Opinion
CLAIM NO. F005509
OPINION FILED MAY 9, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JEAN MADDEN, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE CAROL WORLEY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and affirmed as modified in part.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the Administrative Law Judge on September 28, 2001. In that opinion and order, the Administrative Law Judge found that the claimant proved by a preponderance of the evidence that he was performing employment services when he attempted to step into his truck on April 26, 2000 and slipped and fell injuring his cervical spine. In addition, the Administrative Law Judge found in relevant part that the claimant's attorney is entitled to an attorney's fee in the amount of one-half of the maximum statutory attorney's fee on benefits awarded by the Administrative Law Judge. After conducting a de novo review of the entire record, we find that the claimant has proven by a preponderance of the evidence that he was performing employment services when he was attempting to step into his truck on April 26, 2001 and injured his cervical spine in a slip and fall. Therefore, we find that the Administrative Law Judge's decision in this regard must be affirmed. In addition, we find that the claimant's attorney is entitled to the maximum statutory attorney's fee on the benefits awarded by the Administrative Law Judge. Therefore, the Administrative Law Judge's decision in this regard is affirmed as modified.
1. What was the claimant doing when he slipped and fell?
The respondents and the dissent assert on appeal that the claimant is not a credible witness, and that the claimant has failed to establish by a preponderance of the evidence that his injury occurred while attempting to step into his truck on April 26, 2000. This factual issue essentially turns on credibility. The Administrative Law Judge, who heard the live testimony and observed the demeanor of the witnesses, noted that the testimony of the claimant, the testimony of his daughter, who was purportedly a witness to the accident, and the claimant's medical records indicate that the claimant hurt himself when he slipped and fell while stepping onto the truck. We see no adequate basis to reverse the Administrative Law Judge's finding of fact that the claimant's injury occurred while the claimant was stepping into his truck on April 26, 2000 at the end of a break. Therefore, we affirm the Administrative Law Judge's finding of fact.
2. Is a trucker performing employment services when he steps up into his truck after completing a break?
As recently explained by the Arkansas Court of Appeals:
Arkansas Code Annotated section 11-9-102(4)(A) (Supp. 2001) defines "compensable injury" as "an accidental injury causing internal or external physical harm . . . arising out of and in the course of employment." Employment services are performed when the employee does something that is generally required by his or her employer. Collins v. Excel Spec. Prod., 347 Ark. ___, ___ S.W.3d ___ (Mar. 7, 2002); Pifer v. Single Source Transp., 347 Ark. ___, ___ S.W.3d ___ (Mar. 7, 2002). 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." Collins, supra; Pifer, supra. 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 interests directly or indirectly." Collins, supra; Pifer, supra. This test has also been previous [sic] stated as whether the employee is "engaged in the primary function that he was hired to perform or in incidental activities that are inherently necessary for the performance of the primary activity." Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W.2d 956 (1996), Aff'd, 328 Ark. 381, 944 S.W.2d 524 (1997).
Privett v. Excel Specialty Products, ___ Ark. App. ___, ___ S.W.3d ___ (Mar. 13, 2002).
In the present case, the Administrative Law Judge found that when the claimant stopped for his break and was in a convenience store for an extended period of time, he was not performing employment services, as his activities were so far removed from the intended scope of his employment duties that he was no longer advancing his employer's interests. However, the Administrative Law Judge noted that in order for the claimant to drive his truck, the claimant was required to make some effort to enter the cab of the truck. The Administrative Law Judge found that opening the door of the cab and stepping up into the truck is an incidental activity that must first take place before the claimant can even attempt to perform his primary job duty that he was hired to perform (i.e., drive).
Absent any legal guidance from the courts specifically on point, we agree with the Administrative Law Judge's conclusion that the claimant's activity of stepping into the truck indirectly advanced his employer's interest by placing the claimant into the vehicle he was hired to drive, and that entering the truck encompasses an expected incidental activity which is necessary in order for the claimant to perform the primary job task that he was hired to do. We therefore affirm the Administrative Law Judge's legal conclusion that the claimant was performing employment services when he was attempting to step into his truck on April 26, 2000 and sustained an injury when he slipped and fell.
In reaching our decision, we also note that the dissent argues that the claimant was not performing employment services while stepping on the truck because (1) he was "off the clock", (2) he was not on his employer's premises, and (3) he was in violation of company policy by having his daughter with him in the truck. On the dissent's first two points, we note that, at least for truckers, such factors as whether the employee is "on the clock" or on the employer's premises when an injury occurs are likely to have little bearing on whether a trucker's injury is sustained at a time when employment services are being performed. See generally Ray v. Wayne Smith Trucking, 68 Ark. App. 115, 4 S.W.3d 506 (1999) [long-haul trucker performing employment services while preparing his truck for a cross-country drive on his day off]. Although Ray involved a circumstance where the injury happened to occur on the employer's property, we point out that trucking, by its very nature, is performed both on and off the employer's premises. The risk of injury stepping up into a truck occurs whether the vehicle is on or off the employer's premises, and we know of no authority, nor has the dissent cited any authority, suggesting that a trucker's injuries must occur on the employer's premises to be compensable.
Assuming arguendo that the dissent is correct that the claimant was violating company policy in having his daughter in the truck, we fail to see how her mere presence in the truck might possibly support a finding that the claimant was not performing employment services when he attempted to step up into the truck to continue his route, absent any type of causal connection between the daughter's presence in the truck and the injury sustained by the claimant. Here, the dissent cites no evidence to support the dissent's implied argument that the claimant's injury is somehow connected to his daughter's presence in the truck. Consequently, the dissent's arguments in all three regards appear to be without merit.
We further note that the respondents did not contest the other elements of compensability before the Administrative Law Judge (see Administrative Law Judge opinion, page 10) or before the Full Commission (see respondents' reply brief to the Full Commission, page 4). Therefore, we affirm the Administrative Law Judge's finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury. The respondents are directed to comply with the award of benefits in the Administrative Law Judge's September 28, 2001 opinion and order.
3. Is the issue of claimant's attorney's appropriate fee adequately preserved for appeal, and if so, what is the appropriate fee for the claimant's attorney on controverted benefits awarded in this case?
The claimant's attorney asserts in the claimant's brief on appeal that the claimant's attorney should be entitled to the maximum statutory attorney's fee allowed by law, and that the Administrative Law Judge's decision in this regard should be modified. The respondents counter in their reply brief on appeal that the Commission is without authority to modify the Administrative Law Judge's award of attorney's fee because the claimant did not file a cross-appeal of the Administrative Law Judge's decision.
Under some circumstances, the respondents' argument that the Commission is without authority to award affirmative relief absent a notice of cross-appeal may be well taken. However, we note that the respondents' notice of appeal in the present case states in its entirety:
Come the Respondents, by and through their attorneys, Huckabay, Munson, Rowlett Tilley, P.A., and for their Notice of Appeal, states:
1) The Respondents hereby appeal from the Administrative Law Judge's Opinion, filed September 28, 2001, in that they believe the Opinion is contrary to the law and facts.
2) The Respondents respectfully assert through their counsel that this appeal is not being taken for the purposes of delay. [Emphasis ours.]
We find that the highlighted language in the respondents' notice of appeal unambiguously calls into question the Administrative Law Judge's decision and all of the findings on which it was based. Under these circumstances, we are not at liberty to disregard the issue of attorney's fees raised in the claimant's brief on appeal, simply because the claimant did not file a cross-appeal, as the respondents' suggest in their reply brief. See generally Wilson v. Cargill, Inc., 45 Ark. App. 174, 873 S.W.2d 171 (1994); Rogers v. Darling Store Fixtures, 45 Ark. App. 68, 870 S.W.2d 776 (1994); White v. Air Systems, Inc., 33 Ark. App. 56, 800 S.W.2d 726 (1990).
In the present case, the claimant's attorney's fee was reduced by the Administrative Law Judge based on the nature of the index and content of the medical exhibits offered by the claimant's attorney into the hearing record. We are persuaded by the explanation provided by the claimant's attorney in her brief on appeal that she justifiably included medical reports for treatment and doctor visits prior to the date of the accident in anticipation of an argument by the respondents that claimant suffered from a preexisting condition. Claimant's attorney has also expressed her regret that the Administrative Law Judge was inconvenienced by finding more records in the file than she considered necessary. We note that the claimant's attorney ably represented the claimant in obtaining the benefits at issue in this case, and we note that the claimant's attorney prepared and proffered both a pre-hearing brief and a post-hearing brief in this case. After considering the nature, length, and complexity of the services performed by the claimant's attorney, and the benefits resulting to the claimant, we find that the preponderance of the evidence establishes that the claimant's attorney is entitled to the maximum statutory attorney's fees allowed by law.
4. Was the claimant denied due process when the Administrative Law Judge refused to include the claimant's unsolicited post-hearing brief as a part of the record of the hearing?
In the present case, the Administrative Law Judge declined to make the claimant's unsolicited post-hearing brief a part of the record. However, we note that the claimant's attorney has had an opportunity, and has availed herself of the opportunity, to completely rebrief the Full Commission on its de novo review on appeal. We therefore note that the claimant has had an opportunity, and presumably has taken advantage of the opportunity, to include in her brief to the Full Commission whatever argument that she presented to the Administrative Law Judge in the unsolicited post-hearing brief which the Administrative Law Judge declined to make a part of the record. Under these circumstances, we find that the claimant has failed to establish any potential grounds for a due process violation simply because the Administrative Law Judge did not include the claimant's post-hearing brief as a part of the hearing record.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we affirm the Administrative Law Judge's finding that the claimant has proven by a preponderance of the evidence that he was performing employment services when he was attempting to step into his truck on August 26, 2000 and injured his cervical spine when he slipped and fell. We also find that the claimant is entitled to the maximum statutory attorney's fees on the benefits awarded by the Administrative Law Judge in this case. Therefore, we find that the decision of the Administrative Law Judge must be affirmed in part and affirmed as modified in part.
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
CONCURRING AND DISSENTING OPINION
I respectfully concur in part and dissent in part from the principal opinion. I concur in the finding that the claimant failed to establish a due process violation. However, I dissent from the affirmation of the findings regarding compensability, and from the modification of the award of attorney's fees.
I find that the claimant is not a credible witness and therefore find that he failed to establish by a preponderance of the evidence that his injury occurred while he was attempting to step into his truck on April 26, 2000. In her opinion, the Administrative Law Judge wrote,
Admittedly, counsel for respondents highlighted through her cross-examination the inconsistencies in claimant's testimony and his recorded statement given within a week after the accident, as well as the inconsistencies between claimant's testimony and his log book. These inconsistencies help to diminish claimant's credibility. . . .
The Administrative Law Judge disregarded this lack of credibility and found that the claimant's injury occurred while he was stepping into his truck. However, I am not persuaded that the claimant met his burden of proof in this regard.
The Administrative Law Judge's opinion then evaluated the issue of whether the claimant was performing employment services when he fell while entering the cab of his truck. Applying the six factors set forth in Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001), the Administrative Law Judge determined that the claimant was performing employment services, and therefore his injury was compensable. I note that the Supreme Court of Arkansas recently declined to adopt the Matlock factors in Pifer v. Single Source Transportation, ___ Ark. App. ___, ___ S.W.3d ___ (March 7, 2002). In this opinion, the Supreme Court wrote that, when deciding cases involving an employment services issue, "[t]he critical issue is whether the employer's interests are being advanced either directly or indirectly by the claimant at the time of the injury."
In it's decision, the Supreme Court found that Mr. Pifer's conduct in returning to his truck following a restroom break was consistent with his employer's interests, and noted that,
Everything in the record before us indicates that Mr. Pifer was engaged in conduct permitted by the employer, if not specifically authorized by the employer, and that the employer provided restroom facilities on its premises.
This case is distinguishable from the facts of Pifer, in that the claimant was not using restroom facilities located on his employer's premises, and further, was engaged in an activity specifically prohibited by his employer, that being carrying his daughter with him as a passenger in his truck. This distinction is crucial in my determination that even if the claimant's injury were to have occurred while he was entering his truck, such circumstances are not sufficient to be deemed employment services, because the claimant was off the clock, was not on his employer's premises, and was in violation of company policy by having his daughter with him in his truck. For these reasons I find this claim non-compensable, and must therefore respectfully dissent from the affirmation of the Administrative Law Judge's finding of compensability.
While I agree that it is appropriate for the Commission to consider the issue of the claimant's attorney fee as raised in the claimant's brief, despite his failure to file a cross-appeal; I must disagree with the principal's conclusion that the claimant's attorney is entitled to the maximum statutory attorney's fees, and it's modification of the Administrative Law Judge's finding on this point. The Administrative Law Judge's conclusions regarding this issue include the following:
Claimant's counsel's failure to properly follow the simple directions of submitting relevant medical reports indexed by provider and in chronological order has greatly impeded the Administrative Law Judge from expeditiously reviewing the exhibits. Not only were irrelevant records for the medical treatment of a completely unrelated condition which arose prior to claimant's work-related injury submitted into evidence, but claimant's counsel also submitted multiple forms signed by claimant which have no bearing on the compensability of this claim. Claimant's counsel's failure to comply with the Prehearing Order is even more readily apparent in the mass of medical bills which contain duplicate copies of medical expenses for treatment incurred by claimant several months prior to claimant's work-related injury.
Because of these failures, the Administrative Law Judge found that the claimant's attorney was entitled to one-half of the maximum statutory attorney's fees. I would affirm this reasonable conclusion. Therefore, I concur in part and dissent in part from the principal opinion.
_______________________________ JOE E. YATES, Commissioner