Opinion
CLAIM NO. E707530
OPINION FILED SEPTEMBER 14, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILLIP WELLS, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the HONORABLE RICHARD LUSBY, Attorney at Law, Jonesboro, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on February 2, 1998. In that opinion and order, the administrative law judge found that the claimant sustained an injury arising out of and during the course of her employment with the respondent as a result of a specific incident that occurred on May 4, 1996. In addition, the administrative law judge found that the claimant has satisfied the notice requirements of Ark. Code Ann. § 11-9-701(a) (Repl. 1996).After conducting a de novo review of the entire record, we find that the claimant failed to establish that she was performing employment services at the time of the incident on May 4th, 1996. Therefore, we find that the decision of the administrative law judge that the claimant proved that she sustained a compensable injury must be reversed. Because we find that the claimant failed to establish that she sustained a compensable injury, we do not reach the respondents' alternative argument that the claimant has failed to provide adequate notice pursuant to Ark. Code Ann. § 11-9-701(a) (Repl. 1996).
The claimant was employed on the paint line in the respondents' plant where her job consisted of feeding parts onto the line or catching and stacking parts at the end of the line. On May 4, 1996, the claimant had climbed the stairs to the second floor of the respondents' plant for her lunch break. When the bell rang for the claimant to return to work, the claimant went to the restroom, then was headed back down the stairs holding the handrail proceeding to her work station when her foot slipped on a step.
The claimant asserts that she sustained a back injury as a result of the slip on the stairs at work, and the claimant asserts that this injury arose out of and during the course of her employment.
However, we find that this case is essentially indistinguishable from the Arkansas Court of Appeals' recent decision in Harding v. City of Texarkana, 62 Ark. App. ___, ___ S.W.2d ___ (May 27, 1998). In Harding, the claimant was employed by the city answering 911 emergency calls on the third floor of the Bi-State Justice Building in Texarkana. In that case, the claimant traveled by elevator to the first floor of the building on her way to a smoking area, when she tripped over a rolled-up carpet and was injured. In assessing the "employee services" issue, the Court analyzed the case as follows:
Act 796 of 1993, which applies to all injuries occurring after July 1, 1993, requires the courts to construe its provisions strictly. Arkansas Code Annotated § 11-9-102(5)(b)(iii) (Supp. 1997), which is part of Act 796 of 1993, 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." 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. See Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).
Appellant argues, on public policy grounds, that her break advanced her employer's interest by allowing her to relax, which in turn helped her to work more efficiently through the rest of her work shift. We are not unsympathetic to this argument. Under former law, the definition of compensable injury did not include a strict requirement that the injury occur while the worker was performing employment services, and a claimant's activities at the moment of injury were relevant only to the separate and broader question of whether the injury arose out of and in the course of the employment. See id. It is clear that, under former law, appellant's injury while en route to the break area would have been in the course of her employment pursuant to the personal comfort doctrine. See Lytle v. Arkansas Trucking Services, 54 Ark. App. 73, 923 S.W.2d 292 (1996). It may be true that the interests of both workers and employers would be better served by a more uniform 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 appellant's break may have indirectly advanced her employer's interest, it was not inherently necessary for the performance of the job she was hired to do. Consequently, we hold that the Commission did not err in finding that appellant was not performing employment services when she was injured.
The only potentially distinguishing fact between the Harding case and the present case is that, in the Harding case the tripping incident occurred while the employee was on her way to a break, whereas, in the present case, the claimant's slip on the stairs occurred while the claimant was walking back from her lunch break. However, we do not perceive any basis to conclude from the Court's analysis in Harding that an employee under the present circumstances would be performing "employment services" while returning from a break when the Court has already concluded that an employee is not performing employment services when an employee is on their way to a break. Therefore, we find that the claimant has failed to establish that she was performing employment services, as required by Act 796 of 1993, at the time that she sustained an alleged back injury on May 4, 1996. Therefore, we find that the decision of the administrative law judge must be reversed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.