Henry Pifer v. Single Source Transportation

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISIONS I and II

HENRY PIFER

APPELLANT

V.

SINGLE SOURCE TRANSPORTATION

APPELLEE

CA01-86

July 5, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E909634]

REVERSED AND REMANDED

Appellant, Henry Pifer, was employed by appellee, Single Source Transportation, as a short-haul truck driver. While returning to his truck after using a restroom located in appellee's office building, appellant was struck and injured by a pickup truck while crossing appellee's gated terminal area. He appeals the decision of the Arkansas Workers' Compensation Commission denying his claim for benefits after finding that he was not performing employment services at the time of his injury. We reverse and remand this case to the Commission for further consideration of appellant's claim for benefits in light of last week's decision in Matlock v. Arkansas Blue Cross Blue Shield, CA 00-1153 (Ark. App. June 27, 2001).

On June 7, 1999, after delivering a load to Taylor, Louisiana, appellant arrived back at appellee's gated terminal area in Foreman, Arkansas. After driving to the fuel island and

refueling the truck, he parked the truck in the parking area, leaving the truck running and locking the brakes down, so that he could run into the office building to use the restroom "because [he] had to go to the bathroom very bad." As he returned to the truck "to do [his] paperwork, [his] log book, and secure the truck -- safety check," he spoke to two fellow drivers at the door of the shop, approximately seventy-five feet from his truck. While walking back to the truck, he sustained injuries when he was hit in the back and knocked to the ground by a three-quarter ton pickup truck driven by a fellow employee.

After concluding that appellant sustained an injury arising out of and in the course of his employment, the administrative law judge ordered appellee to pay appellant temporary-total-disability benefits, all reasonably-related medical expenses, and his attorney's fee. On appeal to the Commission, however, the Commission reversed the administrative law judge, finding that appellant was not performing employment services at the time of injury. In reaching its decision, the Commission remarked that the "personal comfort doctrine" was no longer the law in Arkansas and stated that when appellant was walking back to the truck after using the restroom, he was not engaged in an "activity inherently necessary for the performance of the job he was hired to do as a trucker."

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 beingperformed ...." Ark. Code Ann. § 11-9-102(4)(B)(iii) (1999). Last week, this court is handed down a decision in Matlock v. Arkansas Blue Cross Blue Shield, CA 00-1153 (Ark. App. June 27, 2001), that set 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 finding that appellant was not engaged in employment services.

Reversed and remanded.

Bird, Neal, and Crabtree, JJ., agree.

Vaught and Roaf, JJ., dissent. See Matlock v. Arkansas Blue Cross Blue Shield, CA 00-1153 (Ark. App. June 27, 2001)(Vaught and Roaf, JJ., dissenting).