Fisher v. Poole Truck Line

Charles FISHER v. POOLE TRUCK LINE

CA 96-911                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                      Divisions III and IV
                 Opinion delivered May 14, 1997


     Workers' compensation -- appellant performing employment services when
     injured on return trip from taking physical examination -- Commission's
     denial of benefits reversed. -- Where appellant employee was denied
     workers' compensation benefits because the Commission found
     that he was not performing "employment services" when he was
     injured while transporting in his own automobile the results
     of a physical examination that appellee employer had required
     him to take before giving him a work assignment, the appellate
     court held that the Commission's finding was not supported by
     substantial evidence and reversed the decision; the Commission
     had found that appellantþs physical exam was wholly for the
     benefit and at the direction of appellee; further, the
     employment had commenced at the time the employee underwent
     the required exam; consequently, the appellate court
     concluded, appellant was performing employment services when
     he traveled from his employerþs premises to retake a urine
     test and was injured on the return trip.


     Appeal from the Workers' Compensation Commission; reversed.
     Davis & Holiman, by: Zan Davis, for appellant.
     Penix, Penix, Lusby & Nix, by: Robin Nix, for appellee.

     Andree Layton Roaf, Judge.
     The appellant, Charles Fisher, was employed as a truck driver
by the appellee, Poole Truck Line (Poole).  Fisher was denied
workersþ compensation benefits when the Commission found that he
was not performing þemployment servicesþ when he was injured while
transporting in his own automobile the results of a physical
examination that Poole had required him to take before giving him
a work assignment.  On appeal, Fisher argues that the Commissionþs
finding that he was not performing þemployment servicesþ at the
time of his accident is not supported by substantial evidence.  We
agree and reverse.
     On March 24, 1994, Fisher was injured when his automobile was
struck in the rear by a tractor-trailer truck.  Fisher ultimately
underwent fusion surgery for a herniated cervical disc as a result
of this accident.  Following the accident, Fisher continued on to
his destination, a truck terminal operated by Poole, his new
employer.  Fisher, a truck driver with some 26 years of experience,
had successfully completed a two-day orientation required by Poole
of its new drivers, which commenced on March 21st.  Poole had also
required Fisher to take the standard Department of Transportation
(D.O.T.) physical on the day before the accident.  On the morning
of the accident, Fisher had reported in at the Poole terminal to
receive a driving assignment, and had learned that a urine test he
had taken the day before as part of the D.O.T. physical had
revealed unacceptably high concentrations of protein, and as a
result, he would not be allowed to drive until he retook and passed
this urine test.  Although D.O.T. physicals are valid for two years
and Fisherþs last physical dated only from the previous March,
Poole had required him to take and pass a D.O.T. physical
administered by its doctor before assigning him a load.  Fisher
immediately drove to the doctorþs office and retook and passed the
urine test.
     Although not specifically ordered by Poole to bring back the
results of his physical, Fisher knew that by hand-delivering the
copy he received from the doctor, he would receive his driving
assignment.  Except for the two-day employee orientation for which
Poole paid Fisher, as a truck driver employed by Poole, he was only
to be paid according to the miles he drove.  
     After delivering the results of the urine test, Fisher went
home and on the next day sought treatment at an emergency room for
his injuries.  Subsequently, Fisher filed a civil suit against the
trucking company that struck him and also filed for workersþ
compensation from Poole.
     Poole denied Fisher workersþ compensation benefits, contending
that he was not an employee and that he was not performing
employment services at the time of the accident.  The
administrative law judge (ALJ) found that Fisher was an employee at
the time of the accident but that he was not performing employment
services and, therefore, the injury was not compensable.  On the
latter issue, which is the subject of this appeal, the ALJ
scrutinized the time, place, and the circumstances of the injury in
determining whether Fisher was performing þemployment services.þ 
The ALJ found dispositive the facts that Fisher was driving his own
vehicle, that the accident occurred off the employerþs premises,
and that the urine test result that Fisher was transporting was a
document that his employer had to have possession of before he
could begin to perform employment services.  The full Commission
affirmed and adopted the ALJþs findings of fact.  Fisher appeals
from the finding that he was not performing employment services. 
However, Poole does not appeal the finding that Fisher was an
employee at the time of his injury. 
     For reversal, Fisher argues that the Commissionþs finding that
he was not performing þemployment servicesþ at the time of the
accident is not supported by substantial evidence.
     As defined in the Workersþ Compensation statutes, a
þcompensable injuryþ means an þaccidental injuryþ arising out of
and in the course of employment.  Ark. Code Ann.  11-9-102
(5)(A)(i).  However,  11-9-102 further provides that þcompensable
injuryþ does not include an þ[i]njury which was inflicted . . . at
a time when employment services were not being performed  . . . .þ 
Ark. Code Ann.  11-9-102(5)(B)(iii).
     Fisher contends in essence that his trip from the terminal to
the company doctor to retake the urine test and his return to the
terminal with the results were employment services because they
were part of the orientation process for which he received payment. 
However, he conceded in his testimony that the orientation was
concluded by March 23rd and that all he did on March 23rd was take
the D.O.T. physical.
     Fisher further asserts that this case can be reversed under
the þdual-purpose doctrineþ exception to the þgoing-and-coming
rule,þ because his transporting the results of his physical
benefitted Poole by allowing them to immediately assign him a load.
     Poole argues that Fisherþs injury is not compensable because
it neither arose out of and in the course of employment nor
occurred at a time when employment services were being performed. 
However, Poole did not appeal the Commissionþs findings that Fisher
was an employee at the time he undertook the physical examination.
     Significantly, the Commission further found that the physical
examination was wholly for the benefit of Poole and at the
direction of Poole because Fisher already possessed a valid D.O.T.
physical certification at the time of employment.  In denying
benefits to Fisher, the Commission relied on Albert Pike Hotel v.
Tratnor, 240 Ark. 958, 403 S.W.2d 73 (1966), in which the supreme
court found that a claimant who was injured on the premises of the
Arkansas Health Department while in the process of obtaining a
health card to allow her to work as a cook for the respondent was
not entitled to benefits because she was not an employee.  However,
the court in Albert Pike did not address the issue of performing
employment services because it found from the evidence that Tratnor
was never employed by the respondent hotel, and we do not agree
that the decision was based significantly upon the time, place, and
circumstance of the injury.  Moreover, the supreme court has
recently determined that a home-care nurseþs assistant injured
while traveling from her employerþs office to the home of a patient
was performing employment services even though she used her own
vehicle and received no wages or travel expenses for the time spent
traveling to patientsþ homes.  Olsten Kimberly Quality Care v.
Pettey, 328 Ark. ___, ___ S.W.2d ___ (May 5, 1997).
     In the instant case, Fisher, an experienced and qualified
truck driver, was employed by Poole and arrived early on the
morning of March 24th for the purpose of driving a load for Poole. 
As pointed out by Fisher, driving a truck entails more than sitting
behind the wheel of a truck, and certain requirements are imposed
by the D.O.T. and by the trucking companies for reasons of safety. 
Fisher stated that some of these requirements included passing
written driving and physical examinations; performing daily
inspections of the truck; becoming qualified for hauling various
kinds of materials, including hazardous material; and the keeping
of accurate log books.  Here, the Commission found that Fisherþs
physical exam was wholly for the benefit of Poole and at the
direction of Poole.  This finding is consistent with Woodall v.
Brown and Root, Inc., 2 Ark. App. 106, 616 S.W.2d 781 (1981), in
which this court found that workersþ compensation was the exclusive
remedy for an employee injured during a physical exam conducted by
his employer for two reasons -- such examinations are wholly for
the benefit of the employer and the employment had commenced at the
time the employee underwent the required exam; both factors are
present in the instant case.  Consequently, Fisher was performing
employment services when he traveled from his employerþs premises
to retake the urine test and was injured on the return trip.
     Reversed.
     Bird, Neal, and Griffen, JJ., agree.
     Jennings and Pittman, JJ., dissent.


              John E. Jennings, Judge, dissenting.


     The issue here is whether the Commission's decision is
supported by substantial evidence.  A decision of the Commission is
supported by substantial evidence if reasonable minds could reach
the Commission's conclusion.  Farmland Ins. Co. v. Dubois, 54 Ark.
App. 141, 923 S.W.2d 883 (1996).  I cannot agree that the
Commission's decision is not supported by substantial evidence.  
     Two statutes are involved in this case.  Section 11-9-
102(5)(B)(iii) (Repl. 1996) excludes from the definition of
compensable injury any "[i]njury which was inflicted upon the
employee at a time when employment services were not being
performed...."  Section 11-9-704(c)(3) (Repl. 1996) requires that
"[a]dministrative law judges, the commission, and any reviewing
court shall construe the provisions of this chapter strictly."  On
these facts, and given the requirement that the law be strictly
construed, the Commission could reasonably find that Mr. Fisher was
not performing "employment services" at the time of his injury.
     I cannot agree that our decision here is governed by our
earlier decision in Olsten Kimberly Quality Care v. Pettey, 55 Ark.
App. 343, 934 S.W.2d 956 (1996), or the supreme court's subsequent
affirmance of that case found at 328 Ark. ___, ___ S.W.2d ___ (May
5, 1997).  In the first place the facts in Olsten Kimberly were
much more compelling.  There the claimant was a traveling nurse
employed by the respondent to provide nursing services to its
customers in their homes.  The claimant was injured in an automo-
bile accident that occurred as she was traveling between her
employer's offices and the home of her first patient for that day. 
In affirming the Commission's decision in that case that the
claimant was performing employment services at the time of her
accident, both this court and the supreme court relied upon the
facts that "delivering nursing services to patients at their homes
is the raison d'ˆtre of the appellant's business, and . . .
traveling to patients homes is an essential component of that
service."  Here, on the other hand, appellant was tentatively hired
as a truck driver.  He was injured while driving his personal
vehicle to deliver to appellee the results of the drug screening
that he was required to undergo before he could drive a truck. 
Delivery of those results was neither part of the job for which
appellant had been hired nor an activity that he had been directed
or even asked by appellee to undertake; indeed, the evidence showed
that such results were ordinarily transmitted by the laboratory to
appellee via the U.S. mail.  These facts do not even approach those
in Olsten Kimberly.  In the second place we were affirming the
Commission's award of benefits in Olsten Kimberly and in doing so
said we give some deference to the administrative agency's
interpretation of the statute.
     For these reasons I respectfully dissent.
     Pittman, J., joins in this dissent.