Peggy Jackson v. Pike County, Association of Arkansas Counties

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA05-485

NOVEMBER 16, 2005

PEGGY JACKSON

APPELLANT

V. AN APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION [F308900]

PIKE COUNTY

ASSOCIATION OF ARKANSAS

COUNTIES

APPELLEES AFFIRMED

Olly Neal, Judge

Appellant Peggy Jackson appeals from the Workers' Compensation Commission's (Commission) decision that affirmed the Administrative Law Judge's (ALJ) finding that she failed to prove by a preponderance of the evidence that the injury she sustained on July 8, 2003, occurred during a time when she was performing employment services. On appeal, Jackson asserts that (1) Act 796 and the decisions rendered thereafter have not abrogated the traveling salesman exception to the going and coming rule and (2) she was performing employment services which were inherently necessary for her job at the time she was injured. We affirm.

Appellant worked for the Pike County Sheriff's Office as a dispatcher. On July 8, 2003, she was in Little Rock attending a three-day training session sponsored by the Arkansas Crime Information Center (ACIC). Her attendance at this training was required and paid for by appellee. Appellant traveled to Little Rock in a police unit, and hotel accommodations were provided by appellee. Following her first day of training, appellantreturned to the hotel to study and do homework. She thereafter went to bed, but she was awakened at two or three in the morning by the smoke alarm in her room. She testified that she called the front desk but was told that she would have to deal with it herself. After pulling a chair over underneath the alarm, appellee climbed onto a dresser and removed the battery from the alarm. As she attempted to descend, she lost her footing and fell. She immediately began to experience pain in her hip and lower back.

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. Linton v. Arkansas Dep't of Corr., ___ Ark. App. ___, ___ S.W.3d ___ (Sept. 1, 2004). This court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal is not whether the appellate court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, the appellate court must affirm its decision. Kinnebrew v. Little John's Trucks, Inc., 66 Ark. App. 90, 989 S.W.2d 541 (1999). Where a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Clardy v. Medi-Homes LTC Serv. LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001).

Act 796 of 1993 defines a compensable injury as "[a]n accidental injury . . . arising out of and in the course of employment. . . ." Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002). A compensable injury does not include an "[i]njury which was inflicted upon the employee at a time when employment services were not being performed. . . ." Ark. CodeAnn. § 11-9-102(4)(B)(iii) (Repl. 2002). Act 796 does not define the phrase "in the course of employment" or the term "employment services." Pifer v. Single Source Transp., 347 Ark. 851, 856, 69 S.W.3d 1, 3 (2002) (citing Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997)). Therefore, our supreme court has interpreted the term "employment services" as performance of something that is generally required by an employer. Pifer, supra. Our courts use the same test to determine whether an employee is performing "employment services" as they do when determining whether an employee is acting within "the course of employment." Swearengin v. Evergreen Lawns, 85 Ark. App. 61, 145 S.W.3d 830 (2004). The test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer's interest directly or indirectly. Id.

On appeal, Ms. Jackson argues that the Commission erred in finding that the "traveling salesman" exception to the "coming and going rule" no longer applies under the new Act, and in finding that she was not performing employment services as required by her employer at the time of the injury. The Commission never specifically made the first finding. Rather, the Commission found that, at the time that the accident occurred, Ms. Jackson was not performing "employment services," and it denied benefits. In adopting the findings of the ALJ, the Commission determined that:

[We are] constrained to find that this claimant has failed to prove by a preponderance of the evidence that she was engaged in employment services at the time of her July 9, 2003, injury.

In making this finding, [we] recognize that the claimant's injury almost certainly falls within the "traveling salesman" exception on several occasions. See, e.g., Frank Lyon Company v. Oates, 225 Ark. 682, 284 S.W.2d 637 (1955). Although the courts have not explicitly rejected it since the passage of Act 796 of 1993, more recent holdings demonstrate that the traveling salesman exception will not protect a claimant from the employment services defense. See, e.g. Coble v. Modern Business Systems, 62 Ark. App. 26, 966 S.W.2d 938 (1998); Kinnebrew v. Little John's Trucks, Inc., 66 Ark App. 90, 989 S.W.2d 541 (1999). Therefore, the applicability of thetraveling salesman exception is immaterial to consideration of this claim.

An employee is generally not said to be acting within the course of employment when he is traveling to or from the workplace, and thus, the "going and coming rule" ordinarily precludes compensation for injuries sustained while an employee is going to or returning from his place of employment. Linton v. Arkansas Dep't of Corr., supra. The reason for this general rule is that all persons, including employees, are subject to the recognized hazards of travel to and from work in a vehicle. Id. However, there are exceptions to the "going and coming rule" where the journey itself is part of the employment service, such as traveling salespersons on a business trip and employees who must travel from job site to job site. Id. (citing Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000)). The court in Campbell also noted that whether an employer requires an employee to do something has been dispositive of whether that activity constituted employment services. Id.

In Cook v. ABF Freight Systems, Inc., ___ Ark. App. ___, ___ S.W.3d ___ (Oct. 6, 2004), the appellant was an overnight bid driver, who drove a fixed route from Little Rock to Dallas. Cook had made it to Dallas and had checked into the hotel room provided him by ABF to take his mandatory eight-hour rest break. On the following morning, Cook received a scheduled wake-up call so that he could make his route back from Dallas to Little Rock. When he got up and went to the bathroom, he was electrocuted as he reached for the light switch after having stepped in a puddle of water. The Commission determined that Cook was not performing employment services at the time of his injury. We affirmed that decision, holding that Cook was "off the clock"; that he was taking a mandatory eight-hour rest break when the accident occurred; and that there was no suggestion in the record that his planned use of the bathroom upon arising in the morning was in any respect different from his routinemorning preparations, whether he was on the road or at home, for his entry into the bathroom was for no reason other than to attend to his personal needs.

Likewise in the instant matter, Jackson was out of town on business for her employer when she was awakened in the middle of the night by the steady beep of a smoke alarm. Trying to get a good night's rest for her next day of class, she retrieved a chair so that she could climb onto a dresser and remove the battery from the alarm. As she descended from the dresser onto the chair, her foot slipped, and she fell. These facts do not indicate that appellant was performing employment services at the time of her injury. There is no evidence in this record that she was getting paid while she slept in the hotel or that a routine night's sleep was in any respect different from her usual preparations for a forthcoming work day. Therefore, in accordance with Cook, we hold that substantial evidence supports the Commission's finding that appellant was not performing employment services at the time of her injury and that, therefore, her injury was not compensable.

Affirmed.

Glover and Vaught, JJ., agree.