Opinion
CLAIM NO. E709723
OPINION FILED JUNE 9, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE KENNETH KIEKLAK, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE NATHAN C. CULP, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] The respondents appeal an Administrative Law Judge's opinion filed January 7, 1998. The Administrative Law Judge found that the claimant proved that she suffered a compensable injury while employed by respondents; that the claimant is entitled to temporary disability benefits; and that the respondents are liable for all reasonable and necessary medical treatment provided in connection with the claimant's compensable injury. After reviewing the entire record de novo, we find that the claimant was not performing employment services at the time of the alleged injury. We therefore reverse the decision of the Administrative Law Judge.The parties stipulated that the employee-employer relationship existed on April 17, 1997. The claimant, age 59, was employed as a food worker for the respondent-employer. In addition to two unpaid, uninterrupted, one-half hour meal breaks, the claimant was given a fifteen minute break in the morning and a fifteen minute break in the afternoon. Respondents paid the claimant during the two fifteen-minute breaks. Even though the claimant might be on one of these fifteen-minute breaks, the employer still required her to assist student diners, if needed. The claimant might not receive the entire allocated time for break. The claimant estimated that a diner would approach her for assistance two to three times weekly during her break time. Claimant testified that "the students come first." The claimant's supervisor confirmed that there were instances when employees had to return to their workstations before the break was over. Claimant described the alleged injury at hearing:
Q. Gudrun, would you please explain to the judge what occurred on April the 17th of 1997?
A. It was around 1 o'clock. My main cook told us to take a break and I went out in the dining room. Not more than half a minute and I went to line 5, tried to get me an apple. And all of the sudden, I landed on the floor and my leg was twisted, my hip was hurting real bad and I was afraid from that type of pain. And I looked down and I thought, "What in the world happened to me?" Because it went so fast, I didn't even know what had went on. And I saw that it was a strip about this big where I slipped in some white salad dressing.
The claimant testified that she fell on her left side and felt acute pain in her left hip. An ambulance transported her to Washington Regional Emergency Room, where an x-ray of the claimant's pelvis and hips was taken. According to the x-ray report, bilateral degenerative joint changes were noted mildly at the sacroiliac joints, more prominent on the right. The resulting impression was mild bilateral sacroiliac joint degenerative change, no evidence of an acute fracture or dislocation.
Dr. Sam Turner began treating the claimant on April 23, 1997. Dr. Turner reported that the claimant had been in physical therapy for her injury and had been administered steroids, but she had not improved. Dr. Turner assessed low back pain with some associated left leg pain, slip and fall, question sciatica vs. pinched nerve or other. No objective findings were noted, such as swelling or spasm. Dr. Turner continued physical therapy with medication. On April 30, 1997, a claims manager with Public Employee Claims Division, Arkansas Insurance Department, informed the claimant that her claim had been denied. The claimant was told that it was apparent that her injury did not arise out of or in the course of performing employment-related duties.
On May 5, 1997, Dr. Turner opined that the claimant could return to work, although the record does not indicate she had previously been taken off work. On May 7, 1997, the claims manager advised the claimant that workers' compensation would pay for ambulance charges regarding the incident; however, any other charges resulting from the incident would not be covered. By May 21, 1997, the claimant's condition had not improved. Dr. Turner assessed continued low back pain/strain, left leg pain/strain. Dr. Turner also directed that the claimant undergo a MRI of the lumbar spine. Dr. Danna Grear gave the following impression of the lumbar MRI, taken June 10, 1997:
Minimal disc bulging at L4-5.
Mild disc bulging at L-5/S-1 with no focal disc herniation identified.
Facet arthrography bilaterally at L-5/S-1.
Dr. Turner referred the claimant to a neurologist, Dr. Steven Moon. Dr. Moon corresponded on June 20, 1997:
I saw Gudrun Ray in the office today. She is a 57 year old righthanded female with a history of intermittent left hip and low back pain which sometimes radiates into her left posterior thigh. Her neurologic examination today is nonlocalizing.
The MRI scan of her lumbar spine reveals some mild concentric annular disc bulge at L4-5 and L5-S1 but without impingement upon neural elements. She likely has an intermittent lumbosacral strain symptoms which was likely exacerbated somewhat with her fall, but I find no evidence of permanent neurologic impairment at this point.
I think she needs to continue on with the physical therapy low back program she was given and avoid doing a lot of heavy lifting, particularly over forty or fifty pounds, utilizing proper lifting technique. She could use anti-inflammatories on a prn basis. I have not scheduled her for definite follow up, but could re-evaluate her if the need arises.
On July 10, 1997, Dr. Turner noted that the claimant had returned to work and was doing well with an increased effort, but she had experienced a recurrence of back pain, which radiated down her left leg. Dr. Turner assessed back pain with musculoskeletal strain, question recurrence with overuse injury. He advised the claimant to return to light duty for two weeks, continue medication, return in two weeks for recheck.
The claimant filed a workers' compensation claim, contending that she sustained an injury to her lower back and left hip in the course and scope of her employment. Claimant asserted entitlement to temporary total disability, related medical, and an attorney's fee. The respondents contended that the claimant's injury did not occur at a time when employment services were being performed. After a hearing, the Administrative Law Judge found that the claimant was performing employment services when she fell, and that the claimant consequently sustained a compensable injury. We disagree and reverse.
The claimant maintains that she sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence. Therefore, she must satisfy the following requirements of Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1997):
(1) proof by a preponderance of the evidence of an injury arising out of and in the course of her employment (see, Ark. Code Ann. § 11-9-102(5) (A)(i) (Repl. 1997); Ark. Code Ann. § 11-9-102(5) (E)(i) (Repl. 1997); see also, Ark. Code Ann. § 11-9-401(a)(1) (Repl. 1997);
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death (see, Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1997);
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury (see, Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1997);
(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence (see, Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1997).
If the claimant fails to establish, by a preponderance of the evidence, any of these requirements, she fails to establish compensability of the claim. We must then deny compensation.Jerry D. Reed v. Con Agra Frozen Foods, Full Workers' Compensation Commission, opinion filed Feb. 2, 1995 ( E317744).
The respondents contend that the claimant was not performing employment services at the time of her alleged injury. Ark. Code Ann. § 11-9-102(5)(A) (Repl. 1997) defines "compensable injury" as "an accidental injury causing internal or external physical harm . . . arising out of and in the course of employment." 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. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 381 (1997), citing Pilgrim's Pride Corp. v. Caldarera, 54 Ark. App. 92, 923 S.W.2d 290 (1996).
The respondents declare to the Full Commission that the claimant is not performing an employment activity when she is on break, whether or not she is being paid. Respondents cite Jackson v. Arkansas D.H.S., Full Workers' Compensation Commission, opinion filed May 12, 1995 ( E319835). In Jackson, we reversed an Administrative Law Judge's decision that found the claimant proved that she sustained an injury arising out of and in the course of her employment. The claimant slipped and fell while attending a potluck given by her employer. The potluck was held on respondent's premises during lunch time, but attendance was voluntary. The claimant contended that she was performing employment services at the time of the incident, because she was susceptible to telephone calls until the very moment she began eating. The Commission disagreed:
In this case, claimant was waiting in line for food. She was not walking to a telephone to conduct business or conducting any business activity when she fell. Once claimant left her desk and began to actively participate in the potluck, by lining up with other employees, she was on her lunch break and was no longer performing an "employment activity." The activity claimant was involved in during her lunch break bore no relationship to her employment and was not an event sponsored or planned by the respondent.
Compare, Harding v. City of Texarkana, ___ Ark. App. ___, ___ S.W.2d ___ (Opinion filed May 27, 1998).
Claimant urges the Commission to distinguish the Jackson case, which she says "vastly differs" from the within matter. InJackson, attendance at the potluck was completely voluntary. In the instant matter, the claimant was "induced" to stay on premises. The claimant's supervisor testified:
Q. Do you as management or representing the employer consider this to be a benefit to the University of Arkansas?
A. One of the reasons that we provide food with no cost is because we want our employees to be there and not leave the premises in case we need them back. That's one of the reasons that we do provide free meals for our staff.
We are mandated to strictly construe the provisions of Act 796 of 1993. See, Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1997). This strict construction mandate includes our determination of what constitutes "employment services." An employee is performing employment services when she is engaged in activity which carries out the employer's purpose or advances the employer's interest.Olsten Kimberly Quality Care v. Pettey, supra. We recognize that the claimant was on a paid break and was "induced" to remain on her employer's premises when the alleged injury occurred. Nevertheless, the claimant was reaching for an apple for personal consumption when the mishap took place. The claimant was not assisting student diners or otherwise benefitting the employer. Because the claimant was not performing employment services, she failed to prove, by a preponderance of the evidence, that she sustained an injury arising out of and in the course of her employment. Consequently, we must deny this claim.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant was not performing employment services at the time of the alleged injury. We reverse the decision of the Administrative Law Judge finding compensability, entitlement to temporary disability benefits, and reasonable and necessary medical treatment. We respectfully deny and dismiss this claim.
IT IS SO ORDERED.
DISSENTING OPINION
[21] I must respectfully dissent from the opinion of the majority holding that claimant was not performing employment services at the time of her accident.The majority opinion cites Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 381 (1997), for the appropriate test for resolving this issue. Relying on the court's decision in Pilgrims Pride Corp. v. Caldarera, 54 Ark. App. 92, 923 S.W.2d 290 (1996), The Petty Court explained that "the test for determining whether an 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." I have no quarrel with the appellate authority upon which the majority relies. However, I do find the application of the test erroneous.
Claimant worked in food service for this employer. She slipped and fell as she attempted to get an apple during a scheduled break. No charge is assessed for food consumed by employees. Respondent's witness, Ms. Carol Godfrey, Assistant Director for Dining Services, testified that one of the reasons meals are provided at no charge is so employees will remain on the premises during breaks. By remaining on the premises, the staff may accommodate students requiring assistance. Respondent employer's expectation was that staff would provide help to students on an as-needed basis. Indeed, Ms. Godfrey testified that she would be perturbed by an employee's unwillingness to assist a student during a scheduled break. Claimant's testimony revealed that in addition to interruptions by students during breaks, which occurred two to three times weekly, breaks were also cut short on occasion at the employer's request. Employees for respondent employer take their breaks in the student dining room; therefore, they are easily accessible to student diners.
Having employees at the beck and call of students and staff members during scheduled breaks clearly advances the interests of respondent employer, including the promotion of good will between staff and students. Thus, it is axiomatic that an employee's refusal to assist a student during a break would be detrimental to respondent employer's interests.
The majority opinion relies on Jackson v. Arkansas D.H.S., Full Commission Opinion filed May 12, 1995 ( E319835) to support its conclusion that claimant was not performing employment services at the time of her injury. Counsel for claimant argues that Jackson is distinguishable. I agree. In Jackson, the potluck which claimant attended occurred in a designated break room. Moreover, employees were not expected to take calls during lunch. Also, the food for the potluck lunch was not provided by respondent employer.
In my opinion, the facts of this case fall within the parameters of Caldarera and Pettey; therefore, I find that claimant has established that she was performing employment services at the time of her injury.
For the foregoing reasons, I respectfully dissent.
PAT WEST HUMPHREY, Commissioner