Economy Inn & Suites and CCMSI v. Nimisha Jivan
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DIVISIONS III, IV & I
CA06-158
M ARCH 14, 2007
ECONOMY
CCMSI
INN
&
SUITES AND
APPELLANTS
V.
APPEAL FROM THE WORKERS’
COMPENSATION COMMISSION,
[NO. F304985]
SUBSTITUTED OPINION ON GRANT
OF REHEARING
NIMISHA JIVAN
APPELLEE
REVERSED AND REMANDED
S AM B IRD, Judge
In a previous opinion, Economy Inn & Suites v. Jivan, ___ Ark. App. ___, ___
S.W.3d ___ (Dec. 6, 2006), we affirmed the decision of the Workers’ Compensation
Commission finding that Nimisha Jivan was performing employment services at the time of
the accident that caused her death and awarding benefits to her statutory beneficiaries.1
Appellants filed a petition for rehearing. After careful reconsideration of this case, we grant
appellants’ petition and issue this substituted opinion reversing the decision of the Workers’
Compensation Commission.
Nimisha Jivan and her husband worked for appellant Economy Inn & Suites in Hope:
Nimisha was the assistant manager, and her husband was the manager. On February 17,
2003, Nimisha died as a result of smoke inhalation when a fire broke out at the hotel.
1
See Ark. Code Ann. § 11-9-527 (Repl. 2002).
Nimisha’s husband and two children claimed that the accident happened while Nimisha was
performing employment services and that they were entitled to death benefits pursuant to
Ark. Code Ann. § 11-9-527. Her employer and its insurance carrier, CCMSI, denied
benefits, claiming that Nimisha was not performing employment services at the time of the
accident.
All the evidence before the Commission in this case was submitted by the parties
through stipulations. The parties stipulated to the following facts:
[Nimisha Jivan] was employed as the assistant manager for the respondentemployer, and in that capacity she and her husband, the hotel manager, were
provided with a room in the hotel in which to live on the premises to carry out
their responsibilities as employees of the hotel; that on February 17, 2003, a
fire occurred at the hotel, causing [Nimisha’s] death; that [Nimisha] is
survived by her widower, Jack Jivan, and two minor children . . . . [T]hat on
February 17, 2003, [Nimisha] was off duty and was in the bathroom of the
hotel room provided by the respondent, changing her clothes to go to a gym to
exercise when a fire occurred at the hotel; that she was not able to escape the
fire and died as a result of smoke inhalation; that although [Nimisha] was off
duty at the time her death occurred, she and her husband were always
considered to be on call to address any hotel related issues, which is at least
one of the reasons she and her husband were provided a room in the hotel there
on the premises.
The administrative law judge found that Nimisha was engaged in employment
services at the time of her fatal injury and that her injury arose out of and in the course of her
employment, and he awarded benefits to her husband and two children. The Commission
adopted the decision of the law judge, including all findings of fact and conclusions of law.
Appellants filed this appeal.
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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. Sapp v. Phelps Trucking, Inc., 64 Ark. App. 221, 984 S.W.2d
817 (1998). 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. Gen. Elec. Railcar
Repair Servs. v. Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998). 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. Minnesota Mining & Mfg. v. Baker,
337 Ark. 94, 989 S.W.2d 151 (1999).
The pivotal issue in this case is whether Nimisha was performing employment
services at the time of her death. A compensable injury is defined in Ark. Code Ann. §
11-9-102(4)(A)(i) (Repl. 2002) as “[a]n accidental injury . . . arising out of and in the course
of employment. . . .” 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.
Code Ann. § 11-9-102(4)(B)(iii) (Repl. 2002).
While the statute does not define the terms “in the course of employment” and
“employment services,” the supreme court has held that an employee is performing
“employment services” when he or she is “doing something that is generally required by his
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or her employer[.]” Pifer v. Single Source Transp., 347 Ark. 851, 857, 69 S.W.3d 1, 4 (2002)
(quoting White v. Georgia-Pacific Corp., 339 Ark. 474, 478, 6 S.W.3d 98, 100 (1999)). We
use the same test to determine whether an employee is performing “employment services”
as we do when determining whether an employee is acting within “the course of
employment.” Id. 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 purpose
or advancing the employer’s interest directly or indirectly. Id.
Here, based solely upon findings that “[Economy Inn’s] purpose and interest was
advanced by [Nimisha’s] frequent and regular presence on the premises” and that Nimisha
was “on call” twenty-four hours a day, the Commission concluded that her estate had proven
by a preponderance of the evidence that she was engaged in employment services at the time
of her fatal injury. We disagree with the Commission.
We have held that an injury is not compensable where an employee is performing an
activity that is merely for the purpose of attending to his personal needs. In Cook v. ABF
Freight Systems, Inc., 88 Ark. App. 86, 194 S.W.3d 794 (2004), we held that a truck driver,
who was “off the clock” but “on-call” in a motel room provided by his employer and was
injured while turning on a light switch in the bathroom, was not performing employment
services where there was no evidence that his entry into the bathroom was for any reason
other than to attend to his own personal needs. In Kinnebrew v. Little John’s Truck, Inc., 66
Ark. App. 90, 989 S.W.2d 541 (1999), we affirmed the Commission’s decision that a shower
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was not inherently necessary for the performance of the job a trucker was hired to do. In
Kinnebrew, a truck driver who showered at a truck stop while he was off-duty but on the road
and awaiting further instructions from his dispatcher slipped and fell in the shower stall. We
held that he was not performing employment services because showering was not “inherently
necessary” for the performance of the job that he was hired to do. Id. at 92, 989 S.W.2d at
543.
In this case, Nimisha was in the bathroom changing clothes to go exercise, an activity
involving attention solely to her personal needs. The fact that she was on call in her living
quarters does not necessitate a finding that every activity in which she engaged was
inherently necessary to her job. Nimisha was certainly entitled to enjoy life in her home at
the hotel beyond her responsibilities as the hotel’s assistant manager. The parties’ stipulation
contained no evidence that she was required to remain on the premises at all times, or even
most of the time, for the benefit of her employer. We cannot see how changing clothes to
go exercise at a gym constituted an activity that carried out her employer’s purpose or
advanced its interest any more than any other personal activity in which an employee such
as Nimisha might have engaged while in her room at the hotel. Under the dissent’s
reasoning, employers would be required to extend workers’ compensation coverage to every
personal activity in which an employee such as Nimisha might have engaged while in her
room at the hotel, including cooking, eating, washing dishes, watching television, dancing,
sleeping, or falling out of bed. We disagree and hold that fair-minded persons with the same
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facts before them could not have reached the conclusion that Nimisha was performing
employment services at the time of her death, and we reverse the Commission’s decision
awarding benefits.
Reversed and remanded for the entry of an order consistent with this opinion.
P ITTMAN, C.J., and H ART, G LADWIN, M ARSHALL, and M ILLER, JJ., agree.
G LOVER, V AUGHT, and B AKER, JJ., dissent.
K AREN R. B AKER, dissenting. I dissent because the majority completely ignores the
applicable precedent relied upon by the Commission in awarding benefits and abandons our
standard of review of administrative decisions.
The Commission found that performing the
activity on the premises while on call was the critical focus of the analysis. In reaching its
decision, the Commission relied upon our opinion in Privett v. Excel Specialty Products, 76
Ark. App. 527, 69 S.W.3d 445 (2002). In Privett, we explained that the concept of
employment services encompasses the performance of incidental activities that are inherently
necessary for the performance of the primary activity. This court reasoned that the fact that
a worker is not directly compensated for the activity engaged in when an accident occurs is
not controlling as to whether the worker was performing employment services. Id. We
further recognized that an employee preparing his truck for a cross-country drive by
equipping it with items necessary for the efficient performance of his job was performing an
incidental activity that was inherently necessary for the performance of his primary
employment activity regardless of the fact that the employee was performing the tasks on his
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day off. Ray v. Wayne Smith Trucking, 68 Ark. App. 115, 4 S.W.3d 506 (1999) (cited in
Privett, 76 Ark. App. at 532, 69 S.W.3d at ___).
In reaching its decision, the Commission relied upon our reasoning in Privett and
applied its reasoning to the stipulations submitted by the parties. The entire case was
submitted on stipulated facts that included the following:
3.
Nimisha Jivan was employed as the assistant manager for the respondent
employer on February 17, 2003 and in this capacity she and her husband, who
was the hotel manager, were provided with a room in the hotel to live on the
premises to carry out their responsibilities as employees of the hotel.
4.
On February 17, 2003 Mrs. Jivan was off duty and was in the bathroom of the
hotel room provided by the respondent changing her clothes to go to a gym to
exercise when a fire occurred at the hotel and Mrs. Jivan was not able to
escape the fire and died as a result of smoke inhalation.
5.
Although Mrs. Jivan was off duty at the time her death occurred, the parties
agreed and stipulate that she and her husband were always considered to be oncall to address any hotel related issues, which is at least one of the reasons she
and her husband were provided a room in the hotel there on the premises.
From these stipulations, the ALJ and Commission distinguished Ms. Jivan’s situation
from the truck driver in Cook v. ABF Freight Systems, Inc., 88 Ark. App. 86, 194 S.W.3d 794
(2004), relied upon by the majority. They reasoned:
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The instant claimant, in contrast [to the claimant in Cook], was on the employer’s
premises at the time of her injury and was expected to reside on the premises for the
employer’s convenience. The respondent-employer clearly derived a significant
benefit from the claimant’s regular and continual presence on the premises of the
hotel.
The concept of employment services encompasses the performance of incidental
activities that are inherently necessary for the performance of the primary activity.
Privett v. Excel Specialty Prod., 76 Ark. App. 527, 69 S.W.3d 445 (2002). Given the
claimant’s responsibilities to her employer, her residing on the premises and spending
as much time as possible on the premises was inherently necessary for the
performance of her primary activity, managing the hotel. An employee is performing
employment services when her injury is sustained within the time and space
boundaries of the employment, when the employee was carrying out the employer’s
purpose or advancing the employer’s interest directly or indirectly. Pifer v Single
Source Transportation, 347 Ark 851, 69 S.W.3d 1 (2002). It is plain from the record
that the employer’s purpose and interest was advanced by the claimant’s frequent and
regular presence on the premises. She was within the space boundaries of her
employment, and given that she was “on-call” 24 hours per day, she was within the
time boundaries as well.”
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The Commission found that “[t]he stipulations agreed to by the parties are reasonable
and are hereby accepted as fact.” We cannot merely ignore the parties’ stipulations. A
stipulation is “an agreement between the attorneys respecting the conduct of the legal
proceedings.” Dinwiddie v. Syler, 230 Ark. 405, 323 S.W.2d 548 (1959). That agreement is
the equivalent of undisputed proof and leaves nothing for the fact finder to decide as to the
stipulated matter. Brown v. Keaton, 232 Ark. 12, 334 S.W .2d 676 (1960). We held in
Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983), that when
the parties stipulate to certain facts, neither the ALJ nor the Commission may ignore that
stipulation and decide the matter on an issue that, because of the stipulation, had not been
fully developed by the parties or upon that they had not introduced proof. The only exception
is when the ALJ or Commission gives notice of their intent to do so and affords an
opportunity to offer proof on that issue. Id. Here, the ALJ accepted these stipulations as facts,
and the Commission in turn explicitly accepted and adopted the ALJ's findings of fact in its
decision.
This court, on a recent appeal based upon a stipulation, was compelled to reverse the
decision of the Commission when it ignored the stipulation it had accepted. See Powers v.
City of Fayetteville, ___ Ark. App. ___, ___ S.W.3d ___(Jan. 31, 2007). The case references
our earlier holding that reversed the Commission’s denial of benefits. In that earlier case,
the Commission rejected audiological testing to establish objectively a compensable injury
when a stipulation independently established the hearing loss.
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We remanded for a
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determination of fact concerning a causal relationship between the hearing loss and the
employment.
Similarly, we cannot ignore the stipulations that the parties submitted and the
Commission accepted. The critical issue in this case, as in any Workers’ Compensation
claim, is whether the employee was performing “employment services” at the time of her
injury. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002); Collins v. Excel
Specialty Prods., 347 Ark. 811, 816, 69 S.W.3d 14, 18 (2002); White v. Georgia-Pacific
Corp., 339 Ark. 474, 6 S.W.3d 98 (1999); Olsten Kimberly Quality Care v. Pettey, 328 Ark.
381, 944 S.W.2d 524 (1997). 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.” Pifer, supra; White, supra; Olsten Kimberly,
supra. 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 purpose or advancing the
employer's interest directly or indirectly.” White v. Georgia-Pacific Corp., 339 Ark. at 478,
6 S.W.3d at 100. See also Wal-Mart Stores, Inc. v. King, ___ Ark. App. ___, ___ S.W.3d ___
(Nov. 9, 2005); Ark. Meth. Hosp. v. Hampton, ___ Ark. App. ___, ___ S.W.3d ___ (Mar. 23,
2005). The critical issue is whether the interests of the employer were being directly or
indirectly advanced by the employee at the time of the injury. Collins, supra; see also
Matlock v. Ark. Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001).
The Commission appropriately directed its analysis to this critical issue of whether the
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employer’s interests were being directly or indirectly advanced at the time Ms. Jivan
sustained the injury that caused her death. The Commission found that Ms. Jivan was on the
employer’s premises at the time of her injury and was expected to reside on the premises for
the employer’s convenience. It further found that the employer’s purpose and interest were
advanced by Ms. Jivan’s frequent and regular presence on the premises. The Commission
therefore concluded that Ms. Jivan was within the space boundaries of her employment.
Given that Ms. Jivan was on call twenty-four hours a day, it also found that she was within
the time boundaries of her employment as well. In reaching its decision, the Commission
properly distinguished the facts of this case from that of Cook, supra, in which the employee
was injured in a private motel neither owned nor affiliated with the employer, there was no
indication that the employee was required to stay at this hotel, or that his staying in that hotel
advanced his employer’s interest, but rather, the room was provided solely for the employee’s
convenience.
Despite the Commission’s reliance on our precedent in Privett, the majority makes
no mention of the case to explain why the Commission’s reliance upon it was in error. The
closest the majority comes to addressing the basis upon which the Commission rendered its
decision is in the statement: “The fact that she was on call in her living quarters does not
necessitate a finding that every activity in which she engaged was inherently necessary to her
job.” Nothing in our review procedures permits this court to reverse the Commission’s
decision because the established fact “does not necessitate a finding.” We are to examine
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the facts and determine whether fair-minded persons with the same facts before them could
not have reached the conclusion. Furthermore, the Commission’s finding was not so broad
as to find that every activity Ms. Jivan may have engaged in upon the premises was
inherently necessary to her job. The Commission’s decision was properly limited to the facts
before it.
The majority’s reversal of the Commission’s decision ignores the fact that the parties
stipulated that Ms. Jivan’s primary employment activity was the management of the hotel and
that despite the fact that she was off duty at the time of her death, she was nevertheless on
call and on the premises in the space provided to her to perform her primary employment
activity. The majority improperly invalidates the Commission’s finding that given Ms.
Jivan’s responsibilities to her employer, her residing on the premises and spending as much
time as possible on the premises was inherently necessary for the performance of her primary
activity, managing the hotel. An employee is performing employment services when her
injury is sustained within the time and space boundaries of the employment, when the
employee was carrying out the employer’s purpose or advancing the employer’s interest
directly or indirectly. Pifer, supra. The Commission’s analysis is well-reasoned and
supports its decision.
In this case, the majority’s inability to see how the employee’s changing clothes
advances her employer’s interest completely ignores the focus of the Commission’s finding.
The Commission focused on the fact that Ms. Jivan was engaged in a personal activity on the
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employer’s premises because the employer derived a benefit from her continued presence on
the premises. The majority fixates on the details of the activity engaged in by Ms. Jivan
while on the employer’s premises, rather than on the fact that she was on the premises, on
call, and that her presence and on-call status advanced the employer’s interest. This
misplaced focus negates the parties’ stipulations. It ignores the stipulation that Ms. Jivan and
her husband were provided with a room in the hotel to live on the premises to carry out their
responsibilities as employees of the hotel. It renders void the parties’ express stipulation that
although she was off duty at the time her death occurred, she and her husband were always
considered to be on-call to address any hotel related issues. It obliterates the stipulation that
at least one of the reasons she and her husband were provided a room in the hotel on the
premises was for her to be available to provide management services. The Commission found
that the employer derived a significant benefit from Ms. Jivan’s regular and continual
presence on the premises of the hotel. Given the parties’ stipulations, the Commission’s
conclusion is well taken.2
Accordingly, I dissent.
2
The majority opines that “[u]nder the dissent’s reasoning, employers would be required
to extend workers’ compensation coverage to every personal activity in which an employee such
as [Ms. Jivan] might have engaged ....” The Commission merely rendered its decision based on
the parties’ stipulations and applicable law. The review of this court must always be whether the
evidence supports the Commission’s decision, not whether we agree with the disposition of the
case. The majority impermissibly imposes a different result because it disagrees with the
Commission. It then justifies its disagreement by listing isolated activities and suggesting that
affirmance of the Commission’s decision would require as a matter of law that every personal
activity engaged in by an employee on the premises would be deemed as advancing an
employer’s interest. Affirming the Commission’s decision would not overrule our extensive case
law demanding a fact intensive analysis of the statutory criteria.
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G LOVER and V AUGHT, JJ., join.
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