Opinion
CLAIM NO. F501422
OPINION FILED SEPTEMBER 20, 2006
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by Honorable Philip M. Wilson, Attorney at Law, Little Rock, Arkansas.
Respondent represented by Honorable Chris Bradley, Attorney at Law, North Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
On February 23, 2006, an Administrative Law Judge issued a decision finding that the claimant was acting in the course and scope of employment at the time of her injury, and that consequently, her injuries were compensable. He also directed the respondents to pay medical expenses. The respondents now appeal the finding that the claimant was acting in the course and scope of employment at the time of her injury.
The facts in the present case are relatively undisputed. The claimant worked as a police officer for the respondents for a period of approximately three years. The claimant was injured when she slipped and fell on ice in the respondents' parking lot on December 26, 2004.
The claimant usually performed her duties in an assigned patrol car. She and other officers that lived in town were allowed to keep patrol cars at their homes. Two officers lived out of town and were not given the same privilege. The claimant had a set schedule, however, she, as all other officers, were on call 24/7 pursuant to the respondents' handbook. Officers were given the discretion to dress at home or to change at the police station. Chief Chad Mulligan, the claimant's supervisor, testified that the two officers that worked out of town dressed at the station. However, the rest of the other workers lived in town and usually dressed at home. He explained that it made sense for the officers that lived in town to dress at home as they could go "on duty" immediately after they got in their patrol car. Mulligan further testified that the officers were not considered to be on duty unless they were dressed in uniform. He also indicated that policy largely indicated that officers were prohibited from driving their patrol cars unless they were on duty. He testified that workers were required to be in their uniform if they were in the patrol cars and on duty.
The claimant testified that she usually dressed at home and that her patrol car was kept at home. She would usually dress in her uniform and then as soon as she got in her car she would radio in that she was on duty. She testified,
Q. Okay. Now then, could you tell us your normal day-to-day procedure when you had this — on regular days — when you had this Friday, Saturday, Sunday routine. Would you wear your uniform to work or would you go to the police station and put it on?
A. I would get ready from home, get my patrol uniform home, check 10-8 on duty from the car at home, leave my driveway, and go to work.
Q. Okay, now, you say you go to work. People like me and Mr. Bradley, we get in the car and we drive to a building and go in a building and go to work. Is that what you mean by go to work?
A. On occasion, I mean, it's not an every day routine that I would — I don't have a routine as soon as I check on duty. If I need to go by the police station to pick up paperwork, I would. If I needed to pick up a radio or pick up warrants, go to my locker, I would. If I did not, I would get on the streets for 30 minutes to an hour and then go to the Police Department. If I needed information, I'd go by the Police Department. If not, I would hit the streets first, because I have worked weekends, therefore, I hit the streets first because it's a busy — weekends are normally busier than a weekday. I would hit the streets first and then go by the Police Department.
The claimant had a poor driving record and a history of having multiple wrecks. In fact, the claimant had been reprimanded for damaging her patrol car. As a result, the other officers, including Mulligan, would tease her about her ability to drive. The week of the claimant's injury there was inclement weather. All of the patrol cars were not equipped with studs, and therefore were unsafe to drive in the icy conditions. Accordingly, Mulligan instructed the officers to make sure that if a vehicle with studs was available, they were to retrieve it before going on duty.
Mulligan denied having a conversation with the claimant where she requested studs and testified that she could have had studs put on her vehicle without his permission. Yet he also testified that he was responsible for approving all modifications and expenses to the patrol cars. He indicated,
Q. I heard that, but they're bright, too. Just out of curiosity, how many sets of studded tires does the Police Department have?
A. That I wouldn't know. Our Street Department takes care of that.
Q. The Street Department's budget — do they pay for the State's, I mean for the City's maintenance on the vehicles?
A. They do all the purchasing and everything. Any maintenance that's done on our patrol cars would come out of my budget.
Q. Okay, but you don't remember how many sets of tires that you had authorized?
A. No, sir. Actually, our Mayor pretty much handles our budget. I just have to get things approved for purchasing and what's anything to do with vehicle parts or maintenance, our Street Department Foreman gets those approved.
The claimant and her husband, Brian Watson, testified that the day before Christmas, the claimant went to the police station to pick up her check and to inquire about having studs put on her patrol car. Both testified that the claimant was teased about her past driving record and that she was told she could not have studs. They also testified that Mulligan told the claimant to keep her patrol car parked at her home until the icy road conditions had passed. Mulligan neither confirmed nor denied the conversation, instead indicating that he did not recall if the conversation occurred or not. However, he did admit that he had instructed workers to drive in vehicles with studs if they were available and admitted that the claimant's patrol car was not equipped with studs.
The claimant testified that she was scheduled to work at 10:00 p.m. on December 26, 2004. As she had been instructed to use a vehicle with studs, she dressed in her uniform, got her police department duffel bag, and then proceeded to go to the Police Department in her personal vehicle so she could get a car with studs. She testified that she left her house around 12 minutes until her scheduled shift time and that she arrived at the station around two minutes later. The claimant did not report for duty during her drive because she did not have a radio allowing her to report for duty and because she was not in a patrol car. The claimant said that when she arrived at the station, she got out of her car and slipped and fell on ice. She called for help and was taken to the hospital by ambulance. As a result of the claimant's fall she sustained various minor injuries.
The sole issue on appeal is whether the claimant was acting in the course and scope of employment at the time of her fall. After a de novo review of the record, we find that the claimant's injuries occurred during the course and scope of employment. The claimant was instructed not to drive a vehicle without studs, thus requiring her to go to the police station prior to her shift. It is clear that this action was required in order to serve the interests of the employer by making sure their employees were driving in safe vehicles. While the claimant was not yet, "on the clock", it is clear that she was subject to being "on call" at any moment and was acting in a manner to serve the employer's best interests. It is also evident that her actions were due to her attempting to perform her duties. As such, she should not be precluded from receiving benefits due to the "going and coming" rule. Likewise, it is clear that she was acting at the employers bequest and in a manner to advance their interests. Accordingly, we affirm the decision of the Administrative Law Judge finding that the claimant was acting in the course and scope of employment and awarding medical benefits.
Arkansas Code Annotated § 11-9-102(4)(B)(iii) provides that an injury is not compensable if the injury was sustained during a time in which employment services were not being performed. An employee is performing employment services when he or she is doing something that is generally required by his employer.Collins v. Excel Spec. Products, 347 Ark. 811, 69 S.W.3d 14 (2002). The test of determining whether an injury occurred during employment services is the same test that is used for determining if an injury occurred out of and in the course and scope of employment. The test is whether the injury occurred within the time and space boundaries of employment when the employee was carrying out the employer's purpose or advancing the employer's interest either directly or indirectly. Foster v. Express Personnel Services, ___ Ark App. ___ S.W. 2d ___ (05-602, 1-4-06), citing, Collins, supra, also citing White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W. 3d 98 (1999);Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). The going and coming rule ordinarily precludes recovery for and injury sustained while an employee is going or returning from work. Moncus v. Billingsley Logging, ___ Ark. App. ___, ___ S.W. 2d ___, (05-1353, 5-18-06). One exception to the rule is in the instance that an employee must travel from jobsite to jobsite, whether or not he is paid for travel time.Pettey, See, supra.
In the present case, we find that the claimant was performing employment services at the time of her injury. It is clear that the claimant was subject to being "on call" 24 hours a day. The claimant credibly testified that she was asked to try to obtain a car with studs before beginning her shift. This testimony was corroborated by Mulligan, who also indicated that the request was made for the purpose of ensuring safety. While it is clear that the claimant was unable to respond to a call for officer assistance while driving to the station, it is still clear that but for the request that she use a vehicle with studs, she would likely have gone immediately, "on call" at her house rather than traveling to the station. Furthermore, it is clear that the claimant left her house and traveled to the station in just enough time to go to the station and find a car with studs in accordance with her supervisor's request. Finally, we note that the claimant was dressed in uniform and had her necessary equipment which illustrates that her only reason for going to the station before going "on duty" was to get in an vehicle with studs.
The respondents attempt to assert that Mulligan did not tell the claimant to drive her personal vehicle to work. We first note that Mulligan admitted that he instructed the claimant that she was to find a vehicle with studs. We also note the credible testimony of the claimant and her husband regarding Mulligan's instructions to leave her patrol car parked. Furthermore, we simply find it implausible that the claimant would risk wrecking her personal vehicle when she could use the respondents' vehicle to get to the station. We also find that it is of no consequence which vehicle she drove to work. The critical issue should instead be what activity the claimant was engaging in at the time of her injury. We note that Mulligan testified that it would have been appropriate for the claimant to drive her patrol car to work, which indicates that the claimant acted in accordance with Mulligan's wishes by reporting to the station. As it is clear that the claimant was instructed to attempt to drive a vehicle that had studs and she was attempting to comply with that directive at the time of her injury, she was acting in the course and scope of her employment and her claim is compensable.
In our opinion, this case is analogous to the case of Moncus v. Billingsley Logging American Insurance, See, supra. InMoncus, the claimant worked as a logger. The workers were usually familiar with the area they had been working in and usually drove their company vehicles directly from their home to the work site. However, on the day of the claimant's injury, the claimant and other workers were instructed to meet at a central location and follow their supervisor. This was an unusual situation and only occurred four to five times a year. The claimant had received permission to use his personal vehicle because he planned to leave work early that day. The workers met pursuant to the supervisor's directions. However, before the claimant arrived at the job site, he was in a collision that caused his death. Id.
The Supreme Court of Arkansas found that the claimant was performing employment services at the time of his injury and that the claim was compensable. In making this determination they opined,
In cases of this type, where the injury occurs outside of the time and space boundaries of employment, the critical determination to be made is whether the employee was directly or indirectly advancing the interests of the employer at the time of the injury. The "going and coming" rule is best viewed as an analytical tool to be used in making this determination. Our last consideration of the "going and coming rule" in Petty, supra., indicates that the rule is subordinate to the preeminent consideration, which is whether the employee was directly or indirectly advancing the interests of the employer at the time of the injury. If injuries sustained while traveling to and from work are found to be not compensable in a particular case, that finding should reflect a determination that the travel was not directly or indirectly furthering the interests of the employer. To the extent that the "going and coming rule" prevents recovery for injuries sustained while the employee was furthering the interests of the employer, it is overruled.
The Court went on to note that the claimant was acting at the instruction of the employer and that he was therefore advancing their interests. They further reasoned that even though the claimant was not performing his primary activity of felling trees he was fulfilling a duty required by the employer, and therefore performing employment services. Id.
The present case is similar to the case of Moncus, in several respects. First, it is clear that in both instances the employers' instructions dictated that the claimants comply with their orders outside their usual scheduled time. These instructions also dictated the actions of the claimants and the reason for them being where they were at the time of the injury. Just as in Moncus, the claimant in the present instance was exposed to unusual circumstances (poor road conditions) that caused a change in her actions. As a result of these special circumstances, the claimant in the present case had to arrive at the police station early in order to find a car with studs, whereas she usually could have gone "on duty" at her exact scheduled time and at her home. Just as the claimant in Moncus, the claimant in the present case was at the police station as a direct result of Mulligan's request. The claimant's compliance with that request fulfilled a duty placed on the claimant by the employer. Likewise, the claimant in the present case arrived at the station because she was advancing interest of the employer by obtaining a vehicle that was safer because it was equipped with studs. Another similarity is seen between the present case andMoncus, in that in both instances the employees had not actually arrived at their work sites. However, despite the fact that the workers were not being compensated for that action, they were still acting at the request of the employer and carrying out actions that directly advanced the employers' interests.
We also find that this case is similar to the case of Caffey v. Sanyo Mfg. Corp., 85 Ark. App. 342, 154 S.W. 3d 274, (2004). In Caffey, the claimant worked as a factory worker. She used a time clock and was not paid until 7:30 a.m., which was the time her line began production. The claimant was required to report to show identification at a guard shack before parking their vehicles. She was required to show a badge again at a guard shack before entering the plant. At the time of her injury, the claimant had entered the building and was going to the time clock. She fell approximately five feet before she got to the clock. Id.
In finding the claimant sustained a compensable injury that was sustained while performing employment services, the Court of Appeals reasoned that the claimant was required to perform the tasks of showing identification and clocking in before she was paid. However, despite the fact the claimant was not paid for these services, the claimant's actions were required by the employer and advanced their interests. The Court further opined,
The testimony demonstrates that appellant arrived in sufficient time to perform the identification procedure and clock in although she was not paid for her compliance. We do not, however, view payment of for these services as determinative of employment services. Appellants actions were not only required by appellee, but the acts also advanced appellee's interest.
Id.
The present case is similar in that just as in Caffey, the claimant in the present case was instructed to obtain a car with studs if possible. The claimant arrived at the police station in just enough time to comply with that directive. Despite the fact that she was technically not on duty and that she was not being paid at the time of her injury, she was directly advancing the employers' interest and therefore performing employment services.
We also note that in addition to Caffey and Moncus, the Courts have repeatedly ruled for the claimant in instances where they were not "on the clock", but were acting on behalf of the employer's interest. See, Wal-Mart Stores, Inc., v. Sands, 80 Ark. App. 51, 91 S.W. 3d 93, (finding that a worker injured while attempting to comply with a security measure imposed by the respondent and returning from break was performing employment services). See also; Wallace v. West Fraser South, Inc., ___ Ark. ___ S.W.2d (05-254, 1-26-06) (finding that a claimant that was merely returning from an authorized on-site break and injured while returning to work was acting in the course and scope of employment). See also; Scultz v. Pulaski County Sp. School Dist., 63 Ark. App. 171, 976 S.W. 2d 399, (finding that a claimant who worked as a custodian and was required to disarm the alarm system and tripped and was injured while entering the building to see if he needed to perform that duty was performing employment services). See also; Foster, supra, (finding that a worker that was injured while obtaining work papers and walking to her desk was performing employment services).
The respondents rely on the cases of Srebalus v. Rose Care, Inc., 69 Ark. App. 142, 10 S.W. 3d 112 and Michael Farler v. City of Cabot and Arkansas Municipal League, ___ Ark. App. ___, ___ S.W. 3d ___ (2006), in arguing that the claimant was not performing employment services at the time of her injury. We find both cases are distinguishable from the present case.
In Srebalus, the claimant worked at a nursing home. The claimant was on her way to work and while in the respondents' parking lot, she stepped into a pothole and injured her left knee and ankle. In considering the claim, the Court noted that under the rationale of Hightower v. Newark Public System, 57 Ark. App. 159, 943 S.W.2d 608 (1997), they could not find that the circuit court erred in finding that the claimant had not sustained a workers' compensation injury.
The respondent argues that pursuant to the rationale ofSrebalus, the claimant in the present case was not performing employment services. They further assert that the case is similar because in both Srebalus and the present case, the claimant was merely reporting to work as she usually would. They argue that pursuant to this reasoning, the claimant in the present instance should be precluded from receiving benefits.
We find this case to be distinguishable from Srebalus for several reasons. First and foremost, we note that in the present case the claimant was not merely reporting to work as usual. The evidence is clear that the claimant's job required her to drive a vehicle and that but for the bad weather, the claimant would have used the patrol car at her house and reported to work immediately at her scheduled time. Additionally, but for Mulligan's request for her to obtain a car with studs, the claimant had no need to be at the station at the time of her injury. The claimant and Mulligan testified that the claimant would usually report directly from her driveway in her patrol car. Likewise, there is no dispute that the claimant would be unable to use her car to perform patrol duties. Accordingly, the only logical explanation for the claimant's arrival at the station in her uniform, driving her personal vehicle, was so that she could attempt to get a car with studs. Thus, her arrival at the station was as a direct result of the employer's instructions and was designed to advance their interests.
The respondents next rely on the case of Campbell v. Randal Tyler Ford Mercury, 70 Ark. App. 35, 13 S.W. 3d 916 (2000). In that case, the claimant worked as a finance manager. He used a company vehicle and his duties often entailed working off-site at his home. The weekend before his injury, the claimant worked on a purchase contract. On the date of his injury and death, the claimant was traveling to work as he ordinarily would. He was involved in a collision and was killed. Id. The Commission entered a decision denying benefits, reasoning that the claimant was not employed as a courier and that at the time of his death, he was merely reporting to work as he usually would. The Court of Appeals affirmed the Commission's decision to deny benefits.
Just as in Srebalus, in the aforementioned case, we note that the workers were merely reporting to work as they did any other day when they were injured. In both cases there is no evidence that either employee reported at work at an unusual time or that they deviated from their usual behavior on the date they were injured. However, as we have previously discussed, the claimant in the present case was only reporting to the station because of the unusual weather and due to Mulligan's orders. The respondents attempt to assert that the claimant was not using any of her work equipment and that accordingly she was not performing employment services. In our opinion, this argument is disingenuous since the claimant's job required her to drive around town and patrol and since she was simply following orders regarding how to achieve this task on the date in question.
Finally, the respondents rely on the case of Michael Farler v. City of Cabot. In that case, the claimant worked as an operator at a water treatment plant. The claimant was given pay for being on call and was subject to serve at the notice of his employer. However, the claimant was reporting to the plant for work on a Tuesday morning as he would any other day and was injured. The Court of Appeals denied the claim. In denying the claim, they noted the claimant's admission that he usually reported to the plant prior to commencing his duties each day. Id.
Just as in Srebalus and Campbell, the claimant in Farler was doing nothing other than reporting to work as he would on any other day. There was no deviation in his behavior in reporting to work and he had no unusual reason for reporting to the plant as he did that morning. Furthermore, he was not "on call" or subject to providing services during that drive. In the present case however, the only plausible explanation for the claimant's arrival at the station was to advance the employer's interest by providing safety to the officers and the department's property.
Ultimately, we find that the evidence is clear that the claimant was performing employment services. But for the poor weather, the claimant would have reported to work directly from home. In fact, it is apparent that one reason for allowing workers that lived in town to keep patrol cars at their homes was to allow them to go "on duty" quicker and without having to report to the station first. The claimant responded to management's request that workers drive vehicles that had studs. Regardless of which vehicle she used, it is clear that the claimant in the present case was attempting to comply with that directive. In fact, since the claimant was driving her personal vehicle and was dressed in full uniform with her police equipment, the only logical explanation for her reporting to the station would be to get a car with studs.
As such, pursuant to the language of Moncus, we find that regardless of the "going and coming" rule, the preeminent consideration is not whether the employee was on his or her way to work. Instead it is whether the worker was advancing the employer's interests at the time of the injury. Additionally, we find that while the claimant was not engaged in her primary duty of serving and protecting the public, she was still performing employment services in that she was following a directive of the employer designed to protect employees and others from accidents due to poor road conditions, thereby directly advancing the respondents' interest. Accordingly we affirm the Administrative Law Judge's February 23, 2006 decision.
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 (Repl. 2002).
Since the claimant's injury occurred after July 1, 2001, the claimant's attorney's fee is governed by the provisions of Ark. Code Ann. § 11-9-715 as amended by Act 1281 of 2001. Compare Ark. Code Ann. § 11-8-715 (Repl. 1996) with Ark. Code Ann. § 11-9-715 (2002). For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $500.00 in accordance with Ark. Code. Ann. § 11-9-715(b) (Repl. 2002).
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that the claimant has proven by a preponderance of the evidence that she sustained a compensable injury on December 26, 2004, while in the course and scope of her employment. My carefully conducted de novo review of this claim in its entirety reveals that the clamant was not acting within the course and scope of her employment when she slipped and fell on December 26, 2004, in the parking lot of the Pocahontas Police Department (Department), sustaining minor injuries. Therefore, I find that the compensability of this claim, along with all related benefits, should be denied.
Ark. Code Ann. § 11-9-102(4)(A)(i), defines compensable injury as an accidental injury causing internal or external physical harm to the body arising out of and in the course of employment. See also, Campbell (deceased) v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000). However, a compensable injury does not include an injury inflicted upon the employee at a time when employment services were not being performed. Ark. Code Ann. § 11-9-102(4)(B)(iii). The Arkansas Court of Appeals has stated that the same test to determine whether an employee was "acting within the course an scope of employment" is used to determine whether an employee was performing "employment services". Smith v. City of Ft. Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004); citing, Daniels v. Arkansas Waffles, Inc., 83 Ark. App. 106, 117 S.W.3d 653 (2003). The Supreme Court has held that an employee is performing "employment services" when he or she is doing something that is generally required by the employer. White v. Georgia Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). The test for determining whether an employee was acting in the course and scope of employment at the time of his injury requires that the injury occur within the time and space boundaries of his employment while he is carrying out the employer's purpose or advancing the employer's interests directly or indirectly.Foster v. Express Personnel Services, ___ Ark. App. ___, ___ S.W.3d ___ (CA 05-602, January 14, 2006); citing, Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). An employee is generally said not to be acting within the course and scope of employment when he is traveling to and from the workplace, the rationale being that an employee is not within the course and scope of his employment while traveling to and from his job. Pettey, supra.
Whether a worker was performing employment services within the course of employment depends on the particular facts and circumstances of each case. The controlling test is whether the employee is engaged in the primary activity that she was hired to perform, or in incidental activities that are inherently necessary for the performance of the primary activity. Matlock v. Arkansas Blue Cross and Blue Shield, 74 Ark. Ain pp. 322, 49 S.W.3d 126 (2001).
In the case at hand, the claimant contends that she was providing employment services on the night of December 26, 2004, when she slipped and fell in the parking lot at work. In support of this contention, the claimant asserts that she was in full uniform and in the process of transferring her work related materials to a patrol unit with studded tires, per the instructions of her supervisor, when her accident occurred. In addition, the claimant was on the respondent employer's premises at the time. Therefore, the claimant submits that "without a doubt", her injury occurred within the time and space boundaries of her employment, while she was carrying out the employer's purpose and advancing the employer's interest, directly or indirectly. See, Foster v. Express Personnel Services, ___ Ark. App. ___, ___ S.W.3d ___ (CA 05-602, January 14, 2006).
However, a review of case law interpreting the relevant statutes applicable to this claim reveal that the claimant was not performing employment services nor acting within the course and scope of her employment when the incident of December 26, 2004, occurred. For example, in Campbell (deceased) v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000), the employee, Ronald Campbell, died in an automobile accident while he was traveling to work. Mr. Campbell was the appellee's (an automobile dealership), finance manager, whose duties often entailed working off-site, including at his home. Mr. Campbell used a company vehicle for company business. On the morning of his demise, Mr. Campbell left for work in his company uniform, driving his company car, taking his cellular phone, and some paperwork associated with a purchase contract he had been working on over the previous weekend. The fatal car crash occurred on Mr. Campbell's normal route to work.
In denying the compensability of Mr. Campbell's claim, thereby reversing the decision of the Administrative Law Judge, the Commission found . . .
In our opinion, claimant's traveling to and from work does not elevate claimant's activities to the level of activities which carry out the employer's purpose or advances [sic] the employer's interests. Clamant was not employed as a courier to transport documents.
The Commission further reasoned that working at home on sales contracts was a routine part of the claimant's responsibilities as finance manager for his employer. Therefore, it was immaterial whether he had been working at home over the weekend, and had a contract with him at the time of his accident, as Mr. Campbell was "clearly not working on a sales contract at the time of his injury". The Court of Appeals agreed with the Commission.
Likewise, in Srebalus v. Rose Care, Inc., 69 Ark. App. 142, 10 S.W.3d 112 (2000), the employee, Marian Sreba'us was walking across her employer's parking lot when she stepped in a pothole, sustaining injuries to her left knee and ankle. In denying the compensability of this claim, the Court stated:
Prior to Act 796 of 1993, our appellate courts recognized the premises exception to the going-and-coming rule, which provided that although an employee at the time of injury had not reached the place where her job duties were discharged, her injury was sustained within the course of her employment if she was injured while on the employer's premises or on nearby property either under the employer's control or situated as to be regarded as actually or constructively a part of the employer's premises. Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). However, in 1993, the Arkansas Legislature passed Act 796 of 1993. Under the Act, a compensable injury does not include an injury suffered at a time when employment services are not being performed. Ark. Code Ann. § 11-9-102(5)(B)(iii); see, Hightower, supra (holding appellant not entitled to compensation for an injury sustained when she fell on ice in her employer's parking lot; merely walking to and from one's car, even on the employer's premises, does not qualify as performing employment services). Here, it is not disputed that appellant fell in appellee's parking lot while on her way to work. Thus, there is no fact issue to determine, and under Hightower we can say as a matter of law that the Act does not apply.
In the present claim, the claimant was in her full uniform and was carrying her police duffle bag when the incident of December 26, 2004, occurred. However, the record demonstrates that, whereas the claimant was required to be in full uniform when on duty, she was not required to dress in her uniform prior to reporting for duty. As an officer living in town with an assigned patrol unit, it was the claimant's privilege and habit to begin her shift by stepping out of her front door and into her patrol car, fully dressed in her uniform and ready for immediate service. By being permitted to begin her shifts in this manner, the claimant was allowed to commence her actual patrol duties faster. In view of this privilege, it would have been ridiculous for the claimant to have driven her patrol unit 2 minutes to the station prior to each shift only to change into her uniform, and then start her patrol, especially given the autonomy she was able to exercise in her work related activities. Per her normal routine, and for her own convenience, the claimant dressed in full uniform prior to leaving her home on the night of December 26, 2004. In addition, on that same night, the claimant carried her police duffle bag with her to the station, as she was required to have certain items with her at all times while on duty. However, the claimant was carrying those items into the station in order to transfer them to the patrol unit that she would be using that night, and to which she was not yet assigned. Therefore, the claimant was not using any of her work related equipment when she slipped and fell in the parking lot.
Based on the above and foregoing, I find that the claimant has failed to establish that she was advancing the employer's interest, either directly or indirectly, simply because she was dressed in full uniform and carrying her police duffle bag when she fell. As the respondent correctly asserts, to hold otherwise would be to enlarge the concept of employment services to the point that the premises exception to the going-and-coming rule has been reenacted.
The remaining critical issue in this claim, therefore, is whether the claimant was on duty when she slipped and fell in the parking lot. By the claimant's own testimony, it was not her normal routine to report to the station at the commencement of her shift. Normally, unless she had paperwork to pick up, the claimant would "hit the streets" for 30 minutes to an hour before going to the station after radioing in from her patrol car that she was on duty. The weather conditions on the night in question, however, caused a variation in the claimant's routine, in that she drove her personal vehicle to work in order to pick up a patrol unit with studded tires rather than driving her assigned unit. Considering the Chief's credible testimony, he acted as much out of concern for the safety of his officers as for any consideration of potential damage to a patrol unit when he specifically instructed his officers not drive or ride in a unit without studded tires until the weather cleared. In addition, the record fails to support any allegation that the Chief specifically instructed the claimant to park her assigned unit and drive her personal vehicle to work on the night of December 26, 2004. On the contrary, the Chief credibly testified that in such hazardous conditions as those of December 26, 2004, the claimant could have called another officer in a unit that was properly equipped with studded tires, to pick her up from her home and take her to the station, since her unit had not yet been fitted with studded tires. Therefore, it is apparent that the claimant chose to drive to work in her own vehicle on the night in question in order to pick up a properly equipped patrol unit. As previously discussed, that the claimant was in full uniform when she arrived at the station does not support the presumption that she was on duty at that time. Moreover, the claimant left her home, which is located 2 minutes from the station, 12 minutes before her shift commenced. Under normal conditions, the claimant would not have had to allow for travel time, but would have simply stepped out of her home and into her unit at 10 o'clock, and immediately radioed dispatch that she was on duty. Therefore, reasonable minds could conclude without resorting to conjecture or speculation that, in view of the weather conditions that night, the claimant had allowed herself this extra time in order to ensure that she would arrive at the station on time to begin her scheduled shift. Second, the claimant admitted that she did not radio in from her personal vehicle because she was not in her assigned vehicle and, therefore, could not take a call. On cross examination, the claimant further admitted that she did not radio in from her hand-held unit that night to report that she was on duty because she needed to be in her police vehicle to actually be on duty. Likewise, the Chief testified that an officer had to be fully uniformed and in their patrol unit in order to be "on-duty". Last, the Chief clarified that, unlike his two investigators, his patrol officers are never on-call. Moreover, the uniformed officers are paid hourly, versus a salary. Finally, off-duty uniformed officers are subject to being asked to report for duty in the event of an emergency, but they are not, however, obligated to personally intercede in police matters while off-duty.
In sum, regardless of what the claimant ordinarily did as a matter of routine, i.e., dressed at home, patrolled for awhile prior to coming into the station, drove her assigned patrol unit home and parked it in her driveway at the end of each shift, etc., the claimant had departed from this routine on the night in question due to the forces of nature. And, whether or not the claimant drove her own personal vehicle to work that night is of little consequence, since she was not injured traveling to or from work. However, the assertion that the claimant was on-duty at the time she got into her personal vehicle on the night of December 26, 2004, is unpersuasive. Although it is undisputed that the claimant fell in the respondent employer's parking lot while on her way to work, the claimant has failed to prove that she was on duty at the time she fell. Merely walking to and from one's car, even on the employer's premises, does not qualify as performing employment services. Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). Likewise, the claimant has failed to prove by a preponderance of the evidence that she was she was advancing the employer's interest, either directly or indirectly, simply because she was dressed in full uniform and carrying her police duffle bag when she fell.
Based on the above and foregoing, I find that the claimant has failed to prove by a preponderance of the evidence that she was injured in the course and scope of her employment on December 26, 2004. Therefore, I must respectfully dissent from the majority opinion.
___________________________________ KAREN H. McKINNEY, Commissioner