Wayne Holden & Co. v. Waggoner

• Decision Date: 08 June 2016
• Docket Number: No. CV–16–12,CV–16–12
• Citation: 497 S.W.3d 210,2016 Ark. App. 309
• Court: Arkansas Court of Appeals
• Parties: Wayne Holden & Company, Inc., Appellant v. Tyler Waggoner (Deceased), Appellee

2016 Ark. App. 309

497 S.W.3d 210

Wayne Holden & Company, Inc., Appellant

v.Tyler Waggoner (Deceased), Appellee

No. CV–16–12

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered June 8, 2016

Barber Law Firm, PLLC, by: Gail Ponders Gaines, Little Rock, for appellant.

Moore, Giles & Matteson, L.L.P., by: Greg Giles, for appellee.

BRANDON J. HARRISON

, Judge

Tyler Waggoner died in a motor-vehicle collision carpooling home from work in 2013. The Arkansas Workers' Compensation Commission (Commission) held that Waggoner sustained a compensable injury while performing employment services and awarded benefits to his minor child. His employer, Wayne Holden & Company, Inc., (Holden) appeals the Commission's decision. We reverse the Commission's decision and dismiss the case because substantial evidence does not support the conclusion that Waggoner was advancing his employer's interests when he was fatally injured.

I. Facts

The material facts in this case are largely undisputed. Waggoner, a resident of Texarkana, Texas, worked as a crew leader for Holden; his job was to lay new or replacement gas lines. Holden's main offices are located in Texarkana, Arkansas. But Holden performs work on natural-gas pipelines for different companies across numerous cities and states, including Shreveport, Louisiana. The parties do not dispute that Waggoner was assigned to work primarily in and around Shreveport, Louisiana.

On 26 November 2013, Waggoner clocked in at his usual time of 7:00 a.m. at the company office in Shreveport. He then left with his crew in a company truck to do work replacing or laying new gas lines for one of Holden's clients, Centerpoint Energy. That work stopped early in the day because of rain. Waggoner and his crew returned to the Shreveport company office and clocked out around 11:00 a.m. After clocking out, Waggoner left the Shreveport office with two co-workers in a vehicle driven by another co-worker, Kendrick Blackmon. A distracted driver rear-ended Blackmon's vehicle at a new stoplight on Highway 71 around 12:23 p.m. in Caddo Parrish, Louisiana, killing Waggoner. Testimony during the administrative hearing revealed that it took around twenty-five or thirty minutes to reach Caddo Parrish from the company office in Shreveport, and about an hour or hour and a half to reach Texarkana using Highway 71. The vehicle in which Waggoner was riding was Blackmon's personal vehicle, not a company-owned truck.

Witness testimony given during the administrative hearing about a $50 per diem Holden's Texarkana-based employees received is critical to the Commission's decision and our review of it.

A. Kara Warren's Testimony

Waggoner's partner, Kara Warren, testified that when his employment with Holden began in 2011, Waggoner rode to work in Shreveport in a company van. During that time he was not paid a per diem amount. Starting sometime in 2012, Holden changed its policy and discontinued using a company vehicle to transport employees from Texarkana to Shreveport. Warren explained that when the Texarkana-based employees started to drive their own vehicles,

[m]ost of the time, they got together and week by week, they'd use somebody's car. They'd give that person ten or fifteen dollars a day for gas, and they'd get together and drive to Shreveport and drive back.

Warren also said that when Waggoner worked in Shreveport, he returned to Texarkana each night and received a $50 per diem. And when Waggoner worked in Mena, Arkansas, he chose to spend the night instead of driving back and forth and received close to $75 per diem per day because Mena was farther from Texarkana, according to Warren. On cross-examination, Warren agreed that Waggoner did not have to turn in receipts or anything else showing how he spent the per diem money.

B. Wasey Kyle Davis's Testimony

Wasey Kyle Davis, a Holden superintendent, confirmed that Waggoner “worked consistently” at the Shreveport site. When questioned about the policy change, Davis explained that the company decided that it would rather pay per diem than transport employees in a van because people would not arrive to the van on time. Davis said that employees were never compensated for time riding in the van. According to Davis, the per diem was “motel money.” When Davis worked out of town in Oklahoma, he and three others would use the money to get a motel room rather than commute from Texarkana. Davis testified that he drives a company truck and has a company credit card he uses to buy fuel, and he still receives a per diem. Davis also explained the per diem this way:

It don't matter what they [Holden's employees] do with it. I mean, they can go spend it on lunch, they can spend it on supper, they can take their family out to eat, just whatever.

Waggoner was not subject to being on call while he was traveling to and from work, according to Davis. Waggoner did not receive a per diem for the days he did not work or when he worked in Texarkana.

C. Quintin Helms's Testimony

Quintin Helms was a fellow passenger in Blackmon's vehicle the day the accident happened. Helms testified that after they signed out around 11:00 a.m. that day, they went by a convenience store before heading home to Texarkana. Helms agreed that he was not “on the job” at the time of the accident and was not being paid for his time when the accident occurred. According to Helms, he and his co-workers would carpool, and Holden would “pay us per diem for driving.” This colloquy occurred during cross-examination:

HOLDEN'S ATTORNEY : As you understood it, why were they giving you a per diem?

HELMS : For food and gas.

HOLDEN'S ATTORNEY : Hotel expense if you needed it?

HELMS : Yes, sir. That's what it was meant for.

HOLDEN'S ATTORNEY : So, how would you typically use your per diem?

HELMS : Gas or bills or whatever I needed it for.

HOLDEN'S ATTORNEY : You could use it for anything, right?

HELMS : Yes, sir.

On redirect examination, Helms explained that it cost him “a lot less than $50.00 a day in gas money” when carpooling. He thought he contributed about $10 toward gas expenses when he carpooled.

When Helms worked in Shreveport, he would carpool with employees on their way from Texarkana because he lived in Fouke, Arkansas, which was a little closer to Shreveport than Texarkana.

D. Michael Millsap's Testimony

Michael Millsap, an office assistant/engineer for Holden, also testified at the administrative hearing. Millsap explained that he lives in Fouke, Arkansas and that he commutes to Shreveport every day for work. Millsap's understanding was that no restrictions existed on his $50 a day per diem and that he did not have to turn in any documentation of what he used the money for. He agreed that the $50 was not “treated any way differently ... than the rest of [his] wages.” On cross-examination, Millsap said that the per diem is

basically, a company convenience to offset for people having to work out of town in case they want to stay overnight and they need to get a hotel to stay overnight. It can be spent however they want. If they want to use it to buy their meals to go out to eat, you know, at lunch time or whatever.

E. Kendrick Blackmon's Testimony

Kendrick Blackmon's (the driver) deposition testimony was admitted as evidence during the administrative hearing. Blackmon testified that the “whole purpose” of a per diem was to “give you a choice.”

You know, we're going to give you $50.00 a day, and you can either stay here or you can go there, but, you know, this is what we're going to pay you for working up here, and the further you worked, the further out you worked, the more you were paid.

Blackmon then explained that he would make $75 per diem in Little Rock and $50 per diem in Shreveport.

According to Blackmon, Holden made no recommendation to its employees about whether they should stay in Shreveport or commute. Blackmon testified that after his daughter was born, he drove back and forth more often, but if he worked “extra late” he would sometimes get a motel room with a few guys because he was too tired to drive home. Blackmon agreed that Holden “didn't care how you got there as long as you were there at 7:00 [a.m.].”

That's why they gave you the per diem. If you want to get a room, you've got the $50.00 If you want to drive back and forth, you've got gas money. That's what the per diem was for, to get you to work and get you wherever you're going so that you can rest and get back to work.... The $10 per hour pay did not start until you clock in at the Centerpoint office. If you clocked in that day, the per diem is automatic for that day.

Blackmon also confirmed that carpooling co-workers would “chip in for gas” and that they “did not have to keep track of receipts or turn in hotel or gas receipts or anything like that.”

II. The Commission's Decision

Based on the testimony received during the hearing, the administrative law judge (ALJ) decided that Waggoner was performing employment services when he was fatally injured and awarded benefits. The ALJ reviewed numerous appellate-court cases and administrative decisions and found that one or more exceptions to the going-and-coming rule applied. Holden appealed the ALJ's decision to the full Commission, and the Commission affirmed and adopted the ALJ's written findings as its own.

Here is the most important part of the decision on review:

In light of the evidence that per diem was implemented because employees were not arriving at the same time to ride in the company vehicles, and the testimony that the various per diem rates varied depending on the distance of the work locale from Texarkana, I conclude that the per diem was intended to bear a rational relationship to the actual cost of the employee's transportation costs from Texarkana to the company's various work sites. In addition, there appears to be no dispute in the present case that management was well aware that Texarkana residents were generally carpooling to and from Shreveport, rather than using their per diem to stay in Shreveport during

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