Opinion
CLAIM NO. E213143
OPINION FILED AUGUST 8, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant Ann Lepard, mother of dependent child, represented by the HONORABLE MIKE ETOCH and LOUIS ETOCH, Attorneys at Law, Helena, Arkansas.
Claimant Pam Lepard, Widow of deceased employee, represented by the HONORABLE ANTHONY SHERMAN, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE MICHAEL R. MAYTON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on September 7, 1993. In that opinion and order, the administrative law judge found that the claimant's death arose out of and in the course of his employment.
Donald Ray Lepard was killed in a tragic accident on July 17, 1992, when the truck he was driving was struck by a train. The respondent employer's business is located in West Memphis, and the decedent lived in Marion. He had gotten off work, and he was traveling to his home in Marion at the time of the accident. In fact, the accident occurred only three blocks from his home in Marion, and his wife heard the collision from their home. However, the truck that the decedent was driving was owned by the respondent employer, and the claimants contend that the going and coming rule does not bar this claim because the respondent employer furnished the claimant's transportation. In addition, after the claimant left the respondent employer's shop that day, he delivered a paycheck to a co-employee, and the claimants contend that this furthered the interests of the employer. Based on these contentions, the claimants assert that the dual purpose doctrine is applicable to this claim.
However, after conducting a de novo review of the entire record, we find that the claimants failed to prove by a preponderance of the evidence that either of these exceptions to the going and coming rule are applicable to this claim. In addition, we find that the preponderance of the evidence establishes that the going and coming rule bars the claim. Consequently, we find that the administrative law judge's decision must be reversed.
For an employee's death to be compensable under the Arkansas Workers' Compensation Law, it must result from an injury "arising out of and in the course of employment." Ark. Code Ann. § 11-9-401 (1987). The phrase "`[a]rising out of the employment' refers to the origin or cause of the accident," so it must be shown that a causal connection exists between the injury and his employment. Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). An injury occurs "in the course of employment" when it occurs "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." City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987). As a general rule, injuries sustained while an employee is going or coming from work are not compensable. Fisher v. Proksch, 20 Ark. App. 80, 723 S.W.2d 852 (1987); City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 852 (1982). Such injuries are not deemed to arise out of and in the course of employment.Mason v. Lauck, 232 Ark. App. 891, 340 S.W.2d 575 (1960);American Red Cross v. Hogan, 13 Ark. App. 194, 681 S.W.2d 417 (1985). The rationale for the going and coming rule is based on the fact that all persons, including employees, are subject to the recognized hazards of travel to and from work. City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982). When traveling to and from the regular place of employment, the employee is not exposed to risks attributable to the employment. Instead, the employee is only exposed to risks which are common to all members of the general public.
However, there are a number of exceptions to the going and coming rule, and one of these exceptions permits a finding of compensability where the employer furnishes transportation to and from work as an incident of the employment. See, e.g., Arkansas Power Light Co. v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958); Chicot Memorial Hospital v. Veazey, 9 Ark. App. 18, 652 S.W.2d 631 (1983). The rationale for this exception is that the journey itself becomes an inherent part of the service because the employer's interests are somehow furthered by the travel, making the travel a substantial part of the services rendered. Cox, supra; Veazey, supra. Consequently, the exception is only applicable where there is a connection, or nexus, between the travel and the employment. Rankin v. Rankin Construction Co., 12 Ark. App. 1, 669 S.W.2d 911 (1984); Veazey, supra. In determining whether there is such a nexus, the existence of a benefit to the employer is an important element. City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987). Consequently, even when the accident occurs in a vehicle furnished by the employer, the injury is not compensable unless the travel somehow carries out the employer's purpose, or advances the employer's interests, either directly or indirectly, and the injury is not compensable if the vehicle is being used at the time of the injury for purposes purely personal to the employee. Howard v. Arkansas Power Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987).
In the present claim, the evidence does not show that the respondent employer gained any benefit or that its interests were furthered by the decedent's use of the truck to travel to and from work. Instead, the preponderance of the evidence indicates that the respondent employer gratuitously allowed the claimant to use the truck solely to accommodate and benefit the claimant. The decedent had worked for the respondent employer on several occasions, and he had worked for the respondent employer several months during the last period of employment. However, the respondent employer had never furnished a vehicle to the decedent until one to two months before the accident. The decedent and his wife only owned one vehicle. The claimant was required to report to work at 6:00 a.m., and his wife had recently begun working at a job which necessitated her use of their only vehicle to report to work at 4:00 a.m. They had three children living in their home, and these work schedules and transportation limitations created problems providing proper care for the children. As a result of these problems, a complaint was filed against the decedent and his wife for the failure to provide the children with proper care.
As a result of these problems, the decedent approached William Johnson with a proposal for his use of the vehicle to travel to and from work. According to William Johnson, owner of the respondent company, the decedent offered to keep the truck clean and serviced and to put $25.00 worth of gas in it each week in return for his use of the truck to travel to and from work. This amount of gas was intended to equate the amount that would be used traveling to and from work. Mr. Johnson testified that the company did not receive any benefit whatsoever from the decedent's use of the truck, and he testified that he allowed the claimant to use the truck solely as a favor to the claimant to help him overcome his problems. He also testified that the decedent did not begin performing his work duties until he arrived at the respondent employer's shop, although on rare occasions he may have called on a customer prior to going to work. The decedent's wife also testified that she understood that the reason Mr. Johnson allowed the decedent to use the truck was to ease the problems caused by their transportation limitations.
In short, the preponderance of the evidence establishes that the decedent approached Mr. Johnson and proposed his use of the truck to travel to and from work. In addition, the preponderance of the evidence establishes that Mr. Johnson gratuitously agreed to allow the claimant to use the truck to help him overcome the problems that the transportation limitations were causing. Furthermore, the preponderance of the evidence establishes that the respondent employer did not receive any benefit whatsoever from the decedent's use of the truck to travel to and from work. Consequently, the preponderance of the evidence establishes that the decedent's use of the truck to travel to and from work was purely personal to himself. Therefore, we find that the claimants failed to prove by a preponderance of the evidence that the going and coming rule does not bar this claim because the respondent employer furnished the decedent's transportation.
We also find that the claimants failed to prove that the dual purpose doctrine is applicable to this claim. Under the dual purpose doctrine, an injury is within the course of employment if it is sustained during a trip which serves both a business and a personal purpose, if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey. Martin v. Lavender Radio Supply, 228 Ark. 85, 305 S.W.2d 845 (1957);Rankin v. Rankin Construction Co., 12 Ark. App. 1, 669 S.W.2d 911 (1984). In determining whether the doctrine is applicable, the Arkansas Courts have accepted the following test which was first enunciated by Judge Cardozo in Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929):
the decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to the perils. . . . We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause.
In the present case, Ms. Julie Smirt was a co-employee of the respondent employer, and she is Mr. Johnson's daughter. Ms. Smirt testified that the decedent called her as he was leaving the shop and offered to bring her paycheck to her. She informed him that she was getting out later and that she would get it then. However, she testified that the decedent told her that he would bring it to her anyway. Ms. Smirt and Mr. Johnson both testified that delivering was not one of the claimant's duties and that they were not aware of him ever delivering a paycheck before. Mr. Johnson testified that he did not instruct the decedent to deliver that paycheck and that he had never instructed the decedent to deliver a paycheck. Ms. Smirt testified that she thought the decedent offered to deliver the check as a friend, and she testified that she did not think he did so for the business. Mr. Johnson testified that the decedent would not have been compensated for the time involved in delivering the check. Ms. Smirt testified that she and her husband were friends with the decedent, and she testified that he visited with them approximately fifteen minutes when he delivered the check.
In short, the preponderance of the evidence establishes that the decedent delivered the check as a personal gesture of friendliness. Furthermore, the preponderance of the evidence establishes that the decedent did not deliver the check because of the employment. Moreover, even if he did deliver the check because of his employment, we would find that decedent had departed from the course of his employment and that he was simply engaged in the journey home at the time of the accident. As discussed, the accident occurred only three blocks from his home. Also, although Ms. Smirt's house is not directly on the decedent's way home, he had to journey from West Memphis to Marion to get home, and he had embarked on that journey at the time of the accident. Although his widow testified that he would not have come home across the railroad crossing if he had come directly from the shop, she also testified that this was one of several routes from West Memphis to Marion, and she testified it was a direct route to West Memphis. In addition, she testified that the decedent had used that route before. Consequently, we find that the dual purpose doctrine does not prevent the going and coming rule from barring this claim.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that a preponderance of the evidence establishes that the fatal accident occurred as the decedent was traveling home from work, and we find that the claimants failed to prove by a preponderance of the evidence that any exception to the going and coming rule prevents the rule from barring this claim. Therefore, we find that the preponderance of the evidence establishes that this claim is barred by the going and coming rule. Consequently, we find that the administrative law judge's decision must be reversed. This claim is hereby denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.