Webster v. Arkansas Department of Correction , 2017 Ark. App. LEXIS 639 ( 2017 )


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  •                                  Cite as 
    2017 Ark. App. 558
    ARKANSAS COURT OF APPEALS
    DIVISION II
    No.CV-17-176
    Opinion Delivered:   October 25, 2017
    LISA WEBSTER
    APPELLANT APPEAL FROM THE ARKANSAS
    WORKERS’ COMPENSATION
    V.                                   COMMISSION [NO. G509057]
    ARKANSAS DEPARTMENT OF
    CORRECTION AND PUBLIC
    EMPLOYEE CLAIMS DIVISION
    APPELLEES AFFIRMED
    KENNETH S. HIXSON, Judge
    Appellant Lisa Webster was denied workers’ compensation benefits. Appellant
    appeals from a November 22, 2016 opinion by the Arkansas Workers’ Compensation
    Commission (Commission) affirming and adopting the findings of fact and conclusions of
    law made by the administrative law judge (ALJ) in favor of appellees Arkansas Department
    of Correction (ADC) and Public Employee Claims Division. On appeal, appellant contends
    that substantial evidence does not support the Commission’s decision that she was not
    performing employment services at the time of her injury. We affirm.
    The facts of this case are largely undisputed. Although no one contests that appellant
    sustained an injury to her left knee when she slipped on ice and fell in the parking lot of her
    employer, there is a dispute as to whether she was performing employment-related services
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    at the time of the injury. A hearing was held before the ALJ, and only appellant testified at
    the hearing.
    Appellant was fifty-two years old at the time of the hearing and was a correctional
    officer at the Varner unit of ADC. On the day of the incident, February 23, 2015, appellant
    had commuted to work from Mississippi with a coworker. The inclement-weather policy
    was in effect, which meant that employees would receive their full salary even though they
    were given extra time to report to work. Appellant arrived late but within the time allotted
    under the inclement-weather policy; she was wearing her uniform as there were no
    changing rooms or lockers provided in the prison. Appellant testified that when she stepped
    out of the car, she slipped on “black ice” and injured her left knee. Afterwards, she
    proceeded from the parking lot to the checkpoint, walked through the gate, clocked in, and
    was assigned to her post. Because the prison was short staffed that day due to the weather,
    there was no one to help her fill out workers’-compensation forms. Appellant worked a
    full shift that day and continued to work until March 14, 2015. Appellant additionally
    testified that it was her understanding from her training at the academy that she was held
    responsible for her actions while wearing her uniform even if she was not working at the
    time.
    After the hearing, the ALJ found that at the time of the injury, appellant was going
    to work and injured herself in the parking lot. Therefore, the ALJ found that she was not
    performing any work-related duties at the time of the injury, found that she had failed to
    prove she was performing employment services at the time of her injury, and denied her
    claim for benefits.
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    Appellant appealed the ALJ’s decision, and on November 22, 2016, the Commission,
    in a 2−1 majority opinion, affirmed and adopted the ALJ’s opinion as its own. Under
    Arkansas law, the Commission is permitted to adopt the ALJ’s opinion. SSI, Inc. v. Cates,
    
    2009 Ark. App. 763
    , 
    350 S.W.3d 421
    . In so doing, the Commission makes the ALJ’s
    findings and conclusions the findings and conclusions of the Commission. 
    Id. Therefore, for
    purposes of our review, we consider both the ALJ’s opinion and the Commission’s
    majority opinion. 
    Id. In appeals
    involving claims for workers’ compensation, the appellate court views the
    evidence in the light most favorable to the Commission’s decision and affirms the decision
    if it is supported by substantial evidence. Prock v. Bull Shoals Boat Landing, 
    2014 Ark. 93
    ,
    
    431 S.W.3d 858
    . Substantial evidence is evidence that a reasonable mind might accept as
    adequate to support a conclusion. 
    Id. The issue
    is not whether the appellate court might
    have reached a different result from the Commission but whether reasonable minds could
    reach the result found by the Commission. 
    Id. Additionally, the
    credibility of witnesses
    and the weight to be given to their testimony are within the exclusive province of the
    Commission. 
    Id. Thus, we
    are foreclosed from determining the credibility and weight to
    be accorded to each witness’s testimony, and we defer to the Commission’s authority to
    disregard the testimony of any witness, even a claimant, as not credible. Wilson v. Smurfit
    Stone Container, 
    2009 Ark. App. 800
    , 
    373 S.W.3d 347
    . When there are contradictions in
    the evidence, it is within the Commission’s province to reconcile conflicting evidence and
    determine the facts. 
    Id. Finally, this
    court will reverse the Commission’s decision only if it
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    is convinced that fair-minded persons with the same facts before them could not have
    reached the conclusions arrived at by the Commission. 
    Prock, supra
    .
    In order for an accidental injury to be compensable, it must arise out of and in the
    course of employment. Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2012). A compensable
    injury does not include an injury incurred at a time when employment services were not
    being performed. Ark. Code Ann. § 11-9-102(4)(B)(iii). An employee is performing
    employment services when he or she is doing something that is generally required by his or
    her employer. Cont’l Constr. Co. v. Nabors, 
    2015 Ark. App. 60
    , 
    454 S.W.3d 762
    . We use
    the same test to determine whether an employee is performing employment services as we
    do when determining whether an employee is acting within the course and scope of
    employment. Pifer v. Single Source Transp., 
    347 Ark. 851
    , 
    69 S.W.3d 1
    (2002). 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,
    either directly or indirectly.   
    Id. Moreover, whether
    an employee was performing
    employment services within the course of employment depends on the particular facts and
    circumstances of each case. Centers for Youth & Families v. Wood, 
    2015 Ark. App. 380
    , 
    466 S.W.3d 422
    .
    The going-and-coming rule ordinarily precludes compensation to an employee
    while he or she is traveling between his or her home and his or her job because employees
    who have fixed hours and places of work are generally not considered to be in the course
    of their employment while traveling to and from work. 
    Nabors, supra
    . In order to determine
    whether an injured employee was performing employment services, we must analyze
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    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,
    either directly or indirectly. 
    Id. On appeal,
    appellant contends that substantial evidence does not support the
    Commission’s decision that she was not performing employment services at the time of her
    injury. She argues that she was, at the very least, indirectly benefiting her employer because
    she was going to work despite the inclement weather; was wearing her uniform; was paid
    for her entire shift; and could have been required to assist with prisoners in the parking lot
    even though she was not clocked in. We disagree.
    In support of her argument, appellant cites three cases that merit discussion. In Caffey
    v. Sanyo Manufacturing Corp., 
    85 Ark. App. 342
    , 
    154 S.W.3d 274
    (2004), we held that an
    employee who had presented a security badge at two guard shacks and had entered the
    manufacturing plant but who had not yet clocked in when she slipped and fell in the hallway
    was performing employment services because her employer required her to go through
    those obstacles before getting to her work station. In 
    Nabors, supra
    , we held that an
    employee who had swiped his access card at a gate and had donned his personal-protective
    equipment pursuant to regulations, but who had not yet clocked in when he slipped on his
    way to the employer’s work trailer was performing employment services. Nabors had taken
    affirmative steps to satisfy the general contractor’s safety and security requirements to enter
    the job site; we therefore held that Nabors was clearly advancing his employer’s interests
    when he complied with the general contractor’s rules regarding access to the job site. 
    Id. Finally, in
    North Little Rock School District v. Lybarger, 
    2009 Ark. App. 330
    , 
    308 S.W.3d 651
    ,
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    Lybarger was a teacher’s aide at Boone Park Elementary School. On the date of her injury,
    she was at the Lakewood campus for staff-development day. 
    Id. After she
    had been released
    for lunch and instructed to report to Boone Park Elementary for further meetings afterwards,
    Lybarger broke her right leg while climbing stairs en route to the parking lot but before she
    had left the premises. 
    Id. We affirmed
    the Commission’s finding that she was performing
    employment services. 
    Id. Although she
    was released to lunch, she was required during that
    time to exit the building and travel from one campus where she was performing
    employment services to another campus where she would perform employment services.
    
    Id. Moreover, in
    order to report to Boone Park Elementary, Lybarger first had to walk
    through and exit the Lakewood buildings.          
    Id. Therefore, by
    walking through the
    Lakewood campus, we held that she was carrying out the employer’s purpose and advancing
    her employer’s interest in that she was leaving Lakewood and preparing to report to Boone
    Park Elementary. 
    Id. The cases
    cited by appellant, however, are distinguishable from the facts of this case.
    In both Caffey and Nabors, the case went “beyond the situation in which an employee is
    injured while walking to or from his vehicle in the parking lot before or after work.” Nabors,
    
    2015 Ark. App. 60
    , at 
    5, 454 S.W.3d at 766
    . In Caffey, the claimant had already proceeded
    through required guard shacks, and in Nabors, the claimant had already proceeded through
    the required gate check, and each were thereby advancing their employer’s interests. Here,
    appellant had not entered through a required guard shack or gate check but merely slipped
    when she was exiting the car. Furthermore, unlike the claimant in Lybarger, appellant was
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    not traveling between places at the direction of her employer and injured on the employer’s
    premises while en route.
    Appellant additionally argues that she was performing employment services because
    she was wearing her uniform; however, her argument lacks merit as we rejected a similar
    argument in Linton v. Arkansas Department of Correction, 
    87 Ark. App. 263
    , 
    190 S.W.3d 275
    (2004). Although appellant further argues that she would have performed a job-related duty
    in the parking lot if she had been asked, appellant admitted that she was not performing any
    kind of job duty in the parking lot at the time of her injury nor had she ever been asked to
    do so. Therefore, appellant’s injury occurred in a similar manner as the claimant in Hightower
    v. Newark Public School System, 
    57 Ark. App. 159
    , 
    943 S.W.2d 608
    (1997). There, we
    affirmed the Commission’s finding that the claimant, who fell on ice in the parking lot of a
    day-care center where she worked, was not performing employment services. 
    Id. Similarly, appellant
    was injured in the parking lot of her employer before she had clocked in or had
    any job-related responsibilities. See also Parker v. Comcast Cable Corp., 
    100 Ark. App. 400
    ,
    
    269 S.W.3d 391
    (2007). Thus, the Commission’s decision that appellant was not entitled
    to compensation for her injury is supported by substantial evidence and is affirmed.
    Affirmed.
    GRUBER, C.J., and MURPHY, J., agree.
    Goldberg & Dohan, by: Andy L. Caldwell, for appellant.
    Charles H. McLemore Jr., for appellee.
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