Opinion
CLAIM NO. E705767
OPINION FILED NOVEMBER 12, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE C. BURT NEWELL, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE RICHARD S. SMITH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on January 12, 1998. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury on April 24, 1997. After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be reversed.The essential facts in this case are not in dispute, and this case appears to present a question of law. The claimant was employed as a supervisor in the Division of Child and Family Services for the Department of Human Services in Malvern. The claimant was scheduled to attend a monthly meeting in Arkadelphia on April 24, 1997. The claimant was not scheduled to proceed to the Malvern office before driving to Arkadelphia, and the claimant did not intend to drive to the Malvern office prior to going to Arkadelphia.
The most direct route for the claimant to proceed from her home to Arkadelphia would take the claimant south on Military Road to an intersection with Interstate 30, and then to proceed to Arkadelphia on Interstate 30. On the morning of April 24, 1997, the claimant left her home with her two children in the car and proceeded south on Military Road. The claimant then turned east off Military Road onto a county road to take her children to the babysitter's house. After dropping her children off at the babysitter's house, and during the course of retracing her route back along the county road while proceeding toward Military Road, the claimant was involved in a substantial automobile accident. As soon as the claimant left the babysitter's home, her sole purpose was to proceed to the work-related meeting in Arkadelphia. In order to proceed to Arkadelphia along the most direct route after leaving the babysitter's home, the claimant was required to retrace her path along the county road back to Military Road.
The claimant asserts that the accident was work-related because the accident occurred after the claimant had delivered her children and was proceeding along the most direct route to Arkadelphia. The respondents assert that the claimant's deviation from her work-related business trip would not have ended until the claimant had returned to a point along the most direct route between her home and Arkadelphia. In the present case, the claimant would not have reached that point until she had completely retraced her route along the county road and returned to Military Road. Therefore, the specific issue in this case is whether the claimant's personal deviation ended at the point that she left the babysitter's house, or whether the deviation would not have ended until she had completely retraced her side route and had returned to Military Road. Although the parties have cited several Arkansas cases in support of their positions, it appears from our research that this may be a case of first impression in Arkansas on the precise legal issue presented.
Professor Larson in his treatise on workers' compensation law sets forth the following general rule regarding deviations:
§ 19.00. An identifiable deviation from a business trip for personal reasons takes the employee out of the course of his employment until he returns to the route of the business trip, unless the deviation is so small as to be disregarded as insubstantial. In some jurisdictions, the course of employment is deemed resumed if, having completed his personal errand but without having regained the main business route, the employee at the time of the accident was proceeding in the direction of his business destination. If the main trip is personal, a business detour retains its business character throughout the detour.
1 Larson, Workmen's Compensation Law, § 19.00 (1996).
Professor Larson goes on to address with diagrams approximately twenty different deviation fact patterns. We interpret the facts in the present case to be essentially identical to those discussed in § 19.35 in Professor Larson's treatise. That section indicates that there is a split of opinions among the Courts of states which have decided the issue as to when the deviation ends, but Professor Larson indicates that the majority rule requires an employee who has taken a personal side-trip to "get back on the beam" before being determined to have resumed the business trip. See, also Id. at § 19.33 ("The majority of compensation cases deny recovery in these circumstances, on the ground that a side-trip is a personal deviation until completed, but a minority have taken the position that the journey toward the employment destination or route should be compensable, because the personal motivation is spent, and the employer's object has become the single minded purpose of getting to his employment destination".)
We note that the claimant has not cited any cases in support of her argument that her personal deviation ended at the point that she left the babysitter's house. One case which might appear to support her argument is P.A.M. Transportation v. Miller, 24 Ark. App. 163, 750 S.W.2d 417 (1988). In Miller, a truck driver became injured while walking from a tavern to his truck with the intention of driving the truck to P.A.M. headquarters. The Commission found that the truck driver deviated from his employment while in the tavern, but that the deviation had ended by the time that the driver became injured while walking outside the tavern toward his truck. The Court of Appeals affirmed the Commission under the substantial evidence standard of review, finding that there was clearly substantial evidence to support a conclusion that, whatever the driver's earlier deviation might have been, at the moment he was injured he was acting within the course and scope of his employment. Id. At 167, 750 S.W.2d 417. While the deviation in Miller appears to have been deemed to be over at the time that the employee left the tavern and began walking to his truck, we also note that the claimant in Miller drove for a living, and the Court applied a somewhat different standard indicated in 1A, Larson Workmen's Compensation, § 25.00 in Miller.
Another case which bears some resemblance to the present case is our recent decision in Nicole Sharp v. Sharp Chevrolet, Inc., Full Workers' Compensation Commission, August 12, 1997 (W.C.C. No. E6020568). In Sharp, the Commission found that a traveling employee's injuries from an automobile accident arose out of and in the course of her employment when the accident occurred shortly after the claimant left the destination of a personal errand and proceeded along the most direct route to her work-related destination. However, the distinguishing fact in Sharp was that the employee did not retrace her side-trip route in order to take the most direct route to her work-related destination. Instead, the most direct route to the claimant's work-related destination was an alternate route (which she was on) at the time the accident occurred. According to Professor Larson, this alternate route or triangular route situation is also a distinct fact pattern in deviation cases when compared to side trips that require the traveler to retrace the personal side trip route back to the business route. See, 1 Larson, Workmen's Compensation, § 19.40-19.50.
The respondents cite Day v. Central Day Care, Inc., 38 Ark. App. 241, 833 S.W.2d 783 (1992) and Lytle v. Arkansas Trucking Services, 54 Ark. App. 73, 923 S.W.2d 292 (1996) as authority. The Lytle case appears to be distinguishable from the present case because the truck driver in Lytle became injured while drivingtoward (not away from) the destination of his personal side trip.
The facts in Day bear some significant similarities to the facts in the present case. In Day, the claimant deviated a distance of approximately 30 to 40 feet off her direct business route in order to stop at a florist. The claimant became injured on the florist's premises when she slipped on ice while returning to her vehicle carrying a poinsettia. The Court of Appeals affirmed the Commission's denial of relief on the basis that the claimant was engaged in a totally personal errand at the time she fell. Both the Court and the Commission found it significant "that the risk of slipping on ice while stopped to engage in a personal errand was not a risk of the appellant's employment."Day, 38 Ark. App. 241, 833 S.W.2d 783. Thus, the relevant facts in Day are arguably distinguishable from the facts in the present case because the accident in Day occurred on the premises of the side trip distinction and because the claimant in that case became injured when she slipped on ice. The claimant in the present case became injured while driving, and accidents while driving clearly were a risk of the claimant's employment to the extent that she was required to drive to attend a meeting in Arkadelphia. The issue in the present case is whether the risk of accident was personal to the claimant at the point in her journey that she became injured, or whether those risks were again risks of her employment at the time and place that her accident occurred.
Although not cited by either party, one case which appears to have involved essentially the same legal issue as that presented in the present case was Howard v. Arkansas Power Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987). In Howard, the claimant was temporarily housed in Jonesboro with a company vehicle for transportation to a work site in Black Oak, 17 miles east of Jonesboro. On the evening of July 28, 1983, the claimant drove from Jonesboro to Newport, approximately 47 miles southwest of Jonesboro, to attend an anniversary celebration. The claimant died from injuries sustained in an automobile accident that occurred approximately two miles south of Jonesboro. The Commission found that the claimant's trip to Newport was a personal deviation from his employment duties, and in finding that the claimant's injury did not arise in the course of his employment, the Commission found crucially significant the fact that the claimant's accident did not occur on a direct route between his Jonesboro motel and his Black Oak work site. Thus, it appears that in Howard, the Commission and the Court of Appeals applied the "back on the beam" standard which Professor Larson indicates is the majority rule in this type of deviation fact pattern.
The respondents in the present case argue that the claimant's employer had no business which required the claimant to be on the road where her accident occurred. In light of the evidence that the claimant had not yet completely retraced her side trip route, the respondents' argument appears factually correct. Although the claimant's side trip to the baby sitter's house was a prerequisite to her traveling on to Arkadelphia, the side trip was necessitated by the claimant's personal need to deposit her children, and not for any benefit to her employer.
An injury occurs during the "course of employment" if the injury occurs when the employee is carrying out the employer's purpose or advancing the employer's interests directly or indirectly. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 381 (1997). According to Professor Larson, the majority of jurisdictions would agree with the respondents' assertion that the claimant's personal deviation would not have ended until she was "back on the beam". Likewise, we note that the claimant's injury occurred after July 1, 1993, and therefore, this case is subject to the amendments of Act 796 of 1993, including a requirement that the claimant was performing employment services at the time her injury occurred. We find that a side trip to the babysitter's house was not inherently necessary for performance of the claimant's work-related travel to Arkadelphia. Compare, Hardy v. City of Texarkana, 62 Ark. App. 137, ___ S.W.2d ___ (1998). Under the particular facts of the present case, we therefore find that the claimant was not engaged in employment services at the time that her accident occurred while retracing her route from the baby sitter's house to Military Road.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to establish by a preponderance of the evidence that she sustained a compensable injury. Consequently, we find that the decision of the administrative law judge must be reversed.
IT IS SO ORDERED.
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DISSENTING OPINION
[21] I must respectfully dissent from the majority opinion which held that claimant was not performing employment services at the time of her injury.As the majority notes, this case presents a question of law for the essential facts are not in dispute. On April 24, 1997, claimant traveled with her children on Military Road, and turned east onto a county road in order to reach the babysitter's home. After dropping off her children, claimant began to retrace her route. She was required to be in Arkadelphia for a meeting. Therefore, claimant planned to take interstate 30, which intersects with Military Road. Before reaching Military Road claimant was involved in an automobile accident.
Considering the degree of claimant's deviation, I find that it was insubstantial. Accordingly, I would hold that claimant remained in the course of her employment. In Lytle v. Arkansas Trucking Services, 54 Ark. App. 73, 923 S.W.2d 292 (1996), the Court of Appeals held that a deviation of 100 miles was deemed a substantial deviation. Although claimant was unable to estimate the distance she traveled on the county road, Claimant's Exhibit #2 reflects that her side trip was a matter of a few miles.
Assuming arguendo that claimant's side-trip constituted a deviation, I would still find that claimant's injuries arose out of and in the course of her employment. To support the denial of benefits, the majority attempts to distinguish our decision inNicole Sharp v. Sharp Chevrolet, Full Commission Opinion filed August 12, 1997 ( E602568). In Sharp, claimant dropped her dog off at a pet service. Instead of retracing her route, claimant took an alternate route. The route claimant chose was more direct. Her automobile accident occurred while she was on the alternate route. We held that claimant was performing employment services at the time of her accident. The majority notes that claimant inSharp fit the triangular route fact pattern identified by Professor Larson.
In this case, taking the most direct route required claimant to retrace her steps. An alternative route was unavailable to claimant. In my view, geometry should not dictate the results in deviation cases. Moreover, I would argue that the nature of the personal errand is relevant to the inquiry. In this case, claimant dropped her children off before proceeding to work. This was a prerequisite to her attendance at the meeting in Arkadelphia. In my opinion, the employer benefitted by claimant's actions in this case. On the other hand, the employer received no benefit whatsoever from claimant's errand in Sharp. Against the backdrop of our decision in Sharp, it is my opinion that the result in this case is inequitable.
In my view, the rule which Professor Larson characterizes as the minority rule is the better approach. The minority rule permits recovery although claimant has yet to regain the main business route. By adopting this rule, decisions based on geometric configurations will be eliminated.
Based on the foregoing, I respectfully dissent.
_____________________________ PAT WEST HUMPHREY, Commissioner