Opinion
CLAIM NO. E712387
OPINION FILED MAY 12, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by STEPHEN CRANE, Attorney at Law, Magnolia, Arkansas.
Respondents represented by MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] This claim was submitted to the Administrative Law Judge on briefs and stipulations. The Administrative Law Judge found that the claimant was performing employment services for White Oak Package Store at the time of his death and therefore he suffered a compensable injury. Respondent has appealed from the order below.The only issue on appeal is whether or not this claim is barred by the employment services exception to the definition of a compensable injury, (A.C.A. § 11-9-102 (5)(B)(iii)). It is respondent's position that the claimant did not know he was about to be robbed, therefore claimant was not performing employment services at the time of his murder and his injury is not compensable. Claimant's dependents contend that he was doing his employer's bidding at the time of the assault and the assault was causally related to his employment, therefore this is a compensable injury.
On September 30, 1997, four men conspired to rob the White Oak Package Store. One of those men, Brad Scott, had worked there previously and was familiar with the money handling practices employed by respondent. The four men arrived at the store via automobile at approximately 9:30 p.m. Shortly thereafter one of the men, Richard Hill, entered the store but was startled by a barking dog, left the store and returned to the waiting car. The other men were hiding outside the store. The claimant and his co-worker, Bobbie Jean Gates walked outside and saw the suspicious vehicle. They then reentered the store and hid the money as they prepared to leave for the night. As Claimant was locking the door Hill tried to reenter the store and was told by the claimant that he had "waited too long". Hill then retrieved a shotgun from the other men. Gates and the claimant got in their vehicles and began to leave the premises. Hill began to approach claimant's vehicle, discharged the shotgun into claimant's vehicle and killed him.
Ark. Code Ann. § 11-9-102(5)(B)(iii) (Supp. 1997) excludes from the definition of compensable injury any injury "which was inflicted upon the employee at a time when employment services were not being performed." The courts have held that an employee was performing "employment services" when he "was engaging in an activity that carried out the employer's purpose or advanced the employer's interests." Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). See also Shults v. Pulaski County Special School District, 63 Ark. App. 171, 976 S.W.2d 339 (1998). Based upon an impartial review of the stipulated facts, without giving the benefit of the doubt to either party we find that claimant was advancing his employer's interest at the time of his murder. This is an objective standard and it is irrelevant whether or not it was claimant's intent to foil the robbery, as he did, by attempting to leave before he could be compelled to reenter the store.
The claimant's job duties included securing the money and premises of his employer at the close of business each day. Toward that end claimant was entrusted with a key to the premises. We find that to accomplish this task it is inherently necessary that claimant lock up the premises and leave, taking the key with him. It is important for the advancement of his employers interest that claimant leave, and take the key with him, in order to avoid being forced to reopen the store by a robber and surrender the money. This is of course is exactly the scenario that led to Mr. Oglesby's death.
It cannot reasonably be disputed that respondent's interest was advanced when the thieves were foiled in their attempt to steal the liquor store receipts. The robbery took place on a Tuesday. Since the robbers were aware that deposits were only made on Friday and that on other days the respondent's money was hidden in the store at closing we know that they did not expect that claimant would be in possession of respondent's money when he left the store that night. The robbers were in need of at least $300 to make their planned escape to Minnesota. Based upon the amount of money needed and the robbers failure to look for the money on claimant after they shot him we conclude that the robbers intended to force claimant to reenter the liquor store and give them the hidden money. This is also the only explanation that is consistent with the mutually stipulated facts that; 1) the attempted robbery was for the purpose of robbing the liquor store, 2) claimant died as a result of the gunshot wounds suffered from the attempted robbery, 3) claimant attempted to leave the parking lot at which time he was shot, 4) claimant was not robbed after he was murdered and 5) one robber claimed to have knowledge from previous work experience that there was cash in the liquor store. Had it been the assailants' intention to rob the claimant they could easily have done so after his death. Because they were no longer able to compel the claimant to unlock the liquor store they fled without respondent's money.
The stipulations also contain statements which the robbers gave after their arrest. These statements contain additional evidence of their plan to rob the liquor store. Brad Scott stated that "Nobody got any money cause the door was locked . . . Our plan was to rob the store and run off with the money." Richard Hill informed the police that "We were trying to rob this place to get money to get back to Minnesota." The statement of DeShawn Sims contains the following exchange in response to a question from a State Police Investigator; "Q. Whose idea was this to do this, to rob this man? A. Rob the liquor store?" Darrell Easter gave the following explanation of their intent; "We went to the liquor store with the intent to rob it but the store was closed and it ended up in a murder. Brad, Shorty, and DeShawn went up to the store with the intent to rob it. We were robbing the store just for the money."
The intent of the robbers was to rob the liquor store. They sought the money which they knew was hidden in the liquor store. By carrying a key, locking up for respondent and attempting to leave the scene of the robbery claimant foiled the attempted robbery and substantially advanced his employer's interest in not being robbed. Accordingly claimant's death occurred while he was performing employment services and it is therefore compensable.
Respondent is directed to comply with the award set forth in 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00.
IT IS SO ORDERED.
_______________________________
CONCURRING OPINION
[15] I concur in the principal opinion's findings and write separately to express my thoughts on the relevance of the fact that the claimant was shot in the parking lot and not inside the store itself. Citing Hightower v. Newark Public Schools, 57 Ark. App. 159, 943 S.W. 608 (1997), the respondents state in their brief on appeal that:
[M]erely walking to and from one's car, even on the employer's premises, does not qualify as performing employment services. Therefore, an employee who is actually in his car and leaving the premises has even a weaker case than the employee standing in the parking lot.
While I agree with the respondents' assertion that the act of merely walking to or from one's car on the employer's premises, by itself, does not qualify as performing employment services, I also note that this general statement of the holding in Hightower is not sufficient to end our inquiry regarding injuries sustained outside a building and on a lot. For example, in Nathan Thompson, Jr. v. Cavanaugh Motors, Full Workers' Compensation Commission Opinion, September 11, 1996 ( E505961), the claimant was employed by the respondent employer as a used car salesman when he slipped on some loose gravel and lost his balance, sustaining a knee injury, while walking on the lot to assist customers. Although the respondent contended that the claimant was not engaged in "employment services" at the time of the incident, the Commission found that the claimant was performing employment services at the time of the incident because the act of walking across the parking lot to meet with customers was an essential incident of his employment as a car salesman. Likewise, in Crossett School District v. Fulton, 64 Ark. App. ___, ___ S.W.2d ___ (January 27, 1999), the claimant, a certified teacher, slipped on ice and broke her leg in the school's parking lot while walking from her car to the building after retrieving her glasses from her car. The Court found that the claimant was performing employment services at the time of her injury in the parking lot, and that this situation was distinguishable fromHightower, where the teacher in Fulton had already reported to work, had already supervised children, had been given an assignment that required her to use her glasses after reporting to the librarian, and was injured in an effort to complete her assignment.
The Court of Appeals has held that an employee performs "employment services" when he engages in an activity that carries out the employer's purpose or advances the employer's interests.See, Shults v. Pulaski County Special School District, 63 Ark. App. 171, 976 S.W.2d 339 (1998).
In the present case, the claimant was shot in his truck on the premises by one of four co-conspirators who had admittedly been "casing out" the liquor store to commit robberybefore the claimant locked the door and attempted to leave. The claimant was required to secure the premises and take the store key with him when he intended to leave the premises. Securing the premises was certainly an activity which advanced the employer's interests, and under the circumstances of this case, the risk of the armed robbery which ultimately occurred, and during which the claimant was killed, was a risk incidental to the claimant's employment services in securing the premises, and not a risk personal to the claimant. Under these circumstances, I find the circumstances of the injury which occurred on the respondent's parking lot analogous to the circumstances in Fulton and distinguishable from the circumstances in Hightower.
In reaching my decision, I note that the dissent suggests that the only reason set forth in the record for the claimant's shooting was found in a statement by Richard Hill, one of the conspirators. The dissenting Commissioner argues that, as he reviews the stipulated record, there is no evidence that the claimant was performing employment services when he was shot because there is no evidence that the claimant was shot in order to get money from the claimant. The dissent even suggests that the stipulated record stands for the dissent's proposition that the robbers were after the claimant's personal money, rather than the store's money, at the time the claimant was shot.
I respectfully point out to the dissent that the dissent's theory as to "what happened" is directly contrary to the parties' "stipulated facts" on which this case was presented to the Commission. Contrary to the dissent's theory, the parties have stipulated that (1) the claimant died as a result of gunshot wounds from the attempted robbery and that (2) the attempted robbery was planned for and for the purpose of robbing the liquor store. Specifically, stipulations 17 and 19 state in their entirety:
17. That Kenneth Oglesby was shot in the back through the rear window of his truck by Richard Hill with a shotgun on the parking lot of the White Oak Liquor Store, managed to drive his vehicle off the parking lot, crashed into an oak tree and died as a result of the gunshot wounds suffered from the attempted robbery.
19. That the attempted robbery was planned for and for the purpose of robbing the liquor store in order to get money for the four individuals to leave Arkansas and go back to Minnesota.
In my opinion the parties could not have been any more clear in stipulating to the purpose of the attempted robbery in which the claimant was killed, and the parties have informed the Commission that the purpose of the attempted robbery was to robthe liquor store, and not to rob the claimant as the dissent now suggests.
Specifically, the dissent seeks to place significant weight in the following statement made by Richard Hill, after Hill had shot the claimant, regarding comments that Brad Scott, a co-conspirator, had made to Hill before the shooting:
We were trying to rob this place to get money to get back to Minnesota. We wanted to leave tonight. I didn't know the gun was loaded. I was going to scare him and just tell him to give me some money cause we just needed some bus tickets.
Brad told me he was supposed to be the one that had the money. Brad said he used to work there. Brad said they don't make no drops until Friday and he said the old boy was rich and wasn't going to miss the money. We was going to get like $300.00 to take us to Minnesota.
The dissent construes this testimony as indicating that the claimant, and not the store owner, was "the old boy [who] was rich and wasn't going to miss the money". However, as I consider this testimony in context, I point out that Brad Scott testified in Stipulation No. 5 that the plan was to rob the store (not the claimant). Likewise, Stipulation No. 7 states that Esbaum Sims gave the following relevant statement:
Q. Whose idea was this to do this, to rob this man?
A. Rob the liquor store?
Q. Yes.
A. I guess it was my brother, Brad and Shorty. Brad knew where the safe was and how to open the cash register. I think he knew the safe combination. [Emphasis added].
Similarly, Stipulation No. 8 states that Darrell Easter stated "Brad, Shorty and DeShaun went up to the store with the intent to rob it. We were robbing the store just for the money." [Emphasis added]. The parties also agreed in Stipulation No. 11 that Brad Scott claimed to have knowledge from previous work experience that there was cash in the liquor store. In my opinion, all of these stipulations and statements indicate that the conspirators intended to rob the store, and were not intending to rob the decedent of his personal money, when the robbers approached the claimant's truck.
In reaching this conclusion, I note that even Richard Hill's statement indicates that there were no "drops" made until Friday, and the term "drops" certainly appears to be referring to thestore's deposit and not the claimant's personal money.
Finally, I note that Stipulation No. 1 states that the deceased claimant was an employee (not the store owner), and Stipulation No. 4 states that the deceasedemployee was survived by his wife and one child born June 20, 1984, and that both the wife and child were dependent upon the deceased employee for their support and well-being (indicating that the claimant had no ownership interest in the store). Based on these statements and stipulations, I understand Richard Hill's reference to Brad Short's pre-robbery statement that "the old boy was rich and wasn't going to miss the money" to be a statement regarding the store owner, not the deceased employee.
Therefore, on this stipulated record, and for the reasons discussed herein, I find that the decision of the administrative law judge must be affirmed.
__________________________ ELDON F. COFFMAN, Chairman
DISSENTING OPINION
[31] I respectfully dissent from the majority opinion finding that claimant's dependents have demonstrated by a preponderance of the evidence that the deceased sustained a compensable injury under the requirements of Ark. Code Ann. § 11-9-102(5)(a) (Repl. 1996). Based upon my de novo review of the entire record, I find that claimant's dependents have failed to prove that claimant sustained an injury at a time when employment services were being performed.This is a tragic case involving the unnecessary murder of claimant. However, when all sympathy is removed from consideration, I find that claimant's dependents are not entitled to workers' compensation benefits. This outcome may be harsh, but in my opinion it is the appropriate legal outcome.
Ark. Code Ann. § 11-9-102 (5)(B)(iii) (Supp. 1997), excludes from the definition of compensable injury any injury "which was inflicted upon the employee at a time when employment services were not being performed." Through a long line of Full Commission, Court of Appeals, and Supreme Court opinions, it has been determined that an employee is performing employment services "when he is engaged in the primary activity that he was hired to perform, or in incidental activities that are inherently necessary for the performance of the primary activity."Harding v. City of Texarkana, 62 Ark. App. 137, ___ S.W.2d ___ (1998); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997): In determining whether an employee was performing employment services at the time the injury was inflicted, we are admonished by Act 796 of 1993, to strictly construe its provisions. Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996).
In Hightower v. Newark Public School Systems, 57 Ark. App. 159, 943 S.W.2d 608 (1997), the Arkansas Court of Appeals addressed the premises exception to the going and coming rule which, prior to Act 796, allowed a finding of compensability if an injury was sustained while the employee was on the employer's premises or on nearby property under the employer's control. The court in Hightower reiterated:
The language of Ark. Code Ann. § 11-9-102(5)(B)(iii) excludes from being compensable injuries that occur "at a time when employment services were 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)(iii), merely walking to and from one's car, even on the employer's premises, does not qualify as performing "employment services.
The evidence in the present case reveals that four (4) men approached the respondents' place of business with the intent of robbing it. One man had actually entered the premises on at least one (1), and, possibly, two (2) occasions, but failed to carry through with the intended robbery for one reason or another. Prior to closing the store, the claimant and his co-worker hid the money in the store, as was their usual practice, exited the building and locked it. In the process of locking the building, one of the intended robbers apparently approached the claimant and his co-worker and the claimant advised him "You've waited too long." After claimant locked the building, got in his personal vehicle, started the vehicle, and began to drive off, one of the intended robbers ran after the vehicle and shot the claimant. The only reason set forth in the record for the shooting is found in the statement of Richard Hill given to Investigator Sligh. In this statement, Hill stated:
We waited a couple of minutes and went over there again and the dude was getting in the car and pulling off. I was running towards him, I slowed down, my finger hit the trigger, I didn't know it was already cocked back, and then it shot. We left, I dropped the gun and we just left. When I fired the gun the others were coming in from behind me. I got the gun from DeShawn.
We were trying to rob this place to get money to get back to Minnesota. We wanted to leave tonight. I didn't know the gun was loaded. I was going to scare him and just tell him to give me some money `cause we just needed some bus tickets.
Brad told me he was supposed to be the one that had the money. Brad said he used to work there. Brad said they don't make no drops until Friday and he said the old boy was rich and wasn't going to miss the money. We was going to get like $300.00 to take us to Minnesota.
As I review the stipulated record, there is no evidence that claimant was shot while performing employment services. Taking the statements of the only eyewitness and of the intended robbers as true, the shooter was running after claimant, but there is no evidence that claimant was shot in order to get money from the claimant. Furthermore, there is no evidence that claimant was attempting to allude the robbers. This fact is evident in claimant's statement to the robbers. "You've waited too long" may be interpreted in either of two ways. Either claimant did not perceive a threat from these men and just believed them to be patrons who got there after the liquor store was closed; or if they were potentially robbers, he simply informed them that they waited too long since he did not have any money on him. In either case, the comment, "You've waited too long," does not infer that he was afraid of these men and needed to leave with the key in order to protect the store.
Moreover, the shooter explained that it was his understanding that the store did not drop the money until Friday. Since this injury occurred on September 30, 1997, which was a Tuesday, I cannot find that the shooter expected to find store money on the claimant, and was intending to rob the claimant of the store's money. The shooter's comment that the claimant was the one with the money, that "the old boy was rich and wasn't going to miss the money" also fails to convey an understanding that the shooter was after the liquor store's money and not claimant's personal money. When these comments are read together with the shooter's understanding that drops were made only on Fridays, they imply that the shooter was not after the store's money at this point, but rather claimant's personal money. Whether the shooter's understanding was, in fact, true is immaterial.
As I review the majority opinion, it is evident that it found this claim compensable only after speculating as to claimant's actions and the shooter's intent. Conjecture and speculations, even if plausible, cannot take the place of proof.Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Strictly construing the Act, it is clear to me that claimant was not performing employment services at the time of the injury. The stipulated facts reveal that the claimant had ceased his employment, locked the door, closed the business for the evening, and was in his personal truck in the process of leaving the premises when he was killed. There is no evidence that claimant was killed because the shooter wanted to force the claimant to open the store, nor is there any evidence that claimant was trying to leave before he would be forced to open the store. To reach a finding on these assumptions would be wrong.
It simply appears that this was a freak accident in which claimant was shot because he was at the wrong place at the wrong time. While not specifically couching its findings on public policy grounds, it appears that the majority opinion does just that. Claimant was an employee of a liquor store which was the subject of an intended robbery. After closing the store and departing the premises, the would-be robbers either intentionally, or accidentally, murdered the claimant. Be that as it may, it is not our position, as an administrative body, to declare public policy. It is our job to apply the law, specifically Act 796 of 1993, to the facts in this case. The facts in this case, in my opinion, do not support compensability. As noted by the Court of Appeals in Harding v. City of Texarkana, supra:
It may be true that the interest of both workers and employers will be better served by more uniformed application of an administrative remedy than they would be by the uncertainty inherent in a tort claim based on premises liability. Nevertheless, the Legislature, rather than the courts, is empowered to declare public policy, Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997), and whether a law is good or bad, wise or unwise, is a question for the Legislature, rather than the courts. Longstreth v. Cook, 215 Ark. 72, 220 S.W.2d 433 (1949).
In the present case, Act 796 of 1993, applies and, although our sympathy should be extended to claimant's dependents, applying the law strictly, I cannot find that claimant was performing employment services which directly or indirectly advanced his employer's interests, or was engaged in activities inherently necessary for the performance of his job when he was so tragically killed. Therefore, I must respectfully dissent from the majority opinion.
______________________________ MIKE WILSON, Commissioner