Pro Clean Janitorial Service v. A.J. Hinkle

ca01-868

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

PRO CLEAN JANITORIAL SERVICE

APPELLANT

V.

A.J. HINKLE

APPELLEE

CA 01-868

JANUARY 30, 2002

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. E911478]

REMANDED

Appellee A.J. Hinkle brought a workers' compensation claim against appellant Pro Clean Janitorial Service, alleging that he suffered a compensable injury to his lungs when he inhaled toxic chemicals while cleaning floors on August 25, 1999. The appellant controverted the claim, and after a hearing the Workers' Compensation Commission adopted the opinion of the Administrative Law Judge finding the injury to be compensable, and awarded medical benefits and attorney's fees. Pro Clean Janitorial now appeals.

For reversal, Pro Clean Janitorial argues that the Commission's decision is not supported by substantial evidence. Specifically, it contends that Mr. Hinkle's alleged injury was not compensable pursuant to Ark. Code Ann. § 11-9-102(5)(B)(iii) (Repl. 1996), because it was inflicted at a time when employment services were not being performed. Pro Clean Janitorial also argues that because the alleged injury occurred when Mr. Hinkle was

performing a task that he was not authorized to perform, it did not arise out of and in the course of his employment as required by Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996). We remand because of factual inconsistencies in the Commission's opinion.

When reviewing a decision from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm if supported by substantial evidence. Welch's Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A decision by the Workers' Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).

Mr. Hinkle testified that he began working for Pro Clean Janitorial on May 17, 1999. He was assigned to GNB Technology, where he worked for the entire duration of his employment. Mr. Hinkle stated that his duties included emptying trash, cleaning the locker room and bathrooms, and vacuuming. Another employee worked with Mr. Hinkle, and he was responsible for buffing and waxing floors, and cleaning showers. This employee was initially David Johnson, but he was later replaced by Mr. Hinkle's son, Danny.

Mr. Hinkle testified that, due to complaints about how the showers were being cleaned, he was instructed to find one of GNB's supervisors and have them inspect the showers after each cleaning. On these occasions, the person who cleaned the showers wouldfind Mr. Hinkle, and Mr. Hinkle would inspect them before final inspection by the GNB supervisor. This inspection process continued for about two or three months but was later discontinued.

Mr. Hinkle stated that although it was his son's job to clean the showers, there had been complaints about his son's work. Mr. Hinkle further testified that on several occasions his supervisor, Gene White, told him to do Danny's job. Mr. Hinkle indicated that before his injury occurred he had cleaned the showers with the same chemicals several times without incident.

On the date of the injury, Mr. Hinkle applied the chemicals and began scrubbing the shower floor. While scrubbing, he noticed white smoke and started coughing. His mouth and nose were burning, and he was having difficulty breathing. Mr. Hinkle left the shower area and washed his face at the sink, at which point the smell was "getting really bad." He went back to the shower and turned on two or three shower heads in attempt to rinse away the chemicals, but was overcome by the smell and smoke. At that point, he was able to stumble into the hallway and ask for help, and was transported to the hospital emergency room by GNB supervisor Byron Sigmon. Mr. Hinkle subsequently received prolonged medical treatment for reactive airway dysfunction syndrome.

Mr. Hinkle acknowledged in his testimony that he had never been trained with regard to how to clean the showers at GNB Technologies. However, he also testified that he had not been instructed not to clean the showers by anyone at Pro Clean Janitorial prior to his injury.

Gene White testified that at the time of Mr. Hinkle's injury, he was responsible for assigning and managing the work duties at GNB Technologies. He stated that Mr. Hinkle's job title was general cleaner, and that the floor specialist was responsible for cleaning the showers. Mr. White testified that at the time of the alleged incident on August 25, 1999, Mr. Hinkle was not responsible for cleaning the showers and had been told that cleaning the shower floors was not within his duties. Mr. White stated that he instructed Mr. Hinkle not to clean the shower floors because it was not within the scope of what he was trained to do. He further testified that depending on the facility, amount of residue, and type of tile, the cleaning of showers demands the application of certain, different chemicals, and that a respirator should be used.

Mr. White testified that it was Mr. Hinkle's son's responsibility to clean the showers daily and scrub them weekly. He indicated that this was a specialized duty, and stated:

This is a hands-on procedure, and unless one has been trained and instructed and follows directions, i.e., does not do certain things, the resulting effect can be pretty horrific. For that reason, many safeguards are put in place prior to anyone being allowed to clean the showers. That is why floor specialists are instructed differently than general cleaners; there is a separation for obvious reasons. These reasons concern the safety and welfare of not only the person doing the job, but also that of others in that environment.

Mr. White acknowledged that there had been some deficiencies in Danny's work, but he maintained that he never told Mr. Hinkle to pick up his son's slack and clean the showers. According to Mr. White, after the incident occurred Mr. Hinkle told him, "I guess I really screwed up," and he responded, "Yeah, bud, I think you did."

Patrick Smith, President of Pro Clean Janitorial, also testified. He reiterated that Mr. Hinkle's duties were general sanitation only and that he was not responsible for cleaning showers. Mr. Smith stated that a few days after the accident Mr. Hinkle told him "that he guessed he had screwed up."

Byron Sigmon testified that his duties at GNB Technologies did not include supervising anyone from Pro Clean Janitorial, but that at one time he was required to inspect and sign off on the showers. He stated that another person was usually there with Mr. Hinkle, but that on the day that he took Mr. Hinkle to the hospital, he did not think Mr. Hinkle's son or anyone else was present. Mr. Sigmon testified that as far as he could tell from observing Mr. Hinkle in the past, he did his job adequately and there were very few complaints.

The other GNB Technologies supervisor, Grady Rice, testified that when he inspected the showers Mr. Hinkle was the person who contacted him and asked for the inspection. He also testified that he thought that Mr. Hinkle was the only Pro Clean Janitorial employee present on the day of the incident, that he was not sure if anyone finished the job of cleaning the showers on that day, and that he tried to contact Mr. Hinkle's wife and son to tell them that Mr. Hinkle was in the hospital.

Pro Clean Janitorial's first argument on appeal is that Mr. Hinkle's alleged injury was not compensable because when it occurred he was not engaged in employment services. It cites Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001), where we stated that the inquiry in such cases involves deciding whether the accidentoccurred within the time and space boundaries of the employment, when the employee is carrying out the employer's purpose or advancing the employer's interest directly or indirectly. We also held that whether a worker was performing employment services within the course of employment depends on the particular facts and circumstances of each case, and that the controlling test is whether the employee is engaged in the primary activity that he was hired to perform or in incidental activities that are inherently necessary for the performance of the primary activity. Id. We held that while no single feature of the employment relationship is determinative, the following factors may be relevant:

Whether the accident occurs at a time, place, or under circumstances that facilitate or advance the employer's interests;

Whether the accident occurs when the employee is engaged in activity necessarily required in order to perform work;

Whether the activity engaged in when the accident occurs is an expected part of the employment;

Whether the activity constitutes an interruption or departure, known by or permitted by the employer, either temporally or spatially, from work activities;

Whether the employee is compensated during the time that the activity occurs;

Whether the employer expects the worker to cease or return from permitted non-work activity in order to advance some employment objective.

Id. at 339-40, 49 S.W.3d at 138-39 (citations omitted). Pro Clean Janitorial asserts that, applying the above principles, the Commission erroneously found that the alleged injury was compensable.

Appellant asserts that it was undisputed that by cleaning the showers Mr. Hinkle was engaging in a dangerous activity for which he was not trained. It further asserts that he had been forbidden from cleaning the showers and that this activity did not advance its interests;to the contrary, it was against its interests because it put Mr. Hinkle and employees of GNB Technologies, who take daily showers, at risk. Appellant submits that not only was Mr. Hinkle not engaged in his primary duties at the time of the alleged accident, but these duties were not incidental to his work or inherently necessary because he had specifically been instructed not to clean showers. Appellant argues that his departure from his assigned duties was not known or permitted by his employer, as evidenced by Mr. Hinkle's subsequent admission that he "screwed up." Under these circumstances, Pro Clean Janitorial argues that there was no substantial evidence that Mr. Hinkle was engaged in employment services and the Commission's decision must be reversed.

We hold that there is an inconsistency in the Commission's opinion that requires a remand for clarification. In the "Findings & Conclusion" section of the Commission's opinion, it states, "That the claimant has proven by a preponderance of the credible evidence that he was not engaged in a prohibited activity at the time of his injury. See discussion above." However, in the above discussion of the Commission's opinion it states that Mr. Hinkle's "activity was a mere disobedience of an order as to a detail of the work but that his activity was well within the sphere of his employment." Perhaps these irreconcilable statements are the result of inadvertence or a typographical error; however, whatever the reason, we must remand the case for the Commission to clarify its finding as to whether or not Mr. Hinkle was engaged in a prohibited activity at the time of his injury.

Appellant's remaining argument is that, because the activity of cleaning showers was strictly forbidden and Mr. Hinkle violated a known policy, Mr. Hinkle's alleged injury didnot arise out of and in the scope of his employment. This issue will be resolved on remand by the Commission's determination of whether or not cleaning the showers was prohibited.

Remanded for clarification.

Neal and Baker, JJ., agree.