Opinion
CLAIM NO. E509338
OPINION FILED DECEMBER 30, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by BEN E. RICE, Attorney at Law, Jacksonville, Arkansas.
Respondent represented by THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed
OPINION AND ORDER
Claimant appeals from a decision of the Administrative Law Judge filed March 28, 1997, finding that claimant failed to prove that he was performing employment services on June 26, 1995, when claimant fell. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof. Therefore, we affirm the Administrative Law Judge's decision.
The record reveals that on June 26, 1995, claimant tripped and fell as he was walking into his employer's premises to begin work on that date. Claimant testified that in the summertime he worked from 7:00 a.m. to 3:30 p.m. The accident occurred between 6:30 and 6:45 a.m. just as claimant was arriving to work and walking in the building. Normally, claimant would pick up a co-worker, Leonard Holder, on his way to work and the two would arrive together. However, on the morning of June 26, 1995, claimant advised Mr. Holder that he would be unable to pick Mr. Holder up since his truck was broken down. Claimant secured a ride to work with claimant's son. According to claimant's testimony, as soon as claimant arrived at work, he opened the door and noticed that the alarm had been disarmed. The record is clear that claimant was aware that Mr. Holder had arrived at work prior to claimant and that Mr. Holder was the one who disarmed the alarm.
Q. Now, just to make sure I'm clear, on direct, you said, when Mr. Rice was asking the questions, you said, that you knew Leonard was there because you looked up and saw the alarm system was disarmed?
A. Right.
Q. Now, in your statement to Ms. Smith, what you told her was you knew Leonard was there already, because the doors were opened. Is that right?
A. Well, yeah, that would be one and the alarm system, too.
This knowledge is also confirmed by claimant's testimony that as soon as he fell he advised his son to go find Mr. Holder and advise him of the injury.
Since this injury occurred on June 26, 1995, this claim is governed by the Workers' Compensation Law as amended by Act 796 of 1993. Ark. Code Ann. § 11-9-102(5)(B)(iii) states:
An injury is not compensable if it was inflicted upon the employee at a time when employment services are not being performed, or before the employee was hired or after the employment relationship was terminated.
This Commission and the Arkansas Court of Appeals have held that "An employee is performing employment services when he is engaging in an activity which carries out the employer's purpose or advances the employer's interest." Cheri Pettey v. Olsten Kimberly Quality Care, FC Opinion September 13, 1995 ( E405037), 328 Ark. 381, ___ S.W.2d ___ (1997). An employee carries out the employer's purpose or advances the employer's interest when he engages in the primary activity which he was hired to perform.Id; Kenneth Behr v. Universal Antenna, FC Opinion December 6, 1995 ( E408376); Patricia Turner v. Monroe Co., FC Opinion December 17, 1996 ( E512460). When an employee engages in incidental activities which are inherently necessary for performance of the primary employment activity, the employee carries out the employer's purpose or advances the employer's interest. Id.
In Leah Hightower v. Newark Public School System, 57 Ark. App. 159, ___ S.W.2d ___ (1997) the Arkansas Court of Appeals found that the employment services provision of Act 796 has eliminated the premises exception to the going and coming rule pursuant to the strict construction mandate. Accordingly, merely because claimant was on his employer's premises at the time an accident occurs does not mean that the accident is compensable. Claimant must prove by a preponderance of the evidence that he was performing employment services when the accident occurred. We cannot find that merely entering upon the premises of one's employer is sufficient enough to bring one within the employment services provision of the Act. Entering upon the premises, or departing therefrom, requires no more out of an employee than while the employee is traveling to the premises. Entering upon the premises does not advance the employer's interest or carry out the employer's purpose.
The claimant in Hightower, supra slipped on ice in her employer's parking lot, but did not fall. After entering the employer's building, the claimant bent over to sign in and upon raising felt immediate sharp pain in her back. The Court of Appeals affirmed our finding that the claimant in Hightower was not performing employment services at the time of her injury despite the fact that the injury was caused by the condition of her employer's premises while she was on her employer's premises. Likewise, in the present case, we cannot find that claimant was performing employment services at the time of his injury. We are not persuaded by claimant's argument that he was in the process of disarming the alarm system which is one of his inherent duties which must be performed prior to beginning his regular tasks for the day. As previously noted, claimant testified that he was well aware upon arriving at school that the alarm had been disarmed as soon as claimant walked into the building. Once the alarm had been disarmed, it was no longer claimant's job duty to disarm the alarm. Moreover, there is nothing in the record to indicate that claimant should have been concerned that the alarm had already been disarmed because claimant clearly testified that when he arrived at work, saw that the doors were open and the alarm had been disarmed, he knew that his co-worker, Mr. Holder, was already on the premises. Thus, it is clear that on this particular morning, claimant's first job duty was to strip the floors. At the time the accident occurred claimant had done no more than arrive at work. He was not performing his job duties and therefore not performing employment services.
Claimant was not on the clock at the time the accident occurred and there is nothing in the record to indicate that claimant was performing employment services at the time of his fall. The fall occurred before any work activity took place.
Accordingly, we find that claimant did not sustain a compensable injury since his injury was inflicted at a time when employment services were not being performed. Therefore, we affirm the decision of the Administrative Law Judge and deny and dismiss this claim.
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that claimant has failed to prove that he was performing employment services on June 26, 1995, when he fell on his employer's premises.
As an initial matter, it seems a bit ironic that our workers' compensation law has arrived at the point where it is necessary for a Full Commission opinion to state that "entering upon the premises does not advance the employers' interest or carry out the employers' purpose." (Majority opinion at page 4.) I would hazard to suggest that entering an employer's premises is very much necessary to advance the employer's interest or carry out the employer's purpose. Unfortunately, such a basic principle is evidently incompatible with the "employment services" doctrine.
With regard to the merits of this case, claimant's activities as a school custodian most likely covered a wide range of maintenance-type duties. He did testify, however, that his specific task on June 25, 1995, was to "strip floors." Still, I would submit that disarming the alarm system each morning was clearly a prerequisite to the performance of whatever "primary activity" claimant may have been assigned on a given day. Claimant could not have known that the alarm system had already been shut down on June 25 until he entered the building himself, and his obligation to do so (and to shut the alarm off if no one else had) placed him within the ambit of performing "employment services" of the "incidental" variety as contemplated by Petty. Accordingly, I would find that claimant was engaged in "employment services" at the time of his injury on June 25, 1995.
As set out above, I must respectfully dissent from the majority opinion.
PAT WEST HUMPHREY, Commissioner