Opinion
CLAIM NO. F006771
OPINION FILED FEBRUARY 21, 2003
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE J. RANDOLPH SHOCK, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by HONORABLE DOUGLAS CARSON, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed
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 he sustained a compensable injury and that the claimant was entitled to wage loss disability benefits in the amount of 44% to the body as a whole. Based upon our de novo review of the record, we reverse the decision of the Administrative Law Judge. Specifically, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury while he was in the course and scope of his employment with the respondent-employer. Because we find that the claimant has failed to prove that he sustained a compensable injury, we also find that the claimant is not entitled to any wage loss disability benefits.
The claimant has appealed that portion of the Administrative Law Judge's findings that the claimant was only entitled to a 44% loss in wage-earning capacity. The claimant contends he is permanently and totally disabled. The respondents appeal that portion of the Administrative Law Judge's finding that the claimant sustained a compensable injury and the finding awarding a 44% loss in wage-earning capacity. The respondents contend that the claimant was not performing employment services at the time of his injury.
The claimant was employed by the respondent-employer (city) as a truck driver for the street department. Near the back of the "yard", which was the claimant's base for his employment, there was a large pile of gravel which had been removed from other locations. The gravel is put into this waste pile and it will never be used for city purposes again. However, the city permitted its employees to take gravel from this pile for their own personal use. We would note that this is no longer the policy with the city. With approximately 30 minutes left till the end of his shift, the claimant decided that he was going to load some of the waste gravel into his personal truck to take home to use on his own driveway. While the claimant was climbing up on the side of his own truck, his foot slipped off the tire he was stepping on and he fell. The claimant grabbed the truck and it pulled his shoulder. The claimant sustained a left rotator cuff tear.
For the claimant to establish a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, the following requirements of Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002), must be established: (1) proof by a preponderance of the evidence of an injury arising out of and in the course of employment; (2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury; and (4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence. If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of a claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).
Arkansas Code Ann. § 11-9-102(5)(B)(iii) (Repl. 2002) states:
An injury is not compensable if it was inflicted upon the employee at a time when employment services were not be performed, or before the employee was hired or after the employment relationship was terminated.
Employment services are performed when the employee does something that is generally required by his or her employer. Collins v. Excel Spec. Prods., 347 Ark. 811, 69 S.W.3d 14 (2002); Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (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 previously stated as whether the employee was engaged in the primary activity that he was hired to perform or in incidental activities which are inherently necessary for the performance of the primary activity. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).
In White v. Georgia-Pacific Corp, 339 Ark. 474, 6 S.W.3d 98 (1999), the claimant's duties included loading some veneer dryers with lumber. Although he was supposed to have three scheduled work breaks per shift, he frequently was unable to take breaks because the employer failed to provide relief staff. Accordingly, the claimant would take a break in a cigarette-smoking area where he still could view his work station and immediately return if necessary. While returning from a smoke break, he slipped and fell on some slick algae on the floor.
The Arkansas Supreme Court held that the claimant had sustained a compensable injury. The court stated the following rules for deciding when an employee is performing "employment services":
We have held that the test for determining whether an employee was acting within the "course of employment" at the time of the injury requires that the injury occur within the time and space boundaries of the employment, when the employee is carrying out the employer's purpose or advancing the employer's interest directly or indirectly.
Related to the issue of whether an injury arose in the course of employment is the requirement that the employee be performing "employment services" at the time of the injury. The court of appeals has held that when an employee is doing something that is generally required by his or her employer, the claimant is providing employment services.
Id. at 478, 6 S.W.3d at 100 (emphasis added).
In concluding that the claimant suffered a compensable injury, the court twice emphasized that the employer compelled the claimant to be in the circumstances in which he found himself at the time of the accident:
Because there was no relief worker provided, White was forced to remain near his immediate work area in order to monitor those machines. If one of those dryers needed to be loaded or his supervisor needed him for some reason, White would have been forced to return to his forklift immediately.
In Collins v. Excel Specialty Products, 347 Ark. 811, 69 S.W.3d 14 (March 7, 2002), the claimant left the production line in a meat processing plant to go to the bathroom. On her way to the bathroom, she fell and broke her arm. The court relied on the same statutory principles and case law definitions set out above, citing White. Significantly, the court reasoned:
We note that the activity of seeking toilet activities, although personal in nature, has been generally recognized as a necessity such that accidents occurring while an employee is on the way to or from toilet facilities, or while he or she is engaged in relieving himself or herself, arise within the course of employment.
347 Ark. At 818 (emphasis added). The Court concluded that the claimant's taking a restroom break "was a necessary function and directly or indirectly advanced the interests of his employer." Id. at 819 (emphasis added).
Likewise, in Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W.3d 1, the employee was injured after leaving a bathroom at his employer's facility. The Court's discussion in Pifer closely tracks that of the Collins opinion. This included the conclusion that claimant Pifer's restroom break "was a necessary function and directly or indirectly advanced the interests of his employer."
In Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997), a nurse's assistant whose job required her to care for patients in their homes was injured in an automobile accident while on route from her employer's offices to a patient's home. The claim was deemed to be compensable because "travel was a necessary part of her employment." 328 Ark. At 387, 944 S.W.2d at 527 (emphasis added).
Conversely, a claimant was denied compensation when she tripped over a rolled-up carpet while walking to a designated smoking area. Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998). Although the claimant argued that allowing her to take a smoke break indirectly advanced the employer's interest by allowing her to be more relaxed and, therefore, to work more efficiently, the court rejected this contention. The court reasoned that "although appellant's break may have indirectly advanced her employer's interests, it was not inherently necessary for the performance of the job she was hired to do." Id. at 139, 970 S.W.2d at 304 (emphasis added).
A review of the evidence demonstrates that the claimant was not performing employment services at the time he sustained his injury. The claimant was loading waste gravel into his own personal truck for hisown personal use to spread on his own personal driveway at the time of the incident. It is not even arguable that the claimant's task that he was performing at the moment he was injured was even indirectly benefitting the respondent. It was only benefitting the claimant. Likewise, it is not inherently necessary for the claimant's job performance to take waste gravel home for his driveway nor was it inherently necessary for his job for him to climb on the side of his own personal truck to throw back debris which he did not wish to take home. At the time of the incident, the claimant was throwing a cinder block onto the waste pile. The claimant was adding to the city's waste, as opposed to taking from it at the time of the incident. The Administrative Law Judge concluded that by taking waste gravel, the claimant was indirectly advancing his employer's interest of not having to take the waste material to the landfill. However, there was no evidence to show how many trips to the landfill that were rendered unnecessary because of the claimant taking gravel. There was still waste material left behind that he did not take. Also, there was no evidence showing exactly how much, if any, real savings in time, money, or anything else that the city gained in allowing the claimant to take the gravel. The entire course of activities leading up to the accident took only a matter of minutes. It was at the end of the work day when the claimant had finished his last task and he was simply waiting for the end of his shift. The claimant admitted that he himself was the real beneficiary of him taking the waste gravel.
Therefore, when we consider all the evidence, we cannot find that the claimant sustained a compensable injury while he was performing employment services for the respondent-employer. Accordingly, we hereby reverse the decision of the Administrative Law Judge. This claim is denied and dismissed.
IT IS SO ORDERED.
_______________________________ JOE E. YATES, Commissioner
Chairman Reeves concurs.
CONCURRING OPINION
I concur in the principal opinion's findings. I write separately to express my observations regarding several potential issues in this case.
The dissenting opinion appears to concede that the claimant was not performing the activity he was hired to perform or in any incidental activity necessary to perform the job he was hired to perform when he became injured loading gravel into his truck to take home for his own personal use. Nevertheless, the dissent cites Collins v. Excel Specialty Products, 347 Ark. 861 [ 347 Ark. 811], 69 S.W.3d 14 (2002) and Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W.3d 1 (2002) for the proposition that an employee is performing employment services anytime he is engaged in some activity that can be shown to benefit his employer either directly or indirectly, regardless of whether or not the activity he is engaged in was an activity he was hired to perform.
I agree with the dissent that the opinions cited by the dissent do specifically state at one point that "the critical issue is whether the employer's interests are being advanced either directly or indirectly by the claimant at the time of the injury." See 347 Ark. at 818 and 347 Ark. at 858. However, I point out that both opinions also cited with approval the Supreme Court's own prior statement from White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999) that an employee is engaged in employment services when he or she "is doing something that is generally required by his or her employer". I also point out that the Court in both Collins and Pifer specifically held that the bathroom break at issue "was a necessary function and directly or indirectly advanced the interests of her employer." [Emphasis mine]. See 347 Ark. at 819 and 347 Ark. at 859.
In the present case, there is no serious dispute that the claimant was only engaged in an activity that he was permitted to do, and as even the dissent notes was clearly not engaged in any activity that he wasexpected by his employer to perform when he became injured. Absent any further guidance from the Courts, I do not interpret either Collins orPifer as indicating that, just because the City of Fort Smith might receive some degree of potential economic benefit from the claimant's taking home gravel, that potential economic benefit would somehow convert an employee's activity engaged in for self-interest, loading free material, into an employment service activity. For the foregoing reasons, I am not persuaded by the dissent's legal argument, and I concur that the claimant was not engaged in an employment service while loading free gravel into his truck, Accord, Boudreau v. Wal-Mart Stores, 249 F.3d 715 (8th Cir. 2001).
I also note that, because we find that the claimant failed to establish that he sustained a compensable injury, all issues regarding the Administrative Law Judge's award of benefits are moot.
Finally, I note that the respondents sought at the hearing a repayment of workers' compensation benefits that the claimant has already received, should the Commission determine that the claimant did not sustain a compensable injury. To my knowledge, the Commission has no statutory or inherent authority to direct the repayment that the respondent seeks. See generally, Roger Osborne v. Logan County, Full Workers' Compensation Commission, Opinion filed August 20, 1998 (W.C.C. No. E513263).
______________________________ OLAN W. REEVES, Chairman
Commissioner Turner dissents.
DISSENTING OPINION
I must respectfully dissent from the principal opinion, which reverses the decision of the Administrative Law Judge that the claimant proved by a preponderance of the evidence that he suffered a compensable injury.
Claimant worked for the respondent employer as a truck driver for the respondent employer's street department. One of the services performed by respondent employer for the public was the cleaning of storm sewers after rains. The debris collected by the street department was temporarily deposited at a "yard" owned by respondent employer. The debris was removed from the yard in one of two ways. First, employees were free to take the debris away if they wished to do so. Second, any debris not taken by employees was hauled away from the yard to a landfill by city employees.
On March 2, 2000, the claimant drove his truck to the "yard" for the purpose of loading some of the debris onto his truck. While in the process of loading his truck with the debris, he was injured.
Essentially, this case turns upon whether the claimant's injury was incurred "in the course and scope of employment," and/or whether the claimant's injury was incurred at a time when he was performing "employment services." The ultimate issue is whether the claimant was advancing his employer's interest, directly or indirectly, at the time he was injured. See Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W.3d 1 (2002); Collins v. Excel Specialty Products, 347 Ark. 811, 69 S.W.3d 14 (2002). In support of their conclusion that claimant was not advancing his employer's interest at the time he was injured, the principal states (1) that claimant was loading the debris for his own personal use at the time of his accident, (2) it was not "inherently necessary" for the claimant's job performance to take waste gravel home for his driveway, (3) it was not "inherently necessary" for the claimant to throw back debris that he did not wish to take home, as the evidence indicates that claimant was injured as he was throwing a cinder block back into the pile, (4) there was no evidence to show how many trips to the landfill were rendered unnecessary as a result of the claimant's taking debris from the yard, and (5) there was no evidence showing how much, if any, real savings in time, money or anything else that the city gained in allowing the claimant to take the debris.
As to statement (1), I find nothing in the definition of "course of employment" or "employment services," as those phrases have been construed by our Supreme Court, which would preclude a finding that the claimant's activity was within either of those definitions because the activity in question might also serve a purpose which advanced the claimant's personal interest. Rather, the relevant question is whether the activity advanced the employer's interest, directly or indirectly, regardless of whether it may have also advanced the claimant's personal interest. Therefore, I do not find the fact that the claimant was indeed loading the gravel to take it home for use on his driveway to in any way preclude a finding that he was advancing his employer's interest.
As to statement (2), it would seem that if it is a requirement that an activity be "inherently necessary" in the performance of the claimant's employment, then the activity in question in this case could not be compensable. There seems to be no dispute but that the claimant in this case was not required to haul off the debris as he was doing at the time he was injured. However, I would note that while Court of Appeals opinions have used the "inherently necessary" standard to determine whether the activity in question constituted employment services, this standard was neither applied nor endorsed by the Supreme Court in the Pifer and Collins cases. Rather, Pifer and Collins stated that the test to determine whether an activity is "in the course of employment" or "employment services" was whether the claimant was advancing the employer's interest, directly or indirectly, at the time he or she was injured. It would seem that, as evidenced by the present case, an activity could advance the employer's interest directly or indirectly, yet nevertheless be one that is not "inherently necessary" to the performance of the claimant's job duties. Therefore, the ultimate question is whether the employer's interests were being advanced, regardless of whether the activity was "inherently necessary."
As to statement (3), I would note that while it does appear that at the precise moment claimant slipped off his truck, he was attempting to retrieve a concrete block that he had loaded on his truck, it is the overall activity of hauling off debris that advanced the employer's interest. As to statements (4) and (5), the principal apparently concludes that there is a materiality inquiry to be undertaken to determine if an activity is in the course of employment, and/or constitutes "employment services." I interpret the principal's conclusion to be that if it is not shown that the activity in question was of some level of quantifiable benefit to the respondent, then it cannot be in the course of employment or constitute employment services. Again, I find nothing in the definition of "course of employment" or "employment services" as those phrases have been interpreted by our Supreme Court which requires a showing that the activity in question provided some level of quantifiable and significant benefit to the employer in order for the activity to be in the course of employment or constitute "employment services. Therefore, the relevant question is whether claimant's hauling off the debris advanced the employer's interest of getting the debris off the "yard" property, not whether the claimant's hauling off the debris made a sufficiently "significant" contribution toward getting the debris off the property.
Finally, in support of my conclusion that claimant was indeed acting in the course and scope of his employment, as well as performing employment services, at the time he was injured, I would point out (1) that claimant was being paid at the time he loaded the debris, and there is no evidence to indicate that claimant's pay was "docked" for the time or that claimant was in any way disciplined for loading the debris on the employer's time, and (2) claimant was assisted in loading the debris by Mr. James Riggs, a fellow city employee who helped claimant load the debris by using an equipment operator owned by the city. See Hearing Transcript, page 42. While these two facts are not controlling, they do tend to indicate that the city was obtaining a benefit by the claimant's hauling off the debris. It would perhaps be a different story if the claimant and Mr. Riggs were acting contrary to the stated policy of the respondent employer when they loaded the debris on "company time," using "company equipment." However, the respondent employer not only did nothing to discipline the claimant or Mr. Riggs, their stated policy was that employees were allowed to haul off the debris. Therefore, I find that the city's assent to the use of its equipment and personnel indicates that it expected to derive a benefit from the activity of employees' hauling off the debris.
For these reasons, I respectfully dissent.
______________________________ SHELBY W. TURNER, Commissioner