striking claimant and killing her instantly.
Claimant's spouse testified at the hearing. He stated that the school furnished claimant with a key to the premises. Claimant's spouse testified that she routinely worked nights, weekends and holidays. Mr. Kelsey testified that the pet shop did not offer a delivery service; therefore, it was necessary for the aquarium stand to be picked up. He stated that to pay for the stand, his spouse furnished a check from the school. Mr. Kelsey stated that on the day of the accident, claimant returned home to call the pet shop because she had no access to a telephone at the school. He testified that when claimant returned home, she thought that she could pick up the missing parts. However, she discovered that the missing parts could not be obtained, and an exchange would be necessary. Mr. Kelsey's testimony revealed that before leaving home, claimant advised him that "if they call back tell them I am taking it down there, I'm going to get another one or the money back or something."
Nevertheless, respondents argue that speculation is required to decide the reason for claimant's return to the school grounds on the date of her death. We cannot agree. The testimony of Mr. Kelsey supports a finding that claimant returned to the school for the sole purpose of picking up the defective kit and returning it to the store for an exchange or a refund. Moreover, no evidence exists to support a finding that claimant returned to the school grounds for any other reason.
Ms. Bula Pierson testified in behalf of claimant. She stated that she shared teaching responsibilities with claimant, and worked closely with her. Ms. Pierson explained that she taught fifth grade English, reading, and language arts. Ms. Pierson testified that she, too, had a key to the school. She stated that claimant could not assemble the aquarium during school hours, without taking six to eight weeks to complete the project. She testified that claimant frequently had animals in her classroom. Accordingly, respondent employer required her to tend to the needs of the animals outside normal school hours.
Ms. Pierson addressed the importance of engaging in special projects, noting that the school district encouraged such activity, explaining that:
To be considered an outstanding teacher, you did this. It was not required, but on your evaluation it would be taken in note what you did and did not do. And, as far as [claimant] and I were concerned, we wanted to be outstanding teachers and we went beyond the minimum. If we spent the minimum working on our job, we would have attended school from eight until three forty-five. We would not have been out there after school. But some of the activities that Kelsey did and I did with her, you cannot do it during school hours. . . . You cannot educate and build activities at the same time. It's impossible.
Claimant called Dr. Larry Rodgers, Superintendent of Schools, as an adverse witness. His testimony corroborated that of Ms. Pierson. In that regard, Dr. Rodgers stated that teachers who engaged in auxiliary projects "were probably perceived as more effective in the area of instruction than the teachers who did the minimum." Dr. Rodgers acknowledged that the aquarium project furthered the employer's interests. With respect to the purchase, delivery, and assembly of the aquarium, Dr. Rodgers testified that claimant, as the grant initiator, was responsible for those duties. He acknowledged that these tasks would "more than likely" have to be accomplished outside regular school hours. Dr. Rodgers agreed that working at school on weekends did not violate district policy. Indeed, he stated that claimant had permission to use animals in the classroom, and it was her responsibility to care for the animals.
The facts are essentially undisputed, and this case involves a question of law. That is, whether claimant was performing employment services within the meaning of Act 796 at the time of her death.
In Pilgrim's Pride Corporation v. Caldarera, 54 Ark. App. 92, 923 S.W.2d 290 (1996), the Court of Appeals stated that: "The test for the course of employment requires that the injury occur within the time and space boundaries of the employment, while the employee is carrying out the employer's purpose or advancing the employer's interests directly or indirectly." (Quoting, Deffenbaugh Indus. V. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993)).
In Ray v. University of Arkansas, Slip Op. Filed April 28, 1999 (CA98-1215), the Court of Appeals held that a school cafeteria employee was performing employment services at the time of her injury, which was sustained during a break while reaching for an apple furnished by the employer for personal consumption. The court reasoned that claimant was paid for her breaks, and she was expected to cease her break to assist students. The Court of Appeals also noted that the employer benefited from claimant's presence in the cafeteria. Recognizing that claimant was not assisting a student at the time of her injury, the Court of Appeals declined to find this factor outcome determinative.
The court's opinion in Ray included a case law survey of cases addressing the employment services issue. In their discussion, the Court of Appeals distinguished Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998). In Harding, the Court of Appeals denied benefits to an employee injured en route to a smoking break. In reaching their decision, the court viewed the benefit to the employer as tangential, acknowledging that the break may have indirectly furthered the employer's interests. However, the Court of Appeals concluded that the break was not "inherently necessary" to accomplish the employee's job duties.
In our view, Crossett School District v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999), is instructive. In Fulton, claimant worked as a school teacher. After reporting for work, she received an assignment that required the use of her reading glasses. When claimant realized that her glasses were in the car, she proceeded to the parking lot to retrieve them. She slipped on ice in the employer's parking lot. The court determined that claimant was performing employment services at the time of her injury. In so holding, the Court of Appeals distinguishedHightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1998), a case upon which respondents rely. The court noted that the injury in Hightower occurred before the commencement of any employment services. On the other hand, the claimant in Fulton had reported for work and the injury occurred during her efforts to fulfill employment duties as assigned.
At the time of her death, claimant was implementing the grant she secured from the GFC. Significantly, the school district encouraged projects involving animals. The policy manual contains a section entitled "Animals in the Classroom." This document provides that "[a]nimals in the classroom can serve as a valuable instructional tool." Although Dr. Rodgers testified that the administration intended the document to impose limitations upon animal visitations in the classroom, the policy statement is evidence of the educational value of such visitations. The school administrations' willingness to pay for the stand is evidence of their support for claimant's aquarium project. Dr. Rodgers acknowledged that setting up the aquarium within the parameters of the normal school day would have been difficult. Claimant planned to display the aquarium in the school's lobby, and assembling it during the school day would have been disruptive.
Therefore, she transported the stand to the school and commenced assembly Sunday. After discovering the kit's deficiencies, she returned home to call the pet shop. Then, she backtracked to the employer's premises, so that she could place the stand parts in the truck and accomplish an exchange. Her fatal accident occurred on school premises before she could collect the stand parts.
Dr. Rodgers conceded that the aquarium project furthered the employer's interests. He acknowledged that the principal had furnished claimant with a key so that she could work on weekends, as needed. The school did not pay claimant mileage to pick up the stand; however, this is not dispositive with respect to the employment services question. Olsten Kimberly Quality Care v Pettey, 328 Ark. 381, 944 S.W.2d 381 (1997). In our opinion, claimant was directly furthering the employer's interests at the time of her death. Therefore, we specifically find that she was performing employment services.
On appeal, respondents argue that since claimant was not required to engage in special projects, she was not performing employment services at the time of her death. We cannot agree. Although claimant was not required to procure grants, the credible testimony of Ms. Pierson establishes that a teacher's performance is evaluated, in part, upon whether she pursued auxiliary projects that enhanced the learning experience. This evidence is bolstered by the testimony of Dr. Rodgers. He conceded that teachers who did the minimum were likely deemed less effective in the area of instruction that those who engaged in auxiliary projects. Thus, the evidence establishes that respondent employer expected educators to engage in auxiliary projects.
The testimony of Dr. Rodgers also establishes that once the grant was awarded, claimant was solely responsible for implementation of the GFC grant. Therefore, the absence of an initial contractual obligation on claimant's part is not dispositive since her participation became compulsory.
Based on our de novo review of the record, and for the foregoing reasons, we specifically find that claimant's fatal accident occurred on school premises during the course of an errand for a work-related project. Thus, the performance of employment services test is satisfied. Moreover, we find that respondents are liable for the payment of funeral expenses in accordance with Ark. Code Ann. § 11-9-527 (a) (Repl. 1996). Respondents conceded dependency, and all other issues were specifically reserved. The decision of the Administrative Law Judge is affirmed. All accrued benefits shall be paid in a lump sum and without a discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision pursuant to 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.
CONCURRING OPINION
[24] I concur in the principal opinion's findings, but write separately to express my conclusions on the employment services issue presented in this case. The preponderance of the credible evidence in this case establishes that (1) the claimant's automobile accident occurred while traveling en route from her home to the school where she worked, and (2) the claimant had returned to her home (from the school) prior to the accident to place a telephone call to Pet's Mart regarding her ongoing aquarium project at school.The dissent suggests that this case is similar to our recent decision in Ronald Campbell v. Randal Tyler Ford Mercury, Inc., Full Workers' Compensation Commission, Opinion filed July 9, 1999 (W.C.C. No. E809862). The facts in Campbell are distinguishable from the facts in the present case for the following reasons. In Campbell, the claimant's automobile accident occurred on a Monday morning while the claimant was traveling from his home to his regular place of business to begin his normal work week. In the present case, the claimant traveled on a Sunday afternoon from her school to her home to make a work-related telephone call, and her accident occurred on the return trip from her home to the school. Since the claimant left the school grounds on a work-related errand (i.e., to place a long-distance telephone call), I find that the claimant was engaged in employment services during the course of her travel from the school to her home, and from her home back to the school.
I agree with the conclusion of the principal opinion that the facts in this case, where the claimant's injury/death occurred during the course of a work-related errand, are much closer to the situation considered by this Commission and then by the Court of Appeals in Crossett School District v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). In Fulton, the claimant (a certified teacher) left the school building to retrieve her glasses from her car. On the way back to the school from her car, she tripped and fell on ice in the parking lot. In affirming this Commission's finding that the teacher in Fulton was performing employment services at the time of her injury, the Court of Appeals reasoned:
Arkansas Code Annotated section 11-9-102(5(B)(iii) states that a compensable injury does not include an "injury which was inflicted upon the employee at a time when employment services were not being performed. . . ." The question before this court is whether retrieving reading glasses required to complete a duty of employment is an employment service.
The appellant relies on Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608(1997), in which a day-care worker slipped in the parking lot on her way to report to work. That case is distinguishable in that the claimant in Hightower was injured before she began her employment services that day. In this case, the appellee had reported to work, had supervised children before the bell rang beginning school, was given an assignment after reporting to the librarian, and injured herself in efforts taken to complete the assignment. Those facts constitute substantial evidence that appellee was performing employment services at the time of her injury.
For my part, I find the facts presented in Campbell analogous to Hightower (where the claimant's injury occurred before she began her employment services for the day), and I find the facts inn the present case much more analogous to Fulton (where the claimant's injury occurred while returning to the school building in the course of an errand necessary to carry out her assignment).
______________________________ ELDON F. COFFMAN, Chairman
DISSENTING OPINION
[31] I respectfully dissent from the majority's opinion. The thrust of the testimony from the July 28,1998 hearing, centered on whether claimant's actions of being at the school on a Sunday afternoon to assemble an aquarium acquired through an Arkansas Game and Fish Commission Grant, constitutes employment services. Ark. Code Ann. § 11-9-102(5)(A) (Repl. 1996) defines "compensable injury" as:
An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death.
The test for determining whether the employee was acting "within the course of employment" at the time of the injury requires that the injury occur within the time and space boundaries of the employment, when the employee is carrying out the employer's purpose or advancing the employer's interests directly or indirectly. Judy Beaver v. Benton County Child Support Unit, Full Commission Opinion filed April 27, 1998; Olsteen Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997); Pilgrims Pride Corp. v. Caldarera, 54 Ark. App. 92, 923 S.W.2d 290 (1996). In Olsteen Kimberly Quality Care v. Pettey, supra, the Arkansas Supreme Court stated:
Conversely, an employee is generally said not to be acting within the course of employment when he or she is traveling to and from the work place. This "going and coming" rule ordinarily precludes recovery for an injury sustained while the employee is going to or returning from his place of employment. The rationale behind this rule is that an employee is not within the course of his employment while traveling to or from his job. There are, however, exceptions to this rule.
In Olsteen Kimberly Quality Care v. Pettey, the Arkansas Supreme Court affirmed the finding of this Commission that the claimant was engaged in employment services at the time of her injury. Both the Court and this Commission relied upon the fact that the claimant's travel as a home healthcare nurse was an inherent and necessary incident of that claimant's required employment activity, and that her travel was an essential component of the services she provided.
In a more recent opinion, the Arkansas Court of Appeals found that a claimant who was out of town on business and who was involved in a automobile accident when, during a lunch break, she drove to the mall to purchase a pair of replacement hose after the hose she was wearing developed a run, was not performing employment services. The Court found that the claimant's trip to the mall to purchase pantyhose was not a requirement or essential component of the services she provided and, thus, did not constitute employment services for purposes of Act 796. See, Coble v. Modern Business Systems, 62 Ark. App. 26, 966 S.W.2d 938(1998).
In Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608, (1997), the Arkansas Court of Appeals specifically held that the premises exception to the going and coming rule was eliminated for claims arising after the enactment of Act 796 of 1993. In reaching this holding, the Court stated:
The language of Ark. Code Ann. § 11-9-102 (5)(b)(3) excludes from being compensable injuries that occur "at a time when employment services are not being performed.
This provision seems clearly aimed at eliminating the premises exception to the going and coming rule since, under a strict construction of Ark. Code Ann. § 11-9-102(5)(b)(3), merely walking to and from one's car, even on the employer's premises, does not qualify as performing "employment services".
Without determining whether claimant's actions of acquiring a Grant from the Arkansas Game and Fish Commission to purchase an aquarium for the school and the assembly of the aquarium constitute employment services, it is my opinion that claimant's traveling to and from the school to accomplish this task does not fall within the employment services provision for a compensable injury. In reaching this finding, I cannot find that claimant's travel to the school to accomplish this task was a requirement of or an essential component of her employment, nor can I find that driving to school to work on the aquarium was an incidental activity which was inherently necessary for the performance of her primary activity to educate students. In traveling to the school that day, claimant's activities were just like the activities she engaged in every school day when she drove to school. Although claimant was driving to the front of the school where the aquarium was to be constructed, as opposed to the back of the school where teachers and faculty members usually park, the fact still remains that claimant's activities on that fatal Sunday are the same type of activities which all persons traveling upon the roads are exposed to, and which was not the type of activity which brought claimant's actions within the time and space boundaries of her employment.
In a similar case, the Full Commission recently found that an employee who was involved in a fatal automobile accident as he was traveling to work on a Monday morning was not performing employment services at the time of his accident. The facts inRonald Campbell v. Randal Tyler Ford Mercury, Inc., F.C. Opinion, July 9, 1999 ( E809862) are substantially similar to those in the present case. In Ronald Campbell, the claimant, a finance manager, had taken a contract home the previous Friday in order to finalize it with the customer over the weekend. An error was discovered on the contract, so it was not finalized. On the date of the accident the claimant was returning to his office to meet with other customers and to correct the error in the contract. Just prior to his accident claimant had placed a cellular phone call to his office advising that he was running late. The Full Commission reasoned that even though claimant had in his possession work materials and had placed a call to the office advising of his estimated arrival time, the claimant was merely traveling to work at the time of the accident and that employment services were not being performed. The claimant in Ronald Campbell was not required to transport documents at that particular time for execution. Moreover, it could be argued that placing a phone call to the office to advise the employer of one's schedule, while courteous, is not an essential component of one's employment.
Under the "going and coming" rule an employee is not within the course of his employment while traveling to or from work. Merely driving to and from one's place of employment whether to assemble an aquarium or to educate students, does not arise to the level of activities deemed inherently necessary to carry out the essential functions of claimant's job as an educator. In reaching this finding, I am cognizant of the facts in this case that claimant's husband testified that the fatal wreck occurred after claimant had gone home to call the Pet's Mart regarding missing pieces from the aquarium. However, the testimony regarding the availability of a phone is unclear. Claimant's husband testified that claimant came home to use the telephone. However, in my opinion, the record is equivocal with regard to whether claimant had access to a telephone on the school premises or not. The superintendent for the Cabot School District testified with regard to whether claimant had access to the telephones in the office:
It's possible because we have phones in the conference rooms in the wings, but Cindy would have known that more than I would, you know, if she told her family she had to go home to use the phone, then I'm sure that's correct.
Obviously, no one, not even the superintendent, wished to defame this well-liked teacher. In this regard, claimant's husband testified that claimant came home from the school to call Pet's Mart because she "didn't have access to a telephone at school." Claimant's husband, whom the evidence does not reflect ever went to the school with claimant, stated that claimant did not have access to a telephone. Yet, the superintendent for the Cabot Schools testified that telephones are available in the conference rooms regardless of whether or not the office phones were inaccessible. Nonetheless, even if claimant went home and made a phone call concerning the aquarium, I am unable to find that claimant's driving was an activity that was an incidental activity which was inherently necessary for the performance of her job duties. Whether claimant had access to a phone or whether she simply found it easier to make a long distance phone call from home will never be known. In order to determine exactly why claimant was on the road at the time of her accident we would have to resort to impermissible speculation and conjecture, or give the claimant the benefit of the doubt, neither of which are permitted.
The claimant in the present claim was driving to school after going home to make a phone call. In my opinion, returning to the school after going home does not elevate claimant's purpose upon the road to the level of employment services. Claimant was merely driving to or going to work.
This case is tragic, to say the least. But, when all emotion is removed, and we perform our duty as we are mandated to do by the General Assembly to strictly construe the provisions of Act 796, it is my opinion that the law leaves us little alternative but to find that claimant was not engaged in an activity carrying out the employer's purpose or advancing her employer's interest when her accident occurred. Claimant was merely driving to school when the fatal accident occurred. With the elimination of the premises exception through the requirement of employment services, I cannot find that claimant's death is compensable. Consequently, claimant's death resulted from an accident which is explicitly excluded from the definition of compensable injuries. Accordingly, I find that we must reverse the decision of the Administrative Law Judge.
Therefore, I respectfully dissent from the majority opinion.
______________________________ MIKE WILSON, Commissioner