Autozone, Inc., Employer's Insurance of Wausau, and Liberty Mutual Insurance Company v. Beth A. Biles

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION IV

AUTOZONE, INC., EMPLOYER'S INSURANCE OF WAUSAU, LIBERTY MUTUAL INSURANCE COMPANY

APPELLANT

V.

BETH A. BILES

APPELLEE

CA 02-818

MARCH 12, 2003

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F003353]

REVERSED

In this workers' compensation case, an Administrative Law Judge denied benefits to the appellee, Beth Biles, for her husband's death. The Commission reversed the ALJ and found that the decedent's death occurred while he was performing employment services. On appeal, the appellant, Autozone, Inc., maintains that the Commission improperly defined "employment services" and/or misapplied the exceptions to the "going and coming" rule. Alternatively, appellant claims that substantial evidence does not support the underlying death claim. We reverse.

The decedent, Clay Biles, began working for Autozone in August of 1998. Before advancing to store manager for Autozone in Osceola, Arkansas, Biles worked as an hourly employee at Autozone in Paragould, Arkansas. On August 2, 1999, at approximately 6:55 a.m., Biles died in a one-car accident on Highway 139 near Monette, Arkansas, while traveling to work. He was driving his personal vehicle. At the time of the accident, Biles worked exclusively at the Osceola store,

although he lived an hour away in Paragould. On his daily commute, Biles drove through Monette, Arkansas, which is approximately a thirty-minute drive from Osceola. Biles was expected to report to work at 7:30 on the morning of his accident.

When reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission, and we affirm that decision if it is supported by substantial evidence. Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mays v. Alumnitec, Inc., 76 Ark. App. 274, 64 S.W.3d 772 (2001). 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 conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). In making our review, we recognize that it is the function of 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).

For appellant's first point on appeal, it argues that the Commission improperly defined employment services and/or misapplied the exceptions to the going and coming rule. The going and coming rule ordinarily precludes recovery for an injury sustained while an employee is going to or returning from his place of employment. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). The rationale behind this rule is that an employee is not within the course of his employment while traveling to or from his job. Brooks v. Wage, 242 Ark. 486, 414 S.W.2d 100 (1967). However, there are several recognized exceptions to the going and coming rule. They are outlined in Jane Traylor, Inc. v. Cooksey, 31 Ark. App. 245, 792 S.W.2d 351 (1990) as follows:

(1) where an employee is injured while in close proximity to the employer'spremises; (2) where the employer furnishes the transportation to and from work; (3) where the employee is a traveling salesman; (4) where the employee is injured on a special mission or errand; and, (5) where the employer compensates the employee for his time from the moment he leaves home until he returns home.

Id. at 247, 792 S.W.2d at 352.

A compensable injury is defined by statute as an accidental injury causing internal or external physical harm to the body and arising out of and in the course of employment, which results in disability or death. Ark. Code Ann. § 11-9-102(4)(A) (Supp. 1999). The test for determining whether an employee was acting within the course of employment at the time of injury or death requires proof that the injury "occur within the time and space boundaries of the employment, when the employee is carrying out the employer's purpose or advancing the employer's interests directly or indirectly." Pettey at 385, 944 S.W.2d at 526-27.

In Pettey, supra, an employee, a nursing assistant, was required by her job to travel to patients' homes every day to provide medical services. She provided her own vehicle but was not reimbursed for travel expenses. On her way to a patient's home in Hot Springs Village, she was injured in a one-car accident. The supreme court upheld the finding by the Commission that her injuries were compensable as the going and coming rule did not apply. There, the court stated, "If the employee as part of his job is required to bring with him his own car, truck or motorcycle for use during his working day, the trip to and from work is by that fact alone embraced within the course of employment." Id. at 386, 944 S.W.2d at 527 (emphasis in original) (citation omitted). The reasoning behind this exception is that an employer, by requiring an employee to bring his vehicle to work, is reaching out beyond normal employment premises and making the vehicle part of the employment environment. Id.

Appellee maintains that her husband's death was compensable as he was required to bringhis vehicle to work to make daily deposits at the Union Planter's Bank in Osceola. Appellee suggests that the going and coming rule does not apply in this instance because Autozone required her husband to use his personal vehicle as an integral part of his job. Indeed, the Commission found, after remanding to the ALJ for a specific finding of fact on the issue, that Autozone required appellant to make bank deposits via his personal vehicle. However, we do not agree with this finding of fact, as we believe that the Commission misinterpreted the testimony. Biles's supervisor testified that Biles was only responsible for ensuring that a daily bank deposit was made. The supervisor stated that Biles himself was not required to make the deposit. Rather, Biles was allowed to delegate this duty to an hourly employee. Therefore, we believe that the Commission erred in finding that Biles was required to furnish his own vehicle for making bank deposits.

In any event, we hold that the Commission erred in finding that Biles was performing employment services at the time of his death. No evidence in the record suggests that Biles was doing anything other than driving to Osceola to report to work at 7:30 on the morning of the accident. None of the testimony suggests that Biles was making a bank deposit or transporting automobile parts that morning. In fact, Biles's supervisor testified that Biles was never required to transport any parts for Autozone.

We believe this case to be similar to Daniels v. Arkansas Dep't of Human Servs., 77 Ark. App. 99, 72 S.W.3d 128 (2002). In Daniels, supra, the employee worked as a social services aide. Her job required her to use her personal vehicle to transport foster-care clients on a daily basis. She was reimbursed for her mileage. She was expected to keep a cellular phone, provided by her employer, available at all times of the day to receive calls to transport clients. On the day of her car accident, Daniels signed out around noon, stopped by a client's home, and drove to her house for lunch. On her way back to the office, Daniels was injured in a car accident. She had not receiveda phone call or page during lunch and had claimed no mileage for her trip. We affirmed the Commission's decision to deny Daniels benefits and held that she was not performing employment services at the time of her injury. We stated:

[Daniels] was not engaged in the service of transporting clients when the accident occurred, nor had she received a call from appellee directing her to perform that service. She was thus not engaged in work-related travel. Instead, she was simply returning to the office after lunch when the accident took place. Because [Daniels] was going to the workplace, we cannot conclude that she was carrying out the employer's purpose or advancing the employer's interest, either directly or indirectly, when the accident occurred.

Id. at 103, 72 S.W.3d at 131. Likewise, in the instant case, Biles was not engaged in work-related travel when his accident occurred but was simply driving to work. At the time of the motor vehicle accident, Biles was not directly or indirectly advancing his employer's interests.

We also look to Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000), in reaching our decision. In Campbell, the employee worked as a finance manager, and his job duties included drafting contracts, handling financing, and completing paperwork associated with selling a car. He used the company car for business, took uncompleted paperwork home, and drove to places other than his office for business after hours. Campbell died in a one-car accident while traveling to work. We affirmed the Commission's finding that Campbell was not performing employment services at the time of his fatal accident. In doing so, we stated:

Although he had some [paperwork] in the car which he had worked on during the weekend, neither working on these contracts over the weekend nor transporting them in his car was something he was required to do as part of his job or even something [his employer] asked him to do. [Campbell's] journey itself was not part of the service, and [Campbell] was not required, as part of his job, to bring with him his own vehicle for use during the work day.

Id. at 40, 13 S.W.3d at 920.

In sum, we believe that the case at bar is similar to Daniels, supra, and Campbell, supra, butdistinguishable from Pettey, supra. Here, Biles's death occurred while he was on his way to the store in Osceola where he was to begin work at 7:30 a.m. If Biles's death had occurred while making a bank deposit or while transporting parts between stores, appellee's claim may have been compensable. However, even if Biles was in fact required to make bank deposits or transport parts between stores in his private vehicle, appellee's claim still fails as no such activity was being performed when the accident occurred. At the time of Biles's death, he was merely driving to work. This is a classic example of the type of accident that the Workers' Compensation Act will not compensate as it is precluded by the going and coming rule.

We need not address appellant's alternative argument as we reverse the Commission's decision based upon appellant's first point on appeal.

Reversed.

Baker and Roaf, JJ., agree.