Economy Inn & Suites v. Jivan

• Decision Date: 14 March 2007
• Docket Number: No. CA 06-158.,CA 06-158.
• Citation: 97 Ark.App. 115,253 S.W.3d 4
• Court: Arkansas Court of Appeals
• Parties: ECONOMY INN & SUITES & CCMSI, Appellants, v. Nimisha JIVAN, Appellee.

253 S.W.3d 4

97 Ark.App. 115

ECONOMY INN & SUITES & CCMSI, Appellants, v. Nimisha JIVAN, Appellee.

No. CA 06-158.

Court of Appeals of Arkansas.

March 14, 2007.

Michael E. Ryburn, Little Rock, AR, for appellants.

Harrelson, Moore & Giles, LLP, by: Greg Giles, for appellee.

SUBSTITUTED OPINION ON GRANT OF REHEARING

SAM BIRD, Judge.

In a previous opinion, Economy Inn & Suites v. Jivan, 2006 WL 3505548 (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. 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 respondent-employer, 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.

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 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 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 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.

PITTMAN, C.J., and HART, GLADWIN, MARSHALL, and MILLER, JJ., agree.

GLOVER, VAUGHT, and BAKER, JJ., dissent.

KAREN R. BAKER, Judge, 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 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 449).

In reaching its decision, the Commission relied upon our reasoning in Privett and applied its reasoning to the...