Webster v. Ark. Dep't of Human Servs.

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
Cite as 2017 Ark. App. 558
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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