Collins v. Excel Specialty Products

Olly NEAL, Judge. Appellant,

Wendy Collins, appeals from the decision of the Workers’ Compensation Commission, (hereinafter Commission) denying appellant’s claim. The Commission adopted the administrative law judge’s decision finding that appellant was not performing employment services at the time of her injury. We reverse and remand this case to the Commission for further consideration of appellant’s claim in light of our decision last week in Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001).

Appellant was employed with appellee, Excel Specialty Products, as a production worker. Her job consisted of carving blocks of beef into beef steaks of sizes by weight as specified by her employer. Her production work included incentive pay for a certain production quota and the employees on her production line were required to clock in and out on a time clock. Appellant and her co-workers were given fifteen-minute breaks in the morning and in the afternoon and a thirty-minute lunch break.

On November 2, 1999, sometime between the morning break and the lunch break, appellant left the production line to go to the bathroom for the purpose of urination. Between the production line and the restroom, appellant suffered a fall sustaining a fracture to her right wrist and arm. This fall and resultant injury occurred while appellant remained “on the clock.”

The Administrative Law Judge denied appellant’s claim reasoning as follows:

In the present case, the circumstances surrounding the claimant’s alleged injury are not in dispute. The claimant testified that the respondent allowed employees to leave the line and go to the restroom whenever necessary and without “clocking out.” She stated that the alleged accident and injury occurred after she had left her work station and while she was actually on her way to the restroom to relieve herself.

Clearly, at the time of her alleged accident and injury, the claimant was not engaged in the performance of any employment tasks which she had been specifically assigned by her employer, nor was she engaged in any activity which would direcdy benefit or advance the interests of her employer. Nor would her actions be considered inherently necessary for the performance of her required tasks. At most, her actions would only indirectly benefit her employer. Under the Court’s ruling in Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), this is not sufficient to cause the activity to be considered “employment services.”

Based upon existing precedent, I am compelled to find that the claimant’s alleged accident and injuries occurred at a time when she was not performing “employment services” as required by Ark. Code Ann. § 11-9-102 (5)(B)(iii). Therefore, her alleged injury cannot be considered a “compensable injury” within the meaning of the Act.

A “compensable injury” is defined as “[a]n accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death.” Ark. Code Ann § 11-9-102(4)(A)(i) (Supp. 1999). “Compensable injury,” however, does not include an “[i]njury which was inflicted upon the employee at a time when employment services were not being performed....” Ark. Code Ann. §11-9-102(4)(B)(iii)(1999). Last week, this court handed down a decision in Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001), that sets forth a list of factors to be considered when determining whether an employee is engaged in employment services. Because the Commission did not have the Matlock decision at its disposal when deciding whether appellant was performing employment services, we remand this case so that, after considering the factors listed in Matlock, the Commission may reconsider its holding that appellant was not engaged in employment services.

Reversed and remanded.

Stroud, C.J. and Hart, Bird, Crabtree and Baker, JJ., agree. Pittman, Jennings, and Robbins, JJ., dissent.