Opinion
CLAIM NO. F610850
OPINION FILED JULY 7, 2009
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE RONALD L. GRIGGS, Attorney at Law, El Dorado, Arkansas.
Respondent No. 1 represented by the HONORABLE PHILLIP CUFFMAN, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE CHRISTY KING, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondent appeals and the claimant cross appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury and awarding a 10% loss in wage earning capacity in addition to her permanent anatomical impairment rating. Specifically, the respondents appeal the finding that the claimant was performing employment services at the time of her injury. The claimant appeals the award of 10% loss in wage earning capacity contending the claimant should be found to be permanently and totally disabled. After conducting a de novo review of the record, we find that the decision of the Administrative Law Judge should be reversed. We find that the claimant was not performing employment services at the time she fell.
The claimant worked for the respondent employer as a lumber grader. This job required the claimant to examine lumber that was conveyed down on a chain belt for inspection. She would flip the lumber over to examine it and certify each pieces grade. The claimant worked the night shift. She was given a break before lunch and after lunch. Each break was signaled by a whistle and the entire production line would shut down. All of the employees would go to a break room. The claimant was not required to clock out unless she left the premises. The before and after lunch break lasted fifteen minutes and the lunch break lasted thirty minutes. There was nothing the claimant could do during the break periods but take the break. The claimant testified that she was never subject to be called off from break to work. In fact, no one was ever asked to return to work during their break.
On September 18, 2006, the claimant was going to the break room for her before lunch break. She tripped over some lumber and fell on her left shoulder. The claimant sought medical treatment the next day and was told to stay off work for four days. She was eventually seen by Dr. Jay Lipke, an orthopedic surgeon. Dr. Lipke diagnosed the claimant with a rotator cuff tear. He performed surgery on the claimant on December 22, 2006.
The claimant returned to work for the respondent employer following her surgery. She was doing a different job. The claimant was terminated on May 5, 2007, and has not worked any where since then nor has she applied for any other jobs. She has been approved for social security disability.
The respondents offered the testimony of Mr. Jim Phillips, manager of corporate safety for the respondent employer. Mr. Phillips testified that the planer mill the claimant worked on stopped at break times.
The claimant at this time contends that she sustained a compensable injury when she fell and is entitled to permanent and total disability benefits. The respondents contend that she was not performing employment services at the time she fell.
Act 796 defines a compensable injury as a "an accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death." Ark. Code Ann. § 11-9-102(4)(A)(i). A compensable injury does not include an "[i]njury which was inflicted upon the employee at a time when employment services were not being performed. . . ." Ark. Code Ann. § 11-9-102(4)(B)(iii).
Employment services are performed when the employee does something that is generally required by his or her employer. Collins v. Excel Specialty Products, 347 Ark. 811, 69 S.W.3d 14 (2002); Pifer v. Single Source Transport, 347 Ark. 851, 69 S.W.3d 1 (2002); White v. Georgia-Pacific Corp., 339 Ark 474, 6 S.W.3d 98 (1999). We use the same test to determine whether an employee was performing "employment services" as we do when determining whether an employee was acting within "the course of employment." Smith v. City of Ft. Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004); Collins, supra; Pifer, supra; White, supra; Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). The test is whether the injury occurred "within the time and space boundaries of the employment, when the employee [was] carrying out the employer's purpose or advancing the employer's interest directly or indirectly." Collins,supra; Pifer, supra; White, supra; Olsten, supra. The critical issue is whether the interests of the employer were being carried out by the employee at the time of the injury. Collins, supra. In Collins and Pifer, the Arkansas Supreme Court specifically overruled "all prior decisions by the Arkansas Court of Appeals" to the extent that they were inconsistent with the holdings in those two cases. Wal-Mart Stores, Inc. v. King, 93 Ark. App. 101, 216 S.W.3d 648 (2005).
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 her 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. App. 322, 49 S.W.3d 126 (2001).
Our review of the evidence demonstrates that the claimant was not performing employment services at the time she fell and hurt her shoulder. The claimant testified that she was injured on her way to take a break. The whistle had sounded notifying the employees that it was break time. The claimant had exited the building in which she worked when she tripped and fell. Production was stopped during this break and the claimant had no work to perform during this break whatsoever. Further, she was not subject to recall to perform work during the break and neither were any of her co-workers on the same line.
This case is clearly distinguishable from Ray v. University of Arkansas, 66 Ark. App. 177, 999 S.W.2d 558 (1999). In Ray, the claimant was required to standby ready to assist students during her break period. In this case, the claimant was not. She would go to the break room and was not subject to being recalled to perform any employment related duties.
Accordingly, we hereby reverse the decision of the Administrative Law Judge. We find that the claimant was not performing employment services at the time she fell. The claimant was not furthering the employer's interests at the time she feel. She was going on a break and she was not required to stand ready to assist the employer during that break. Therefore, this claim is hereby denied and dismissed.
IT IS SO ORDERED.
___________________________________ A. WATSON BELL, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner Commissioner Hood dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion. After a de novo review of the record, I find that the claimant was performing employment services for a number of reasons. First, the testimony from both witnesses show that the claimant had no choice but to take a 15-minute break twice per day. The testimony showed that the plant would actually shut down and no work could be performed during the 15-minute breaks. The claimant credibly testified that her job was rapid and repetitive in nature and of such a physical demand that it was in the best interests of her employer to make sure that all employees received the breaks. It is obvious that the employer felt such a need to give the employees a break that they made such breaks mandatory.
The claimant worked on an assembly line type process, and a whistle would blow, signaling a 15-minute break, and the assembly line would shut down. The testimony also was uncontroverted on the point that the claimant remained on the clock during the 15-minute breaks and was paid to take a break. The testimony also showed that the claimant could not leave the work premises during the 15-minute breaks, unless she wanted to clock out. At the time of the fall, the claimant was on a mandatory 15-minute break and was still clocked in. Based on the above, I find that the required 15-minute breaks were a benefit to the respondent-employer, in that, the 15-minute rest time would increase employee's stamina and morale. I find that the claimant, by going to the break room during one of her required 15-minute break sessions, was doing something that was required by her employer. Therefore, I find that the claimant was performing employment services at the time of her fall on September 18, 2006.
For the aforementioned reasons I must respectfully dissent.