Wallace v. West Fraser South, Inc.

Karen R. Baker, Judge.

Appellant, Ricky Wallace, appeals the denial of his workers’ compensation claim for an injury he sustained to his knee. The Administrative Law Judge (ALJ) found that appellant failed to prove that he was performing employment-related services or was engaged in the primary activity that he was hired to perform at the time of his slip and fall. In a decision filed September 9, 2003, the Workers’ Compensation Commission (Commission) adopted and affirmed the opinion of the ALJ and denied the claim. Appellant raises one point on appeal, contending that the Commission erred in finding that he failed to prove by a preponderance of the evidence that he was performing employment services at the time of his injury. We agree that the Commission erred, and we reverse and remand for an award of benefits.

Here, appellant was employed by appellee, West Fraser South, Inc., as a forklift operator at a sawmill in Huttig, Arkansas. His primary responsibility was to pick up lumber from the yard with a forklift and load it on a conveyor chain for the “green stacker” to stack. It is undisputed that on February 5, 2002, appellant was attempting to cross a ditch by way of a 2' x 10' muddy board that was stretched across the ditch to prevent workers from having to get into the mud. Each end of the board was on a block of concrete. When he stepped onto the board, the board slipped off the concrete block causing him to fall and twist his knee.

The evidence introduced at the hearing included appellant’s testimony as well as the transcript of a tape-recorded statement he had made to an insurance claims adjuster on February 13, 2002. In the recorded statement, appellant said that he was injured while “coming off a break.” The recording included the following:

Q: Okay, can you tell me what happened that day and what you were doing?

A: I stepped on a board and the board buried in the mud and I fell sideways and twisted my knee.

Q: And was this board ... I don’t know exactly what you do. What’s your job title?

A: I’m a forklift operator.

Q: Okay. Were you on a break or were you going to get on the forklift.

A: I was fixing ... I was walking back over to get back on the forklift.

Q: And coming from where?

A: I went over there to talk to another guy that ... I was on ... I was coming off a break and I was walking back across and I stepped off of some concrete onto a place where we had been driving a forklift, and stepped on a board and it buried down in the mud and I spun and fell sideways and twisted my knee.

Q: Okay were you coming off of a break or the other guy was coming off a break?

A: I was coming off break.

Q: Does your job consist of just driving the forklift?

A: Yes, ma’am.

Q: So you actually hadn’t got back to your site to work? Correct?

A: No I hadn’t. I was within ten feet of my site of work.

Q: Okay. Okay, now let me see. You were on break, coming back from break, ah, about ten feet from your work site which is the forklift, stepped on a board that buried down in the mud that caused you to fall over onto your right side.

A: Yes ma’am.

Q: Landed flat on your right side ah, your knee twisted and it was an injury to your right knee. Correct?

A: Yes ma’am.

In appellant’s testimony at the hearing, he testified that he had returned from a scheduled 2:30 p.m. to 2:45 p.m. daily break (for which he was not required to clock out) and resumed working on the forklift. Within a few moments, the stacker unexpectedly broke down. Appellant went over to inquire of a co-worker how long the stacker would be down so he would know if he had time to refuel the forklift for the night-shift operator before his shift ended. The co-worker informed him that the stacker was already repaired. As appellant was returning to the forklift, he fell. He testified that he checked his watch the moment he fell as he knew he would have to know the time when he reported the incident, and it was approximately 3:05 p.m.

Adopting the opinion of the ALJ, the Commission found that appellant’s recorded statement was more credible than his testimony at the hearing and concluded that appellant was not performing employment services at the time of the knee injury and denied benefits. This appeal followed.

In reviewing decisions from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Smith v. City of Fort Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Id.

Arkansas Code Annotated section 11-9-102(4)(A)(I) (Supp. 2001) defines “compensable injury” as “an accidental injury causing internal or external 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. 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.

Here, appellant asserts that the Commission erred in finding that he failed to prove by a preponderance of the evidence that he was performing employment services at the time of his injury. Our supreme court in Collins and Pifer directed this court to focus our attention on what appellant was doing at the time of the injury. As stated above, the simple, straightforward test provides that an injury is compensable when it occurs “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.” Collins, 347 Ark. at 817, 69 S.W.3d at 18; Pifer, 347 Ark. at 857, 69 S.W.3d at 4. (Emphasis added.) “[T]he critical issue is whether the employer’s interests were being advanced either directly or indirectly by the claimant at the time of the injury.” Collins, 347 Ark. at 818, 69 S.W.3d at 19; Pifer, 347 Ark. at 858, 69 S.W.3d at 5.¹

The ALJ and the Commission concluded that appellant’s injury was not compensable because he was “coming off break” at the time of the injury. However, it is the activity occurring at the time of the injury, not the activity that preceeded it, that is relevant to the question of whether appellant was performing employment services. In Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002), this court held that an employee injured when she returned to her locker to secure her personal items before returning to work after a break was carrying out Wal-Mart’s purpose or advancing Wal-Mart’s interests. Following the standard set out by our supreme court in Collins and Pifer, appellant’s injury arose within the course of his employment.

At the time his injury occurred, appellant was crossing a board, placed across the ditch for that purpose, in order to return to his forklift and continue his workday. No further inquiry is necessary. Although we defer to the Commission’s factual finding that appellant’s recorded statement was more credible than his testimony at the hearing, and therefore, appellant was “coming off break” when the injury occurred, this fact does not determine compensability. We hold that appellant’s crossing the board in order to return to work was an activity that directly advanced his employer’s interests and therefore constituted employment services. Because appellant was performing employment services at the time of his injury, we reverse and remand for an award of benefits.

Reversed and remanded.

Hart, Robbins, Crabtree, andRoAF, JJ., agree. Pittman, C.J., Gladwin, Bird and Vaught, JJ., dissent.

1 In both Collins and Pifer, the supreme court specifically overruled “all prior decisions by the Arkansas Court of Appeals” to the extent that they were inconsistent with the holdings in Collins and Pifer. Collins, 347Ark. at 819,69 S.W3d at 20; Pifer, 347Ark. at 859,69 S/W3d