Lawrence Q. Moore v. Helena/West Helena School Risk Management Resources

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

LAWRENCE Q. MOORE

APPELLANT

v.

HELENA/WEST HELENA SCHOOL RISK MANAGEMENT RESOURCES

APPELLEES

CA05-413

NOVEMBER 30, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F301229]

AFFIRMED

Andree Layton Roaf, Judge

Appellant Lawrence Moore, a school janitor, was injured when a chair broke as he sat down, causing him to fall to the floor. An Administrative Law Judge (ALJ) found that Moore's injury was not compensable because he was not performing employee services at the time of the injury. The Commission adopted the findings and decision of the ALJ. Moore appeals the Commission's decision, arguing that he was performing employee services when he was injured. We affirm.

Moore was a school janitor for the Helena/West Helena School District. At the hearing, he testified that, after taking out the trash from the school cafeteria at J.F. Wahl Elementary, he went back into the cafeteria and observed one of the cafeteria workers, Shirley Goings, attempting to shelve cans of food. Moore began to help Goings place the food items on shelves because she was short and the shelves were high. According to Moore, Goings was removing cans from food boxes, handing them to him, and then he was placing them on the higher shelves. When Moore worked his way down to the lower shelves, he claimed that he sat in a chair that broke as he sat down, causing him to fall heavily on his back. Moore stated that he got up and completed the shelving project and then notified the appropriate person of his injury, which occurred about 10:35 a.m.

Moore operated the snack bar in another area of the school daily that opened around 11:00 a.m. He would operate the snack bar until 1:15 p.m. Moore stated that he did whatever the employees would ask him to do in the kitchen, such as changing light bulbs, putting up canned goods, and maintaining kitchen equipment. According to Moore, he did not go into the kitchen with the purpose of eating, but he indeed planned to eat at some later point after he finished any chores that needed to be done, if he had time to do so before he had to open the snack bar. Moore testified that he never ate on the day that he was injured.

In a claim form, Moore wrote that he had gone to the cafeteria to eat when he was injured. The claim form asked Moore to briefly discuss the cause of injury, and Moore wrote, "The chair broke. I sat down to eat lunch. When I got the chair, the chair broke and I fell on my back." He never mentioned in the form that he was helping a co-worker shelve food items. On cross-examination, Moore stated that he "was not aware [he] had to put down exactly what was going on at the time." In a deposition, Moore was asked if he had started eating his lunch when the injury occurred. Moore replied, "No sir, not-well, I got some food afterwards, after we finished the canned goods." In the testimony at the hearing, Moore maintained that he never got any food.

Moore returned to work after reporting the injury and completed his duties that day. The next day he sought medical treatment and it was eventually determined that he had a herniated disc at L5-S1. Dr. Pillow, Moore's treating physician, stated that the disc was the result of acute trauma and he removed Moore from work. According to Moore, as a result of the injury, he experiences neck, left side, and low back problems. After placing Moore on light duty, Dr. Pillow took Moore completely off work on January 31, 2003. Moore testified that he was paid sick leave up until approximately April 1, 2003. Moore has been terminated by the school district.

Four cafeteria workers testified on Moore's behalf. Shirley Goings testified that Moore was helping her shelve cans when he sat down in a chair that collapsed, causing him to fall backwards. According to Goings, Moore sat down at the lunch table, and when he saw her having difficulty stocking the shelves, he began to help her. Goings stated that Moore was not eating when he beganhelping her.

Linda Bryant, another cafeteria worker, testified that Moore was helping Goings put up food items when he sat down in a chair that collapsed. According to Bryant, the incident happened at approximately 10:30 in the morning. Bryant also stated that Moore had not started to eat anything. She testified that Moore usually took his break at this same time each morning.

Rose Foster, a cafeteria worker, testified that she was eating lunch in the lunchroom when Moore was injured. According to Foster, Moore was helping Goings put up food items, and as he sat down in the chair, it collapsed. Pauline Evans, also a school cafeteria worker, testified that Moore "was in the seat and he leaned back and fell on the floor." When asked if she could remember what Moore was doing at the time he injured himself, she stated that she could not recall. Evans was also unsure whether Moore was eating at the time the chair fell.

Phyllis Ann Jones, an employee of the Helena/West Helena School District, testified that her records showed that Sysco, the food supply company, delivered food to the cafeteria at Wahl Elementary on November 19, 2002. This contradicted the testimony of Moore, who stated that Sysco had made a delivery on the day he was injured, which was November 21, 2002.

Brenda Sellers, the claims adjuster for Risk Management Resources, testified that she talked to Moore about the incident and obtained a statement from him on February 4, 2003. Sellers informed Moore that Risk Management Resources would no longer pay any further benefits on his claim. The claim had been accepted from November 21, 2002, to January 31, 2003. She explained that the claim was not compensable, because Moore was eating lunch and not engaged in employment services at the time that he was injured. According to Sellers, Moore became argumentative and indicated to her that he was simply eating a snack when the chair broke. Sellers testified that Moore did not tell her anything about shelving food items.

Respondent's Exhibit One was a tape recorded conversation between Moore and Melanie Tipton, an employee of Risk Management Resources, that took place on January 31, 2003. In this conversation, Moore stated that "[a] chair broke just as I sat down to eat lunch."

The administrative law judge held that Moore failed to prove by a preponderance of the evidence that he sustained a compensable injury, and the opinions stated that "[t]he evidence reflects that [Moore] was not performing employment services when he fell while sitting in a chair." Moore appealed this ruling, and the Workers' Compensation Commission affirmed and adopted the findings of the administrative law judge. Moore now appeals this decision.

Moore's first argument is that the Commission erred in ruling that he was not performing employment services at the time of the injury because the decision is not supported by substantial evidence. In reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commission's findings, and we affirm if substantial evidence supports the decision. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding. Id. If reasonable minds could reach the Commission's conclusion, we must affirm the Commission's decision. Id. We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the Commission's conclusions. Id.

The Commission, as fact finder, must resolve any conflicts in evidence. Express Human Res. III/Spirit Homes, Inc. v. Terry, 61 Ark. App. 258, 968 S.W.2d 630 (1998). The Commission is not required to believe the testimony of the claimant or any other witness. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000). The determination of the credibility of the witnesses and the weight to be given their testimony are matters exclusively within the province of the Commission. Id.

For Moore to establish that he sustained a compensable injury as a result of a specific incident, he had the burden to prove that he was in the course and scope of his employment at the time of the incident. See Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002). An injury is not compensable if it "was inflicted upon the employee at a time when employment services were notbeing performed ...." Ark. Code Ann. § 11-9-102(4)(B)(iii). Employment services are performed when the employee does something that is generally required by his or her employment. Smith v. City of Fort Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004). This court uses the same test to determine whether an employee was performing employment services as it does when determining whether an employee was acting within the course of employment. Id. 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. Id.

Moore asserts that his testimony and the witnesses' testimony that he was helping to shelve food items when he was injured is entitled to great weight. The ALJ and the Commission did not find this testimony to be credible and noted that Moore's demeanor along with the overwhelming inconsistencies in Moore's testimony gave reason to doubt his credibility.

In a recorded statement on January 31, 2003, Moore stated that "[a] chair broke just as I sat down to eat lunch." Also, in filling out two separate claims forms, Moore never asserted that he was helping to shelve food items at the time he was injured. In Form AR-C, Moore wrote that he "was in the cafeteria on break and [sat] in a chair and it broke, causing [him] to hit the floor injuring his back." In the AR-N form, Moore wrote, "I [sat] down to eat lunch when I got in the chair the chair broke and I [fell] on my back." Moore had also indicated to Sellers that "he was simply eating a snack" when the chair broke. On four different occasions, Moore never indicated that he was putting up food items or performing any type of employment services for the school district at the time of the injury. The first time Moore mentioned that he was helping Goings place food items on a shelf at the time of the injury was at his deposition. At the hearing, Moore testified that he never ate any food and maintained that he was helping Goings shelve the items at the time of the injury.

Moore made a number of inconsistent statements and the ALJ and Commission did not find him to be a credible witness. While the ALJ's opinion simply narrates the testimony of Moore's witnesses without discussing their credibility, the ALJ does point to several somewhat minor inconsistencies between the witnesses and Moore's testimony. While the ALJ did not explicitly findthe four cafeteria workers to be not credible, it clearly gave great weight to the description of the accident initially reported by Moore, and no credence to the version presented by Moore and his witnesses after his claim had been controverted.

It is the function of the administrative law judge and the Commission to determine the credibility of witnesses and the weight to be given their testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001). Because of Moore's inconsistent statements at the hearing, deposition, in claim forms, and during recorded statements, reasonable minds could find that Moore was not credible and that he was not actually performing employee services at the time of his injury.

As an alternative argument, Moore asserts that, even if the Commission found that he was sitting down to eat lunch, he was still performing employment services. He compares his case to Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999). In Ray, a cafeteria employee was injured during a paid fifteen-minute break when she fell in a puddle of salad dressing as she was getting a snack from the cafeteria. Id. The record showed that even though the employee was on break, if she was approached by a student, the worker was required to leave her break and address the student's needs. Id. The Commission found that the claimant was not performing employment services at the time of the injury and denied benefits. Id. This court reversed the Commission's decision because the employee was pad for her fifteen-minute break and was required to assist student diners if the need arose. Id. According to Ray, when an employer is required to be available for work duties even on break, the employee is performing employment services. Id.

Moore asserts that he was on call in the cafeteria, because, even if he were eating lunch, he was required to render any assistance that may be needed as required by his job duties. Here, the record is not developed on this issue and it is unclear as to whether Moore was required to be available for work duties even on break. Moore stated that he was not required to stay in the cafeteria during his two-hour lunch break. According to Moore, he was not even required to stay on campus during his lunch break. He testified that he could eat anywhere in the building or evenoutside if he so desired. There was no testimony at the hearing to support a finding that Moore was essentially "on-call" during his lunch break. Because Moore was not even required to remain on the campus during his lunch break and could use his break hours as he saw fit, this case is clearly distinguishable from Ray. Once again, the Commission did not err in holding that Moore was not engaged in employment services at the time of his injury.

Moore raises five issues that we need not consider. The first issue concerns the calculation of Moore's average weekly wage. The second issue is whether Moore is entitled to temporary total disability benefits starting from January 31, 2003. The third issue is whether Helena/West Helena Risk Management Resources is required to pay for Moore's medical treatment after January 31, 2003, the date that they denied the claim. The fourth issue is whether Moore's attorney is entitled to attorney fees for a successful claim. The fifth issue is whether Moore is entitled to a setoff for a benefit paid by a third-party provider. The Commission did not address these issues below because it determined that the injury was not compensable. As we are affirming the Commission's decision, we need not address any of these issues.

Affirmed.

Crabtree and Baker, JJ., agree.