Opinion
CLAIM NO. F012576
OPINION FILED FEBRUARY 28, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE KENNETH E. BUCKNER, Attorney at Law, Pine Bluff, Arkansas.
Respondents represented by the HONORABLE WILLIAM M. BRIDGFORTH, Attorney at Law, Pine Bluff, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondent appeals from a decision by the Administrative Law Judge finding that the claimant had proved by a preponderance of the evidence that she sustained a compensable back injury on October 2, 2000. In his opinion, the Administrative Law Judge wrote, "It is obvious from the claimant's testimony that she was within the course and scope of her employment when she fell." The respondent asserts that the evidence reflects that the claimant was not performing employment services at the time of her injury, and sets forth that the sole issue on appeal is:
Whether an employee is performing "employment services" as contemplated in A.C.A. § 11-9- 102(4)(B)(iii) when they are injured while on their way to start working for the day when they have not yet reached their work station nor performed any of their employment duties?
After conducting a de novo review of the entire record, and for the reasons discussed herein, we affirm the decision of the Administrative Law Judge.
The claimant works in the Neurology Department at Jefferson Regional Medical Center. On October 2, 2000, she arrived at the hospital at approximately 6:45 to 7:00 a.m. She entered the hospital through an employee only door, clocked in, unlocked the door to the Neurology Department, and walked several steps into the office when she slipped. She could not recall if she turned on the lights or if they were already on. She stated that she was approximately four to five feet inside the door of the Neurology Department when she slipped.
The Neurology Department employees are on the clock all day, no matter what they are doing, except for 30 minutes that is automatically subtracted for lunch. The claimant was the first employee there that morning. It was the department policy that at least one employee should be there in the morning no later than 7:30. That person's duties include unlocking the office, turning on the computer and other office machines, checking to see if there are any patients in the waiting room, checking the fax machine, and writing the schedule for the day into a journal. The claimant testified that the first thing she normally does when she is the early person is to turn on the computer and take the out-patient list off of the fax machine. On the date in question, she was approximately 10 feet from the computer and fax machine when she fell. She stated that her work area at the Neurology Department was the whole area and that she did not have a specific desk or location where she worked.
On cross-examination, the claimant admitted that during her deposition, in response to a question about what she was doing at the time she fell, her response was, "I never made it to start the day." She stated that she had not started any of the duties that she normally does once she gets into work. All of the things that she does, turning on the computer, turning on the lights, checking the fax machine, none of that had been done before she fell.
Another witness at the hearing was Annette Smith, who was also employed in the Neurology Department. She was the second person at work on October 2, 2000, and arrived sometime between 7:45 and 8:00 in the morning. Ms. Smith testified that from where the claimant fell, it was 20 steps to get to the office machines that the early person had to turn on. She testified that walking to the machines and turning them on would be a regular part of the job. After turning the computer and other office machines on, the early person would walk another 10 to 15 steps and unlock the front door of the office. Ms. Smith described their office area: the Neurology Department is on the first/main floor of the hospital; their office is in the shape of a long, narrow "T" with the top of the "T" being their work areas; to enter their office, the employees enter the hospital through a back door near the shipping department; from where they enter and clock in, it is 80 to 100 steps to the door of their office; once inside, to the right of the door there are files, to the left there are supplies and a table and chairs and refrigerator where they have their lunch, then there is a smaller odd-shaped room where there is a cabinet for flammable materials; once you pass through that is where the computer is, and then a few more steps is the office area. The files and equipment in the hallway on the way to the computers and front of their office are accessible and used by the people in their office on a daily basis. On cross-examination, Ms. Smith was asked,
Q. Regardless of the distance between the door and what you said to where she works, she had not made it to where she works at the time she fell according to what she told you, correct?
A. She had made it into the doorway that we have to come in to get in the office.
Q. Right, but had not yet made it to the area where she works?
A. No, sir.
On re-direct examination, Ms. Smith discussed what the claimant's work area is. She testified that:
A. The filing, the computer, the desk and the machines that she does her tests on. It is a whole office area.
Q. From door to door?
A. Basically, yes.
Based on these facts, the Administrative law judge found that the claimant was performing employment services at the time of her injury. The respondent appeals and contends that this finding is contrary to law. In his opinion, the Administrative law judge analogizes the facts of this case to the facts of two other recent opinions. In Shults v. Pulaski County School District, 63 Ark. App. 171, 976 S.W.2d 399 (1998), Shults was a school custodian who was awarded benefits for injuries he sustained to his knee. Upon arriving at work and entering the school building, Shults' first duty of the day was normally to turn off the alarm system. On the day of his injury, Shults entered the building and saw that the alarm system was already disarmed. He started running into the building and then he fell. The Arkansas Court of Appeals reversed the Commission and found that Shults was performing a duty for his employer at the time. The Court of Appeals explained:
In denying appellant's claim, the Commission stated that merely entering upon the premises of one's employer was not sufficient to bring one within the employment services provision of Act 796. Although that is a correct statement of the law, we disagree that appellant was "merely entering upon" the employer's premises. Upon appellant's arrival at Tolleson Elementary School, his first duty as building custodian was to check the alarm system. We believe this duty was an activity that carried out the employer's purpose or advanced the employer's interest, and therefore constitutes employment services.
Likewise, in Mcguire v. Area Agency on Aging, Full Arkansas Workers' Compensation Commission, Opinion Filed April 22, 2001 (W.C.C. File No. F000105), Mcguire had reported to work shortly before the scheduled time of 8:00 a.m. She signed in as required on the third floor and while she was climbing the stairs to her office on the fourth floor, she tripped and fell. In that case, a majority of the Full Commission determined that the claimant's injury was within the course and scope of her employment services, explaining:
Claimant testified that at the time of her injury, she had already signed in and had picked up her patient files and other work-related materials. Based on claimant's testimony and the objective evidence of a sign-in sheet, we find that claimant's sustained injury while en route to her office was within the course and scope of her employment services.
More recently, in Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001), the claimant appealed the Commission's denial of benefits for alleged injuries suffered when the claimant fell while returning to her work station after a trip to the restroom. The claimant argued that the Commission erroneously interpreted Act 796 of 1993 in determining that she was not performing "employment services" at the time of her injuries. The Court of Appeals held that substantial evidence did not support our finding that the claimant was not performing employment services when she slipped and fell. The Court of Appeals listed several factors which may be relevant in determining whether an employee was performing employment services at the time of his injury. These include:
(1) Whether the accident occurs at a time, place, or under circumstances that facilitate or advance the employer's interests;
(2) Whether the accident occurs when the employee is engaged in activity necessarily required in order to perform work;
(3) Whether the activity engaged in when the accident occurs is an expected part of the employment;
(4) Whether the activity constitutes an interruption or departure, known by or permitted by the employer, either temporally or spatially;
(5) Whether the employee is compensated during the time that the activity occurs;
(6) Whether the employer expects the worker to cease or return from permitted non-work activity in order to advance some employment objective.
The respondent and the dissent assert that since the claimant had not begun to perform her job duties of turning on the computers and the fax machines, she had not yet begun performing employment services and is therefore not entitled to compensation benefits. This argument is without merit, however, under the circumstances of this case. The claimant had been instructed by the employer to arrive early to get her department ready for patients. The claimant had already clocked in and was being paid when she unlocked the back door or the employees' door to the neurology department. The claimant cannot remember whether the lights were turned on or whether she turned them on, but be that as it may, she made sure the lights were on before proceeding toward the computers and fax machines when she slipped and fell on this route. All these activities were performed after she had clocked in, carried out the employer's purpose, and advanced the employer's interests, and therefore constituted employment services. The claimant had done much more than merely enter the employer's premises at the time of her injury. She had performed job duties of unlocking the back door and ensuring that the lights were on, and was proceeding on a direct route to turn on the computers and other equipment necessary to begin the operation. Therefore, we find that claimant was performing employment services at the time of her injury, and the opinion of the Administrative Law Judge must be, and hereby is, affirmed.
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 Administrative Law Judge's decision in accordance with Ark. Code Ann.§ 11-9-809 (Supp. 2001).
For prevailing on this appeal before the Full Commission, the claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Supp. 2001).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion.
The present case is distinguishable from both Shults v. Pulaski County School District, 63 Ark. App. 171, 976 S.W.2d 399 (1998), and McGuire v. Area Agency on Aging, Full Arkansas Workers' Compensation Commission, Opinion Filed April 22, 2001 (W.C.C. File No. F000105). In Shults, the custodian had already began performing his work duties when he fell. He had checked the alarm system and noticed it was disarmed. He fell in the course of running to investigate the situation. He was performing a duty that promoted his employer's interest, therefore his injury was compensable. In McGuire, the claimant had picked up her patient files and work-related materials. This activity placed her within the course and scope of her employment, and her injury was compensable. In the present case, when the claimant was injured, she had not yet done any activity that promoted her employer's interest or began any of her work-related activities.
The facts of this case are more similar to those of Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). In that case, Ms. Hightower was injured while she was on her employer's premises, in the parking lot, but before she had arrived at her work area. The Arkansas Court of Appeals reviewed the Hightower ruling in its opinion in Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001), and clarified that the injury in that case was not compensable because Hightower was injured, "before she began her employment services that day." The claimant's own testimony in this case was that she "never made it to start the day" before she was injured. Although she was on her employer's premises, she had not arrived at the area of the office where she was to perform her primary duties that morning; she had not turned on the computer, checked the fax, or checked for patients in the waiting room. Merely being on the premises of the employer does not equate to performing employment services. I would find that the opinion of the Administrative Law Judge should be reversed, because the claimant's injury did not occur within the course and scope of her employment and is, therefore, not compensable. Therefore, I respectfully dissent from the majority opinion.
_____________________________ MIKE WILSON, Commissioner