Leslie Toia v. HTI Logistics, Employer
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DIVISION I & II
CA07234
NOVEMBER 14, 2007
LESLIE TOIA
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. F404310]
HTI LOGISTICS, EMPLOYER
APPELLEE
REVERSED AND REMANDED
This appeal follows the December 13, 2006 decision of the Workers’ Compensation
Commission (Commission) that reversed the June 29, 2006 opinion of the Administrative
Law Judge (ALJ), finding specifically that appellant Leslie Toia failed to prove by a
preponderance of the evidence that he was performing employment services at the time his
injuries occurred. On appeal, appellant challenges the Commission’s decision on that single
issue. We reverse and remand for an award of benefits.
Appellant picked up a load of newsprint in Pine Bluff, Arkansas, and was scheduled
to deliver it in Burlington, Vermont, on May 10, 2002. He arrived in Burlington on May 9,
2002, and proceeded to his dropoff location. After he was informed that he would have to
wait until the following morning to unload, he parked his truck at a local shopping mall.
According to appellant, sometime after he parked the truck he left to get something to eat.
Appellant testified that he subsequently returned to his truck intending to retire for the night
in the sleeper compartment of the truck. He checked the seals on the truck and walked
around, generally checking the truck itself, then proceeded to climb back in the truck for the
evening.
Appellant lost his footing while climbing up into the cab of his truck, slipped off the
top step, fell backwards onto the ground, and landed on his back. He stated that he lay
helpless on the ground for about fortyfive minutes, with no one stopping to help, before
finally being able to get back up and into the cab of his truck. Appellant stated that he rested
there for about an hour or two, then disconnected the trailer, and eventually drove himself
to the emergency room of a nearby hospital. Appellant testified that he was examined at the
emergency room but that no xrays were taken. He further testified that he was released with
pain medication and ibuprofen.
Appellant delivered his load the next morning as scheduled, then contacted Tim
Hogan, appellee’s dispatcher, to notify appellee of his injury. He stated that he was told that
he would have to return to Jonesboro, Arkansas, for further medical treatment. First,
however, he was instructed to pick up a load approximately 300 miles away in upstate New
York. Appellant eventually arrived at his destination in New York, where he again sought
treatment at the emergency room of a local hospital. Appellant testified that surgery was
recommended at that time, which he refused because he preferred being treated in his home
state of Montana. He then flew home to Montana where he was examined by a neurosurgeon,
who allegedly performed surgery the same day. There are no medical records to corroborate
appellant’s version of events surrounding his alleged injury. Appellant stated that, after two
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months of recovery time from this surgery, he returned to work for appellee. He left his
employment with appellee approximately four to five months later for a higherpaying
position with another trucking company.
Appellant admitted during the hearing before the ALJ on May 5, 2006, that he had
given false statements during his July 6, 2005 deposition. These false statements related
primarily to the times at which events occurred on the date in question. Appellant explained
that he had been untruthful because he had corrected his Department of Transportation
(DOT) logs, to which he had referred during his deposition, in order to avoid violations.
Appellant further explained that he had been reprimanded on numerous occasions for
violating DOT regulations in reporting. Notwithstanding these admitted indiscretions, both
the ALJ and the Commission found that the preponderance of the credible evidence
demonstrated that appellant was an employee of appellee at the time of his alleged accident.
Appellant’s employment status is not at issue for purposes of this appeal.
Appellant also admitted that he had three beers with his meal but denied being
intoxicated at the time this incident allegedly occurred. There is no toxicology report
contained within the record to verify appellant’s level of blood alcohol at the time of this
incident. Although aware of those admissions, the Commission did not appear to focus on
that issue, specifically pursuant to the provisions of Ark. Code Ann. § 119102(4)(B)(iv)(a)
(Repl. 2002), when making findings regarding compensability.
With regard to the issue of employment services, as previously mentioned, appellant
was less than candid during his deposition regarding: the time he arrived in Burlington; his
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activities immediately following his arrival there; his activities immediately prior to his
alleged accident; the time the accident occurred. Although he admitted that he had
essentially lied during his deposition about the chronology of events on May 9, 2002, it
appears from his testimony at the hearing before the ALJ that he most likely did sustain a
legitimate injury on that date. The Commission stated in its opinion that the truth appeared
to be that appellant was returning to his truck after taking a dinner break, with plans to sleep
there before delivering his load the next morning. The Commission also set forth in its
opinion that appellant misstepped while he was climbing into the cab of his truck, and
landed on the ground. Therefore, the only remaining issue to be resolved is whether
appellant was performing employment services at the time of his alleged accident.
Standard of Review
In appeals involving claims for workers’ compensation, our court views the evidence
in a light most favorable to the Commission’s decision and affirms the decision if it is
supported by substantial evidence. Moncus v. Billingsley Logging, 366 Ark. 383, __ S.W.3d
__ (2006). Substantial evidence is evidence that a reasonable mind might accept as adequate
to support a conclusion. Id. The issue is not whether the appellate court might have reached
a different result from the Commission; if reasonable minds could reach the result found by
the Commission, the appellate court must affirm the decision. Id. Where the Commission
denies a claim because of the claimant’s failure to meet his burden of proof, the substantial
evidence standard of review requires that we affirm the Commission’s decision if its opinion
displays a substantial basis for the denial of relief. Id.
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It is well settled that questions concerning the credibility of witnesses and the weight
to be given to their testimony are within the exclusive province of the Commission. See Mize
v. Resource Power, Inc., __ Ark. App. __, __ S.W.3d __ (Sept. 5, 2007). Arkansas Code
Annotated section 119704(b)(6)(A) (Repl. 2002) vests with the Commission the duty to
review the evidence and if deemed advisable to hear the parties, their representatives, and
witnesses. The statute further requires the Commission to determine, on the basis of the
record as a whole, whether the party having the burden of proof on the issue has established
it by a preponderance of the evidence. Ark. Code Ann. § 119704(c)(2). Thus, in
determining that the Commission’s authority and duty to conduct a de novo review of the
entire record, including issues of credibility, are constitutional, this court stated in Stiger v.
State Line Tire Serv., 72 Ark. App. 250, 261, 35 S.W.3d 335, 342 (2000):
When the Commission reviews a cold record, demeanor is merely one factor to be
considered in credibility determinations. Numerous other factors must be included in
the Commission’s analysis of a case and reaching its decision, including the
plausibility of the witness’s testimony, the consistency of the witness’s testimony
with the other evidence and testimony, the interest of the witness in the outcome of
the case, and the witness’s bias, prejudice, or motives. The flexibility permitted the
Commission adequately protects the claimant’s right of due process of law.
Accordingly, when there are contradictions in the evidence, it is constitutionally within the
Commission’s exclusive province to reconcile the conflicting evidence and to determine the
true facts. In addition, the Commission is not required to believe the testimony of the
claimant or other witnesses, but may accept and translate into findings of fact only those
portions of the testimony it deems worthy of belief. Cottage Café, Inc. v. Collette, 94 Ark.
App. 72, 226 S.W.3d 27 (2006).
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A compensable injury is “an accidental injury .... arising out of and in the course of
employment.” Ark. Code Ann. § 119102(4)(A)(i) (Repl. 2002). A compensable injury
does not include injuries suffered 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. White v. GeorgiaPacific Corp., 339 Ark 474, 6 S.W.3d 98 (1999). The same test
is used to determine whether an employee was performing “employment services” as when
determining whether an employee was acting within “the course of employment.” Moncus,
supra. The supreme court has stated that an employee is performing employment services
when he is doing something that is generally required by his employer. 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. White, supra. Furthermore, when the injury occurs outside of the time
and space boundaries of employment, the critical determination to be made is whether the
employee was directly or indirectly advancing the interests of the employer at the time of the
injury. Moncus, supra.
Whether a claimant was performing employment services depends on the particular
facts and circumstances of each case. The following factors may be considered in
determining whether the claimant’s conduct falls within the meaning of “employment
services”: (1) whether the accident occurs at a time, place, or under circumstances that
facilitate or advance the employer’s interests; (2) whether the accident occurs when the
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employee is engaged in activity necessarily required in order to perform work; (3) whether
the activity engaged in when the accident occurs is an unexpected part of the employment;
(4) whether the activity constitutes an interruption or departure, known by or permitted by
the employer, either temporally or spatially from work activities; (5) whether the employee
is compensated during the time that the activity occurs; (6) whether the employer expects the
worker to stop or return from permitted nonwork activity in order to advance some
employment objective. See Matlock v. Ark. Blue Cross Blue Shield, 74 Ark. App. 322, 49
S.W. 3d 126 (2001).
Discussion
Appellant contends that, because he was returning to the truck to sleep, he was
advancing the employer’s interests by insuring the safety of the truck. It is undisputed that
in the present case, appellee required employees to maintain control of their trucks and to
make sure the contents of the truck and the truck itself were safely secured. Both appellant
and Ms. Jodie Israel, the former payroll and personnel employee for appellee, testified that
appellant would be required to secure his vehicle and the contents therein. Appellant also
testified that there were facilities in the truck that were designed to allow drivers to sleep on
board. More importantly, appellant testified that employees would rarely stay in a motel
room unless they were on a twoday layover. Appellant was not on a twoday layover, and
he argued that he saved appellee money by staying in the truck.
Appellant also contends that he provided security by staying in the truck. Appellant
specifically testified that there were benefits to staying in the truck, including that it
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prevented theft. When asked why he would spend the night in the truck, he answered,
“[b]ecause if anything’s going to happen to your trailer you can feel it rocking. I mean, as
soon as you open the door, actually physically lift the handles and pull it open and when you
feel the doors open you can actually feel the vibration right through the whole truck.”
Appellant testified that, one time in the past when he was in New York, someone was
attempting to break in his truck while he was sleeping and that he felt the vibrations and got
out of bed. He started the truck and went around back, at which time he found that the trailer
door was open. He argues that by sleeping in the truck he was able to stop what was
apparently an attempted robbery, which would clearly benefit appellee.
Appellant cites Jivan v. Economy Inn & Suites, __ Ark. App. __, __ S.W.3d __ (Dec.
6, 2006), as paralleling the facts of this case. There, the claimant was the estate of Nimisha
Jivan, deceased, who was an assistant manager at the Economy Inn in Hope, Arkansas, and
whose husband, Jack Jivan, was a manager. The Jivans lived in a room provided by the hotel
and carried out their work responsibilities on the premises. On February 17, 2003, Nimisha,
who was off duty, was changing her clothes while in the bathroom of her hotel room
preparing to go to the gym. A fire broke out, and Nimisha was not able to escape her hotel
room. She died as a result of smoke inhalation from the fire.
In its opinion reversing this court’s decision to deny benefits, our supreme court
discussed the fact that Nimisha, like the claimant in Deffenbaugh Industries v. Angus, 313
Ark. 100, 852 S.W.2d 804 (1993), resided on the employer’s premises at the time of her fatal
injury. Jivan v. Economy Inn & Suites, __ Ark. __, __ S.W.3d __ (June 28, 2007). The
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supreme court employed an increasedrisk analysis, discussing that Nimisha was expected
to reside on the premises and, as a residential employee of the hotel, the condition of living
at the hotel “intensified the risk of injury due to extraordinary natural causes.” See
Deffenbaugh, 313 Ark. at 106, 852 S.W.2d at 808. The supreme court stated that her
presence on the premises during the fire exposed her to a greater degree of risk than someone
who did not live on the premises. The parties had stipulated that Nimisha was on call
twentyfour hours per day, and while on the premises, she was to carry out her
responsibilities as an assistant manager of the hotel by being available for work duties at all
times. Accordingly, the supreme court held that Nimisha indirectly advanced her employer’s
interests.
In Jivan, the supreme court pointed out that in our supplemental majority opinion, this
court cited Cook v. ABF Freight Systems, Inc., 88 Ark. App. 86, 194 S.W.3d 794 (2004)
(holding that a truck driver, who was on call, was not compensated for an injury in a motel
room provided by his employer), for the proposition that an injury is not compensable where
an employee performs an activity for the purpose of attending to his personal needs. The
supreme court found Cook to be distinguishable from the Jivan case because the truck driver
was not a residential employee of the motel. The driver spent the night in a motel room,
which, while paid for by the employer, was neither owned nor operated on the premises of
his employer. However, the supreme court specifically stated that “[t]he scenario might have
been different if the truck driver had sustained the injury while sleeping in his truck.” Jivan,
__ Ark. at __, __ S.W.3d at __. That is exactly the situation that occurred in the instant case.
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The supreme court held that, under the increasedrisk doctrine, Nimisha’s fatal injury
was compensable as a residential employee who indirectly advanced the interests of her
employer. Appellant points out that the claimant in Jivan was getting ready to leave her
employment location at the time of her accident, yet the injuries were found to be
compensable. Here, appellant was doing just the opposite. When he walked around the
truck to make certain that it and the contents were secure and proceeded to climb back into
the truck to retire for the evening, appellant had returned to the “premises” of his
employment. He was remaining in the truck, his mobile “office” so to speak, in order to
prevent anything from happening to it or its contents prior to delivery to the customer the
following morning.
Appellant also cites Arkansas Department of Health v. Huntley, 12 Ark. App. 287,
675 S.W.2d 845 (1984), where this court held that activities of a personal nature, that are not
forbidden but reasonably expected, may be a material incident of employment and injuries
suffered in the course of such activities are compensable. The court stated that the
controlling issue is whether the activity is one to be reasonably expected so as to be an
incident of the employment and thus in essence a part of it. Id. In the instant case, appellant
climbing into his truck is an activity that the employer should reasonably expect and is an
incident of his employment. There are many activities directly related to his employment
that require him to get into and out of the truck, including, but not limited to, loading and
unloading, pumping gas, talking to customers upon pickup or delivery, etc. Here, he was
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climbing into the truck after checking the seals and inspecting the truck itself in order to save
appellee money on lodging while also keeping his vehicle and the contents therein secure.
Appellee focuses on the lack of factual information known about the injury and the
inconsistencies between appellant’s testimony at each of his two depositions and at the
hearing, reminding us that appellant has the burden of proving by a preponderance of the
evidence that his injury is compensable. Appellee urges this court to decide this case based
on the principles of Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558
(1999), where a foodservice worker was entitled to benefits for an injury that she sustained
while she was on break. The determining factors regarding whether she was performing
employment duties at the time of the accident were that her breaks were paid and she was
required to assist diners, even during her break, should the need arise.
Appellee maintains that in the instant case, appellant was not performing employment
services either before, after, or during the injury. Appellee contends that he was not required
to perform employment services until 8:00 a.m. the following morning, when he was to
deliver the load. Appellee asserts that it could not benefit from appellant’s personal activities
such as shopping, eating, beer drinking, or going to the movies. Kinnebrew v. Little John’s
Truck, Inc., 66 Ark. App. 90, 989 S.W.2d 541 (1999), is also cited as an example of this
court holding that a truck driver was not performing employment services when he was
injured while taking a shower at a truck stop. As previously discussed, Kinnebrew is
distinguishable because appellant’s activities at the time of the injury are much more closely
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tied to the truck, its contents, and appellant’s responsibility to make sure nothing happened
to either one prior to delivery.
The Commission found that appellant was off duty and free to do as he as he pleased
at the time of the alleged incident. There was contradictory testimony about appellant’s
reporting of the accident, his initial handling of obtaining medical treatment, a potential delay
in giving notice of the claim, the lack of medical records substantiating the injury, and his
status as an employee. The Commission did not focus on those issues, however, focusing
solely on whether appellant was performing employment services at the time of the injury.
Limiting our review to that one issue, under the analysis recently set forth in Jivan,
we hold that reasonable minds could not reach the result found by the Commission because
appellant’s activities related to returning to the “premises,” i.e., his truck, in preparation of
staying overnight in the truck to protect it and the cargo, advanced the interests of his
employer. Despite the allegations of falsified statements, DOT records, and lack of
credibility, even the Commission stated in its opinion that appellant was engaged in activities
related to his truck at the time he fell. Accordingly, we reverse and remand for an award of
benefits.
Reversed and remanded.
HART, and GLOVER, JJ., agree.
MILLER, J., concurs.
BIRD and HEFFLEY, JJ., dissent.
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Judge Miller’s November 14 concurrence
BRIAN S. MILLER, Judge, concurring. I concur with the decision to reverse and remand
this case for an award of benefits; and I write separately to reconcile this view with my
position in Economy Inn & Suites v. Jivan,
Ark. App.
,
S.W.3d
(Mar. 14,
2007). In Jivan, I voted with this court’s majority to deny benefits based on my view that
the claimant was not advancing the interests of her employer while changing clothes to attend
a workout session. The supreme court, however, reversed us in Jivan v. Economy Inn &
Suites,
Ark.
,
S.W.3d
(June 28, 2007).
The majority opinion clearly articulates the similarities between Jivan and the present
case. Although it is arguable that the claimant, Leslie Toia, was not advancing the interests
of his employer at the time of his injury, we are bound by the precedent of our supreme
court. See Sanderson v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003); Gause v.
Shelter Gen. Ins., 81 Ark. App. 133, 98 S.W.3d 854 (2003). Therefore, I join the majority.
SAM BIRD, Judge, dissenting. This court has reversed the Commission’s opinion,
which found that appellant was not performing employment services at the time he was
allegedly injured and, therefore, denied him benefits. I respectfully dissent because I believe
that there is substantial evidence to support the Commission’s denial of benefits.
A recitation of our standard of review is critical to my opinion in this case. We
review the evidence in a light most favorable to the Commission’s decision and affirm the
decision if it is supported by substantial evidence. Moncus v. Billingsley Logging, 366 Ark.
383, ___ S.W.3d ___ (2006). Substantial evidence is evidence that a reasonable mind might
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accept as adequate to support a conclusion. Id. The issue is not whether we might have
reached a different result from the Commission; unless we conclude that reasonable minds
could not reach the conclusion reached by the Commission, we are required to affirm its
decision. Id. In this case, the Commission specifically found that appellant was offduty at
the time of the alleged injury and that he failed to prove by a preponderance of the evidence
that he was performing employment services. In my view, the Commission’s decision is
supported by substantial evidence and should be affirmed.
In support of its decision to reverse the Commission’s determination, the majority
relies upon appellant’s testimony that employees rarely stayed in a motel unless they were
on a twoday layover; that he saved money by staying in his truck; and that staying in the
truck benefitted his employer by providing security. The majority then compared the facts
of this case to the facts in Jivan v. Economy Inn & Suites, ___ Ark. ___, ___ S.W.3d ___
(Jun. 28, 2007), in which the supreme court affirmed an award of benefits for the family of
Nimisha Jivan, the assistant manager of a hotel, who died in a fire at the hotel while she was
offduty but while she was changing her clothes in the bathroom of her hotel room. In Jivan,
the supreme court relied on the parties’ stipulation that Mrs. Jivan was required to live at the
hotel and was always considered to be oncall to address any hotelrelated issues. The court
held that Mrs. Jivan’s injury was compensable as a residential employee who indirectly
advanced the interests of her employer. However, the court noted that its holding would “not
extend workers’ compensation coverage to include every possible scenario, but rather in a
more narrow sense, it will cover those injuries, particularly those from extraordinary natural
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causes, that residential employees sustain on their employers’ premises.” Id. at ____, ____
S.W.3d at ____ (emphasis added).
I disagree with the majority that the holding in Jivan requires reversal of the
Commission’s decision in this case. The facts in this case are significantly different from
the facts that were critical to the court’s decision in Jivan. Appellant was not a residential
employee and did not sustain an injury on his employer’s premises. In attempting to
compare this case to Jivan, the majority refers to appellant’s truck as the “premises” and as
his “mobile office.” In fact, to use the supreme court’s analysis in Jivan, we must assume
that appellant’s truck is the employer’s “premises.” It is only when an employee resides on
the employer’s property that he is in fact a residential employee. Residence means “the
place, esp. the house, in which a person lives or resides; dwelling place; home.” Webster’s
College Dictionary 1145 (1996). A company vehicle—even one with a sleeping
compartment—is not a residence. In fact, appellant testified that he “resided” in Billings,
Montana. Unless we are going to extend the definition of a residential employee from those
employees required to live on the jobsite and remain oncall twentyfour hours per day to
truck drivers, or any other employee who spends a significant amount of time in a vehicle
owned by his or her employer, appellant was not a residential employee.
The question in this case is whether there is substantial evidence to support the
Commission’s decision that an offduty truck driver, who injured himself while allegedly
attempting to climb into his companyowned truck to sleep, was not performing employment
services. The Commission found that the credible testimony demonstrated that appellant was
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off duty at the time he slipped and fell. It also found that he was not returning to his truck
to perform any workrelated activity, but to sleep. The Commission found that appellant was
“free to do as he pleased” at the time of the incident and the fact that he chose to sleep in his
truck did not imply that he was advancing his employer’s interests, either directly or
indirectly, by doing so. There was no testimony by appellant or anyone else that appellant
was required to sleep in his truck. In fact, he testified that sometimes he would get a motel
room and “sometimes” he needed permission to get a motel room and “sometimes” he did
not need permission. This testimony certainly did not establish that appellant was required
by his employer to sleep in his truck.
The Commission also found that, even if inspecting the truck rose to the level of
employment services, appellant had completed the inspection before he decided to climb into
the truck to retire for the evening. The Commission stated that the completed inspection did
not transform his decision to retire for the evening into an employment activity. I believe
that reasonable minds could accept this evidence as adequate to support the Commission’s
decision.
The Commission found that appellant was offduty. Where he chose to spend his off
duty time—in his truck—does not change this critical fact. Because he was offduty when
he was allegedly injured, the Commission determined that he was not performing
employment services. We have affirmed the Commission’s denial of benefits for a truck
driver who was injured in the bathroom while “oncall” in a hotel room provided by his
employer. Cook v. ABF Freight Sys., Inc., 88 Ark. App. 86, 194 S.W.3d 794 (2004). We
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also affirmed the denial of benefits for a truck driver who was injured while showering in
a truck stop during his required eighthour break between deliveries. Kinnebrew v. Little
John’s Truck, Inc., 66 Ark. App. 90, 989 S.W.2d 541 (1999). Like the appellant in this case,
these truck drivers were offduty. One was in the bathroom of a hotel room provided by his
employer and one was in a truckstop shower; appellant was getting into his truck to sleep.
However, all were offduty and free to do as they pleased.
It is the function of the Commission to determine the credibility of the witnesses and
the weight to be given their testimony. Cooper Tire & Rubber Co. v. Angell, 75 Ark. App.
325, 58 S.W.3d 396 (2001). The Commission did not believe appellant’s testimony that, by
getting into his truck to sleep, he was performing employment services. While
acknowledging the proper standard of review, the majority nonetheless ignores it, disregards
the Commission’s conclusion, and concludes instead that appellant was injured while getting
into his “premises” to sleep. Although there may be a case in which a truck driver should
be compensated for an injury received while sleeping in his truck, I do not believe that this
is that case. There was no evidence that appellant’s employer either required or requested
that appellant sleep, eat, or otherwise remain in his truck during his free time. Appellant
chose to go out to a restaurant, eat a steak, and drink some beers; he then chose to return to
his truck to sleep. In my view, there is substantial evidence to support the Commission’s
decision that appellant was not performing employment services at the time of the incident
because he was offduty and was, therefore, “free to do as he pleased.” Therefore, I would
affirm.
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HEFFLEY, J., joins this dissent.
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