Olsten Kimberly Quality Care v. Pettey

OLSTEN KIMBERLY QUALITY CARE v. Cheri PETTEY

CA 96-77                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
               Opinion delivered December 23, 1996


1.   Workers' compensation -- review of administrative agency's
     decision -- interpretation of statute by agency highly
     persuasive. -- The Workers' Compensation Commission is an
     administrative agency, and, as a general rule, reviewing
     courts recognize that administrative agencies are better
     equipped by specialization, insight through experience, and
     more flexible procedures than are courts to determine and
     analyze legal issues affecting their agencies; therefore,
     while not conclusive, the interpretation of a statute by an
     administrative agency is highly persuasive. 

2.   Workers' compensation -- traveling to patient's homes was
     essential to service being provided -- "performing employment
     services" covered appellee on her way to patient's home. -- 
     Because traveling was an inherent and necessary incident of
     the appellee's required employment activity of delivering
     nursing services to patients at their homes, the appellee was
     performing employment services while en route from her
     employer's office to the patient's home; "performing
     employment services," in the context of Ark. Code Ann.  11-0-
     102(5)(B)(iii)(Repl. 1996), includes the performance of those
     functions that are essential to the success of the enterprise
     in which the employer is engaged; the Workers' Compensation
     Commission did not err in concluding that the appellee was
     performing employment services while en route from the
     employer's office to the patient's home.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Laser, Wilson, Bufford & Watts, P.A., by: Frank B. Newell, for
appellant
     The Whetstone Law Firm, P.A., by:  Robert H. Montgomery, for
appellee.

     James R. Cooper, Judge.
     The appellee in this workers' compensation case was employed
by the appellant as a nurse's assistant.  Her duties required her
to care for patients in their homes.  She was compensated according
to the time she actually spent in each patient's home.  She used
her own vehicle to travel to the homes but she received no wages
for the time spent travelling and was not reimbursed for travel
expenses.  On April 21, 1994, the appellee was injured in an
automobile accident while en route from the appellant's offices to
the home of her first patient of the day.  The appellee filed a
claim for workers' compensation benefits and, on stipulated facts,
the Commission held that the appellee's accident constituted a
compensable injury under the Arkansas workers' compensation law as
amended by Act 796 of 1993.  From that decision, comes this appeal.
     For reversal, the appellant contends that the Commission erred
in concluding that the appellee was injured at a time when
employment services were being performed.
     Act 796 of 1993 made sweeping changes to the Arkansas workers'
compensation law.  Among those changes was the redefinition of
"compensable injury" so as to exclude injury which was inflicted on
the employee at a time when employment services were not being
performed.  Ark. Code Ann.  11-9-102(5)(B)(iii) (Repl. 1996).  In
the case at bar, the Commission reasoned that because the
appellee's duties necessarily involved travel exceeding travel to
and from a regular place of employment, the appellee was performing
employment services at the time of her accident.
     This is a case of first impression concerning the meaning of
"performing employment services" under  11-9-102(5)(B)(iii). 
Arkansas Code Annotated  11-9-1001 (Repl. 1996) provides that:
          The Seventy-Ninth General Assembly realizes
          that the Arkansas workers' compensation
          statutes must be revised and amended from time
          to time.  Unfortunately, many of the changes
          made by this act were necessary because
          administrative law judges, the Workers'
          Compensation Commission, and the Arkansas
          courts have continually broadened the scope
          and eroded the purpose of the workers'
          compensation statutes of this state.  The
          Seventy-Ninth General Assembly intends to
          restate that the major and controlling purpose
          of workers' compensation is to pay timely
          temporary and permanent disability benefits to
          all legitimately injured workers that suffer
          an injury or disease arising out of and in the
          course of their employment, to pay reasonable
          and necessary medical expenses resulting
          therefrom, and then to return the worker to
          the work force.  When, and if, the workers'
          compensation statutes of this state need to be
          changed, the General Assembly acknowledges its
          responsibility to do so.  It is the specific
          intent of the Seventy-Ninth General Assembly
          to repeal, annul, and hold for naught all
          prior opinions or decisions of any
          administrative law judge, the Workers'
          Compensation Commission, or courts of this
          state contrary to or in conflict with any
          provision in this act.  In the future, if such
          things as the statute of limitations, the
          standard of review by the Workers'
          Compensation Commission or courts, the extent
          to which any physical condition, injury, or
          disease should be excluded from or added to
          coverage by the law, or the scope of the
          workers' compensation statutes need to be
          liberalized, broadened, or narrowed, those
          things shall be addressed by the General
          Assembly and should not be done by
          administrative law judges, the Workers'
          Compensation Commission, or the courts.

The legislature also changed the law so as to require the
Commission and the courts to construe the Act "strictly," Ark. Code
Ann.  11-9-704(c)(3) (Repl. 1996), rather than "liberally in
accordance with the chapter's remedial purposes" as was the law
prior to the 1993 amendment.
     The Workers' Compensation Commission is an administrative
agency, Ward School Bus Mfg., Inc. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977), and, as a general rule, reviewing courts
recognize that administrative agencies are better equipped by
specialization, insight through experience, and more flexible
procedures than are courts to determine and analyze legal issues
affecting their agencies.  Arkansas Dept. of Human Services v.
Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995); see Central Maloney,
Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984).  Therefore,
while not conclusive, the interpretation of a statute by an
administrative agency is highly persuasive.  Technical Services of
Arkansas, Inc., v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995). 
We are persuaded by the Commission's reasoning in the case at bar.
     In reaching its conclusion, the Commission reasoned that,
because traveling was an inherent and necessary incident of the
appellee's required employment activity, the appellee was
performing employment services while en route from her employer's
office to the patient's home.  We agree.  Although we recognize
that the appellee was not directly compensated for driving to
patients' homes, the payment of compensation is not conclusive to
the question of whether employment services are being performed. 
For example, many workers, such as salesmen, are paid on the basis
of commissions, but it is abundantly clear that a salesman who is
attempting to make a sale is performing an employment service
without regard to whether his attempt is successful.
     It is likewise clear that delivering nursing services to
patients at their homes is the raison d'ˆtre of the appellant's
business, and that traveling to patients' homes is an essential
component of that service.  Whatever "performing employment
services" may mean in the context of Ark. Code Ann.  11-0-
102(5)(B)(iii), it must include the performance of those functions
which are essential to the success of the enterprise in which the
employer is engaged.  Consequently, we hold that the Commission did
not err in concluding that the appellee was performing employment
services while en route from the employer's office to the patient's
home.
     Affirmed.
     Mayfield, Rogers, and Neal, JJ., agree.
     Jennings, C.J., and Stroud, J., dissent.

=================================================================

            John E. Jennings, Chief Judge, dissents.


     The issue in this case is one of law because the facts were
stipulated and are undisputed.  Although we have always deferred to
the Commission when it decides a question of fact, neither this
court, nor the supreme court, has deferred to the Commission when
the issue was the interpretation of a substantive workers'
compensation statute.
     It has long been the law in this state, as well as in most
every other state, that an injury is compensable if it was one
"arising out of and in the course of employment."  See, e.g.,
Barrentine v. Dierks Lumber & Coal Co., 207 Ark. 527, 181 S.W.2d 485 (1944); American Red Cross v. Wilson, 257 Ark. 647, 519 S.W.2d 60 (1975).  An enormous body of case law has developed interpreting
this phrase and in most every instance the interpretation has been
guided by the familiar rule that workers' compensation laws are
remedial and to be liberally construed.  
     Act 796 of 1993 made, as the majority says, "sweeping changes
to the Arkansas Workers' Compensation Law," among them a require-
ment that the act be "strictly construed."  Ark. Code Ann.  11-9-
704(c)(3) (Repl. 1996).  A strict construction requires that the
language of the statute be narrowly construed.  Arkansas Conference
Assoc. of Seventh Day Adventist, Inc. v. Benton Cty. Bd. of
Equalization, 304 Ark. 95, 800 S.W.2d 426 (1990).  Strict construc-
tion requires that nothing is taken as intended which is not
clearly expressed.  Thomas v. State, 315 Ark. 79, 864 S.W.2d 835
(1993).  Strict construction is construction of a statute or other
instrument according to its letter, which recognizes nothing that
is not expressed, takes the language used in its exact and
technical meaning, and admits no equitable considerations or
implications.  Arkansas State Highway Comm'n v. Southwestern Bell
Telephone Co., 206 Ark. 1099, 178 S.W.2d 1002 (1944), (McFadden,
J., dissenting, quoting Black's Law Dictionary, 3rd ed. p. 413).
     Moreover, the basic rule of statutory construction, to which
all other interpretive guides must yield, is to give effect to the
intent of the legislature.  Graham v. Forrest City Housing
Authority, 304 Ark. 632, 803 S.W.2d 923 (1991).  In my view the
language of the act leaves no doubt that the General Assembly
intended the statute in issue to be narrowly construed.  Under a
strict construction of the statute the claimant here was injured
"at a time when employment services were not being performed." 
Under the stipulated facts she was using her own vehicle to travel
and would not begin earning wages until her arrival at the home of
her first patient.
     While the Commission's decision is, in the abstract, a
reasonable and sensible one and would be entirely supportable under
prior law, I do not believe that this injury is "compensable" under
current law.  The legislature has made its intention clear and I
would give effect to that intention.  It is, after all, the body
charged with the responsibility for making law.
     I am authorized to state that Judge Stroud joins in this
dissent.