Sarah Ellenbecker and Alysa Ellenbecker, Minor Child v. Security Alert, Inc. and Legion Insurance Company, Death and Permanent Total Disability Trust Fund

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

SARAH ELLENBECKER and ALYSA ELLENBECKER, MINOR CHILD

APPELLANTS

V.

SECURITY ALERT, INC., and LEGION INSURANCE COMPANY DEATH and PERMANENT TOTAL DISABILITY TRUST FUND

APPELLEES

CA05-449

November 16, 2005

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. F200212]

AFFIRMED

Robert J. Gladwin, Judge

The Arkansas Workers' Compensation Commission (Commission), affirming the decision of the Administrative Law Judge (ALJ), found that appellants Sarah and Alysa Ellenbecker failed to prove by a preponderance of the evidence that John Ellenbecker (deceased employee of appellee Security Alert, Inc.) sustained a compensable injury in that there was insufficient evidence to show that he was performing employment services at the time of his fatal automobile accident. We affirm.

On August 8, 2001, Mr. Ellenbecker was installing home alarm systems for his employer, appellee Security Alert, Inc. He had completed two installations that morning, one in the Jacksonville, Arkansas, area and one in the Cabot, Arkansas, area and, according to the computer system that manages the installation job schedules, had no other jobs scheduled for the day. Upon leaving his last job site, Mr. Ellenbecker traveled north on Highway 5 and approached the intersection with West Lewisburg Road, at which time he was involved in

an automobile collision that resulted in his death. The accident occurred at 12:08 p.m. at a location that was described by several individuals, including his widow, appellant Sarah Ellenbecker, as "in front of their home."

The ALJ determined that Mr. Ellenbecker received injuries from which he subsequently died in an automobile accident that occurred in front of his residence during the noon hour with no correlating work order. She found that he was not performing employment services at the time of the accident and that, accordingly, there was no compensable injury as defined by Ark. Code Ann. § 11-9-102. Appellants appealed to the Commission, and the Commission affirmed and adopted the ALJ's opinion without further findings. From the Commission's decision comes this appeal.

Typically, on appeal to this court, we review only the decision of the Commission, not that of the ALJ. Daniels v. Affiliated Foods S. W., 70 Ark. App. 319, 17 S.W.3d 817 (2000). In this case, the Commission affirmed and adopted the ALJ's opinion as its own, which it is permitted to do under Arkansas law. See Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark. App. 338, 107 S.W.3d 876 (2003). Moreover, in so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. See Branum, supra. Therefore, for purposes of our review, we consider both the ALJ's order and the Commission's majority order.

In reviewing decisions 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 we affirm if the decision is supported by substantial evidence. Smith v. City of Fort Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004). If reasonable minds could reach the conclusion of the Commission, its decision must be affirmed. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). We cannot undertake a de novoreview of the evidence and are limited by the standard of review in these cases. Id. It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or not; and when it does so, its findings have the force and effect of a jury verdict. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). The Commission is not required to believe the testimony of any witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief; once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Logan County v. McDonald, __ Ark. App. __, __ S.W.3d __ (Apr. 06, 2005). Speculation and conjecture cannot substitute for credible evidence. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002).

Arkansas Code Annotated section 11-9-102(4)(A)(i) defines "compensable injury" as "[a]n accidental injury causing internal or external harm ... arising out of and in the course of employment...." Employment services are performed when the employee does something that is generally required by his or her employer. Collins v. Excel Specialty Prods., 347 Ark. 811, 69 S.W.3d 14 (2002); Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). We use the same test to determine whether an employee was performing "employment services" as we do when determining whether an employee was acting within "the course of employment." Collins, supra; Pifer, supra. 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. Collins, supra; Pifer, supra.1

Here, the appellants assert that the Commission erred in finding that they failed to prove by a preponderance of the evidence that Mr. Ellenbecker was performing employment services at the time of his injury. It is undisputed that Mr. Ellenbecker was driving his own vehicle at the time of his accident; the issue is the determination of where he was going at the time the accident occurred, on his way home for lunch or to another job site in Austin, Arkansas, to install smoke detectors in a home where he had previously installed a security system. Although this "job" likely would have shown up on the computer system as "completed," it was apparently not out of the ordinary for installers to go back to jobs for certain follow-up tasks. They were paid by the job as a whole, not by how many trips it took to complete the installation.

Brad Elsner, a friend of Mr. Ellenbecker and then branch manager for the Security Alert Little Rock, Arkansas office,2 had hired Mr. Ellenbecker in May 2001 as a security-system installer. He testified at the hearing before the ALJ that, on the date of the accident, Mr. Ellenbecker had called him to discuss a mistake he had made on a job and told him he was on his way to the Jerry Davis residence in Austin, Arkansas, to finish a job on a system he had previously installed. Mr. Elsner's testimony was that it was a job that had been previously reported as completed, but his testimony was at times inconsistent as to exactly which job Mr. Ellenbecker was headed to or the specific customer's name. Mr. Elsner emphatically stated that Mr. Ellenbecker made no reference at all to stopping for lunch before proceeding to the next job site.

Appellant Sarah Ellenbecker was also employed by Security Alert at the time of the accident. She married Brad Elsner on August 5, 2002, just a few days before the first anniversary of her husband's death. She testified that on August 8, 2001, Mr. Ellenbecker also called her about the mistake, specifically that he had broken a door on the job. She explained that he told her he had to go from that job to Magnus Creek and then to Austin, Arkansas, to add the heat and smoke edition to their existing security system. She also explained that Mr. Ellenbecker was not in the habit of coming home for lunch, instead eating out at various fast food restaurants. She testified that she had been in Oregon the week before the accident, and being the one who did the grocery shopping for the home, there were no groceries in the house on the day of the accident, and regardless, if Mr. Ellenbecker had been coming home for lunch it would have been the first time that had ever occurred. Additionally, she asserted that it was unlikely that he was coming home at the time the accident occurred because the accident report showed that he was traveling at too great a speed to have made the turn into their driveway.

Tony Brown, the manager of the Memphis, Tennessee, branch of Security Alert, also testified at the hearing before the ALJ. He testified that he oversaw the day-to-day operations of the Little Rock branch office and that he reviewed both of the work orders that Mr. Ellenbecker completed that morning. He explained that the company computer system had no record or information that Mr. Ellenbecker was scheduled to work on any other job sites, either new or unfinished, on the afternoon that the accident occurred. He also testified that Mr. Elsner called him twice on the day of the accident, first to notify him of Mr. Ellenbecker's accident and then to tell him about the death. There was a memorandum dated August 13, 2001, summarizing phone conversations between Mr. Elsner and Mr. Brown that supposedly took place on August 10, 2001, and August 13, 2001; however, Mr. Elsnermaintained that he never spoke to Mr. Brown on August 13, 2001, because he was out of town in Northwest Arkansas and never set foot in the Little Rock office on that day. No phone records were introduced to clarify this issue.

Another issue with the memorandum is that, although it was dated August 13, 2001, a printout of Mr. Brown's computer screen showed that it was actually generated and revised on August 22, 2001. Mr. Brown was unsure as to the reason behind the discrepancy, but stated that someone, an unnamed woman, subsequently typed the memo from notes taken by him on August 13, 2001. There were also questions regarding when, or if, the memorandum was faxed to Mr. Elsner as Mr. Brown claimed. There was no fax cover sheet or confirmation introduced, nor was Mr. Ellenbecker's personnel file part of the evidence, which would arguably have had a copy of the memorandum included in it if Mr. Brown had sent it to the Little Rock branch office.

The actual contents of the memorandum were comprised of statements allegedly received from Mr. Elsner that, on the day of the accident, Mr. Ellenbecker had finished his work in Jacksonville, Arkansas, and Cabot, Arkansas, and then headed home for lunch prior to going to another job later in the afternoon. Appellants maintain that this was merely a self-serving document created by Mr. Brown for the benefit of his employer, the appellees, and that it directly contradicted all the credible evidence in the case and should not be viewed as substantial evidence. See Wal-Mart Stores, Inc. v. P.O. Market, Inc., 347 Ark. 651, 66 S.W.3d 620 (2002).

There were credibility issues with the testimony from both Mr. Ellenbecker's widow, now Mr. Elsner's wife, and Mr. Elsner himself. Clearly, it would be to their direct benefit if the workers' compensation claim had been allowed. Mr. Ellenbecker's widow and surviving daughter, the appellants in this case, were his direct beneficiaries. No phonerecords were ever produced to substantiate the testimony regarding the various phone conversations with Mr. Ellenbecker on the date of the accident.

Likewise, however, there was a credibility issue with Mr. Brown's testimony. He was a friend of Frank Benson, Jr., the owner of Security Alert, and his wife, nephew, and brother are also employed by the company.

It was noted that Highway 5 was an available route to Mr. Ellenbecker's next alleged job site, and the fact that the accident happened near his residence was merely an unfortunate coincidence. The appellants assert that the "traveling man" exception to the going and coming exclusion, which ordinarily precludes recovery for an injury sustained while an employee is going to or returning from work, should apply in this case. Appellants cite language from Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997), regarding Mr. Ellenbecker's travel responsibilities within his job duties:

[A]n employee is generally said not to be acting within the course of employment when he or she is traveling to and from the workplace. This "going and coming" rule ordinarily precludes recovery for an injury sustained while the employee is going to or returning from his place of employment. The rationale behind this rule is that an employee is not within the course of his employment while traveling to or from his job. There are, however, exceptions to this rule....

[O]ne of those recognized exceptions is where the journey itself is part of the service. It is well-settled law that "traveling men are generally within the course of their employment from the time they leave home on a business trip until they return, for the self-evident reason that the traveling itself is a large part of the job." 1 Arthur Larson, The Law of Workmen's Compensation § 16.01 (1996). Another example of travel being an integral part of the job is where the employee must travel from jobsite to jobsite, whether or not he or she is paid for that travel time. Id. § 16.23. As stated by Professor Larson:

[T]he fact that the employee is not paid for his travel time does not mean that the trip was not in the course of employment. Payment for time is only one of the evidences that the journey itself was part of the service[.]

An additional factor determinative of whether an employee's travel is within the course of employment is whether the employee is required to furnish his own conveyance. "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 isby that fact alone embraced within the course of employment." Id. § 17.51. The theory behind this principle of law is that the obligations of the job reach out beyond the premises, making the vehicle part of the employment environment and compelling the employee to submit to the everyday hazards associated with road travel, which he or she would otherwise be able to avoid. Id. § 17.52. Furthermore, such a situation is for the benefit of and service to the employer. Id.

Olsten, 328 Ark. at 385-86, 944 S.W.2d at 527 (emphasis added); see also Swearengin v. Evergreen Lawns, 85 Ark. App. 61, 145 S.W.3d 830 (2004); Daniels v. Ark. Dep't of Human Servs., 77 Ark. App. 99, 72 S.W.3d 128 (2002); Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000).

Because the Commission determined that Mr. Ellenbecker was traveling to his home without a work order, he was not performing employment services at the time of the accident and the situation fell squarely within the "going and coming" rule. See Swearengin, supra. The circumstances in the instant case are not consistent with any of the recognized exceptions. The accident took place north of Cabot, Arkansas. Appellee's base office is in Little Rock, Arkansas. Mr. Ellenbecker was not a salesman, and he was driving his own vehicle without being compensated for his driving time. He was compensated for travel expenses only if the assignment was located outside their general sixty-mile radius, and then at a flat rate. Additionally, he was paid by the job, not by the hour. It is undisputed that all work orders that Mr. Ellenbecker was scheduled to complete on August 8, 2001, had been completed as of the time the accident occurred. At the time of the accident, Mr. Ellenbecker was headed in the opposite direction from the location of the alleged afternoon job(s).

No substantiating evidence was ever produced regarding the various phone conversations Mr. Ellenbecker allegedly placed either to his wife or Mr. Elsner on the date of the accident. Neither was there any evidence regarding the supposed additional job to which he was headed at the time of the accident. The customer, allegedly a Mr. Jerry Davis, could have testified that Mr. Ellenbecker had been scheduled to install the heat and smokeedition to his existing system, and further confirm the fact that he never showed up as scheduled. There was no such testimony from Mr. Davis or any other customer.

This matter rests in large part on the determination of witness credibility. In our review, we defer to the Commission in determining the weight of the evidence and the credibility of the witnesses. Jones Truck Lines v. Pendergrass, __ Ark. App. __, __ S.W.3d __ (Apr. 6, 2005). The issue is not whether we may have reached a different conclusion or whether the evidence might have supported a contrary finding. Id. When we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, they are supported by substantial evidence. Because the Commission's opinion displays a substantial basis for the denial of relief, we affirm.

Affirmed.

Pittman, C.J., and Hart, J., agree.

1 In both Collins and Pifer, the supreme court specifically overruled "all prior decisions by the Arkansas Court of Appeals" to the extent that they were inconsistent with the holdings in Collins and Pifer. Collins, 347 Ark. at 819, 69 S.W.3d at 20; Pifer, 347 Ark. at 859, 69 S.W.3d at 5.

2 Mr. Elsner resigned from Security Alert in October 2001 amid allegations that he stole equipment from the company. He denies all such claims and maintains that the company owes him $1,800.