Janice Parker v. Comcast Cable Corporation
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DIVISION I
CA 07158
JANICE PARKER
December 5, 2007
APPELLANT
V.
APPEAL FROM THE ARKANSAS
W O R K E R S ’ C O M P E N S A T I O N
COMMISSION [NO. F405352]
COMCAST CABLE CORPORATION
APPELLEE
AFFIRMED
Appellant Janice Parker appeals the decision of the Arkansas Workers’ Compensation
Commission denying her claim for benefits based on a finding that she was not performing
employment services when she injured her back. Appellant contends that the Commission’s
decision is not supported by substantial evidence and that the Commission erred by not admitting
her proffered exhibits into evidence. We disagree and affirm.
Appellant had been working for appellee Comcast Corporation since 1997 as a customer
service representative when on May 8, 2004, she tripped and injured her back. Appellant usually
worked on weekdays from 7:00 a.m. to 4:00 p.m., but she also worked overtime on weekends. The
accident occurred on a Saturday morning just before 7:00 a.m. as appellant was preparing to work
an overtime shift from 7:00 a.m. to 12:00 p.m. Appellant testified that the building was locked on
the weekends and that it was necessary for her to use a key card to gain entry to the building.
Comcast as well as other tenants leased office space in this building that was open to the public
during regular business hours.
After arriving that morning, appellant first went to get a soda in the Comcast break room
located on the ground floor, where she also had to use her key card to get inside. She then
proceeded to the elevator and selected the third floor where her office in the call center was located.
Appellant tripped as she was alighting from the elevator on the third floor. Appellant was not sure
why she had stumbled, but when she looked back at the elevator it was not level with the floor.
After gathering herself, appellant used her key card to enter the call center. She then clocked
in by entering her code into her telephone and began working. Appellant notified her supervisor
about the incident, and she sought medical treatment with her regular doctor for lower lumbosacral
discomfort that afternoon and again on Monday.
An MRI of her lumbar spine, which revealed a large posterior disc protrusion with severe
stenosis at L45, was taken on May 12, 2004. Appellant was referred to Dr. Scott Schlesinger, a
neurosurgeon, who performed a surgical decompression and discectomy at that level on June 8,
2004. A subsequent MRI showed a recurrence of the disc herniation at L45, which was again
surgically repaired by Dr. Schlesinger on October 14, 2004. In May 2005, Dr. Schlesinger reported
that appellant had reached maximum medical improvement with a permanent restriction of light
duty based on a functional capacity evaluation, and he assigned an anatomical impairment rating of
twelve percent.
Soon thereafter, appellant presented to Dr. Schlesinger with continued complaints of pain,
and another MRI was performed on June 3, 2005. This MRI revealed a disc herniation at L5S1
with an extruded disc fragment that impinged on the S1 nerve root and thecal sac. After discussing
treatment options with Dr. Schlesinger, appellant planned to have a discectomy.
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At appellee’s request, appellant was evaluated by Dr. Steven Cathey on August 23, 2005.
In a report of that date, Dr. Cathey concluded that the herniation at L5S1 was a new finding that was
not related to the May 2004 injury at L45.
Although appellee had initially accepted appellant’s claim as compensable and had paid all
appropriate benefits, after deposing appellant it took the position that appellant had not sustained
a compensable injury on May 8, 2004, because she was not performing employment services at the
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time of the accident. Based on Dr. Cathey’s report, appellee maintained that, in any event, it was
not responsible for paying benefits associated with the herniation at L5S1 because it was not related
to the accident that occurred on May 8, 2004. Appellant contended, however, that she was
performing employment services at the time of the May 2004 accident and that the herniation at L5
S1 was a natural progression of the original injury.
After a hearing, an administrative law judge determined that appellant was not performing
employment services at the time of the accident, and thus denied appellant’s claim for further
benefits. In pertinent part, the law judge found:
The claimant was merely en route to her work station where she had
to sign in by telephone to begin her duties. The claimant had not
actually begun any work activities at the time of the incident nor did
she have to pick up mail, invoices or other business papers on her
way to her office. While the claimant was on the premises where her
employer is housed, she was in the public space of the elevator and
hallway before actually entering her work area.
On appeal, the Commission affirmed and adopted the law judge’s decision. Hence this appeal.
Appellant first argues that the evidence does not support the Commission’s decision that she
was not performing employment services at the time of the accident. In reviewing decisions from
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Appellee did not seek reimbursement of any benefits it had paid.
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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. Jones v. Xtreme Pizza, 97 Ark. App. 206, ___ S.W.3d
___ (2006). 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).
When an appeal is taken from the denial of a claim by the Commission, the substantialevidence
standard of review requires that we affirm if the Commission’s decision displays a substantial basis
for the denial of relief. McDonald v. Batesville Poultry Equipment, 90 Ark. App. 435, 206 S.W.3d
908 (2005).
In order for an accidental injury to be compensable, it must arise out of and in the course of
employment. Ark. Code Ann. § 119102(4)(A)(I) (Supp. 2007). A compensable injury does not
include an injury which was inflicted upon the employee at a time when employment services were
not being performed. Ark. Code Ann. § 119102(4)(B)(iii). An employee is performing
employment services when he or she is doing something that is generally required by his or her
employer. Dairy Farmers of America, Inc. v. Coker, 98 Ark. App. 400, ___ S.W.3d ___ (2007).
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 and scope of employment.
Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W.3d 1 (2002). 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.
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2
Prior to Act 796 of 1993, the premises exception to the goingandcoming rule provided
that, although an employee at the time of injury had not reached the place where his job duties were
discharged, his injury was sustained within the course and scope of his employment if the employee
was injured while on the employer’s premises or on nearby property either under the employer’s
control or so situated as to be regarded as actually or constructively a part of the employer’s
premises. Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997).
In Hightower, however, we held that the statutory requirement of the 1993 Act that an employee
must be performing employment services at the time of the injury eliminated the premises exception
to the goingandcoming rule.
In the instant case, the appellant was injured getting off an elevator in a common area of the
building in which Comcast was one of the tenants, but before she reached her work station to clock
in and begin work. Appellant’s injury may have been compensable under the former premises
exception, but the critical inquiry under current law is whether she was performing employment
services when the injury occurred. See Moncus v. Billingsley Logging, 366 Ark. 383, ___ S.W.3d
___ (2006); Hightower, supra.
Applying the current standard in Hightower, supra, we affirmed the Commission’s decision
that the employee was not performing employment services when she slipped and fell on ice in the
employer’s parking lot. Similarly in Srebalus v. Rose Care, Inc., 69 Ark. App. 142, 10 S.W.3d 112
(2000), we held that an employee who stepped in a pothole on the employer’s parking lot did not
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The goingandcoming rule ordinarily denies compensation to an employee while he is
traveling between his home and his job, reasoning that employees having fixed hours and places of
work are generally not considered to be in the course of their employment while traveling to and
from work. Wright v. Ben M. Hogan Co., 250 Ark. 960, 468 S.W.2d 233 (1971).
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sustain an injury covered under workers’ compensation.
In other circumstances, we have considered injuries sustained by employees who were
entering the workplace to have occurred while the employee was performing employment services.
In Shults v. Pulaski County Special School District, 63 Ark. App. 171, 976 S.W.3d 399 (1998), the
employee was responsible for checking the alarm system when he arrived at work, and he fell while
entering the building to perform that task. In reversing the Commission’s denial of benefits, we
recognized that merely entering the employer’s premises was not sufficient to bring an employee
within the employmentservices provision. However, we held that the employee in that case was
not merely entering the premises when the injury occurred but that he was engaged in an activity
(checking the alarm) that carried out the employer’s purpose and advanced the employer’s interests.
In Foster v. Express Personnel Services, 93 Ark. App. 496, 222 S.W.3d 218 (2006), Foster
worked in accounts receivable on the second floor of the employer’s premises, and her duties
included processing credit card receipts and echecks that she had to retrieve from the cashier’s desk
in a separate area. Employees entered the building through the service bay, and there were times
when Foster was questioned by other employees in the servicebay area. Her duties also required
her to visit the servicebay area as needed at other times during the work day, and she was
considered to be on the job when she entered the servicebay doors. On the day of the accident,
Foster slipped and fell just after she had arrived at work and was walking in the servicebay area on
her way to the cashier’s desk to collect credit card receipts. On these facts, we held that Foster was
entitled to benefits because she was injured in an area where employment services were expected
of her.
Also in Caffey v. Sanyo Manufacturing Corp., 85 Ark. App. 342, 154 S.W.3d 274 (2004),
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the employee was required to produce an identification badge when she entered the employer’s
parking lot and then had to walk to a second guard shack to display her badge before entering the
plant to clock in. The employee fell in the hallway just five feet shy of the clockin station and some
200 feet from her work station. We held that the employee’s claim was compensable because these
preliminary requirements advanced the employer’s interest.
Appellant asserts that the facts of this case compare favorably with those in Caffey, likening
her use of a key card to the security requirements of the employer in that case. However, we cannot
equate the requirement of undergoing security checks with the necessity of swiping a key card to
unlock a door. In our view, appellant was merely on her way to work, and there was no testimony
that she had any jobrelated responsibilities as she walked through the building. The facts of this
case are more like those in Hightower, supra, and Srebalus, supra, and it is our conclusion that
substantial evidence supports the Commission’s decision that appellant was not performing
employment services when she tripped while emerging from the elevator.
We thus reject the notion that the requirement of having to unlock the door renders this
claim compensable. Had appellant tripped during regular business hours when the door was
unlocked, there would be no question that appellant’s claim would not be compensable. We decline
to create a distinction that would render a claim compensable just because the door to the building
was locked. Moreover, to accept appellant’s argument would erode the legislature’s intent to do
away with the premises exception.
Appellant also contends that this case is controlled by the decision in Wallace v. West Fraser
South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006), in which the supreme court reversed the denial
of benefits when the employee was injured while returning from an authorized break. In this regard,
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appellant points out that she, too, had gone to the break room immediately prior to her accident.
Wallace, however, is clearly distinguishable because here the appellant was not on a break when she
went to get a soda she had yet to begin her work day.
Appellant also asserts that the disc herniation found at L5S1 was causally related to the May
2004 accident. Because we are affirming the Commission’s decision that this incident did not arise
out of and in the course of appellant’s employment, it is not necessary for us to address this issue.
Appellant’s final argument is that the Commission erred by excluding exhibits concerning
a complaint made to OSHA about the elevator and appellee’s response to a letter received from
OSHA. Appellant contends that the exhibits were “direct evidence to the appellee’s notification of
faulty equipment (elevator) by OSHA” and showed “reasonable and logical workplace injury
prevention and remedies; relevant evidence that shows the nature and condition of the employee’s
workplace; that the site of the injury was considered an onthejob injury by Employer; federal
protection of the right of employee(s) to engage in (legal) notification(s) of the faulty equipment to
a governmental agency (OSHA) without fear of workplace or legal ramifications; employers
(Comcast) response to a legal inquiry from a governmental agency (OSHA), which could impact
past, present and future safety of appellant’s workplace.” Appellant does not explain why these
matters are relevant to a workers’ compensation claim. When an appellant fails to make a
convincing argument or to cite authority in support of it, we will not address the argument on appeal.
Jones Truck Lines v. Pendergrass, 90 Ark. App. 402, 206 S.W.3d 272 (2005). We note only that
we have held that employees in workers’ compensation cases no longer have standing to assert
safety violations with the passage of Act 796 of 1993. Vittitow v. Central Maloney, Inc., 69 Ark.
App. 176, 11 S.W.3d 12 (2000).
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Affirmed.
GLOVER and BAKER, JJ., agree.
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