J. & G. Cabinets v. Hennington

• Decision Date: 18 June 1980
• Docket Number: No. CA,CA
• Citation: 600 S.W.2d 916,269 Ark. 789
• Parties: J. & G. CABINETS, Employer: St. Paul Insurance Company, Insurance Carrier, Appellants, v. Tony HENNINGTON, Employee, Appellee. 80-77.
• Court: Arkansas Court of Appeals

Page 916

600 S.W.2d 916

269 Ark. 789

J. & G. CABINETS, Employer: St. Paul Insurance Company, Insurance Carrier, Appellants, v. Tony HENNINGTON, Employee, Appellee.

No. CA 80-77.

Court of Appeals of Arkansas.

June 18, 1980.

Released for Publication by the Court of Appeals.

Davis, Bassett, Cox & Wright, Fayetteville, for appellants.

Evans, Ludwig & Evans by James E. Evans, Jr., Springdale, for appellee.

PILKINTON, Judge.

This workers' compensation claim involves an injury which occurred during appellee's lunch hour. The issue presented on appeal is whether, upon the record, appellee's injury could properly be found to have arisen out of and in the course of the employment.

The material facts in this case are not in dispute. Appellant J. & G. Cabinets was in the business of manufacturing wood cabinets at Springdale, Arkansas, and Tony Hennington, a high school senior, was employed on a part-time basis under a work-study program. J. & G. Cabinets allowed the employees to use the shop machines during breaks for meals, and at other periods on the employees' own time.

Hennington worked a split shift from 1:45 p. m. to 9 p. m., with an hour off for an evening lunch from 5 p. m. to 6 p.m. On September 27, 1978, appellee used his meal break to cut out a gun stock for his personal use. While using the appellant's saw, appellee sustained an injury to his right index finger. Appellants denied a claim for workers' compensation benefits contending the injury did not arise out of and in the course of his employment. A hearing was held before an administrative law judge who found that appellee's injury did arise out of and in the course of his employment. On appeal, the Workers' Compensation Commission affirmed and adopted in full the findings, conclusions and award of the administrative law judge. The appellants have appealed from the decision of the Commission. The sole judge here is whether there is substantial evidence to support the finding and award of the Arkansas Workers' Compensation Commission that appellee's injury arose out of and in the course of employment with appellant J. & G. Cabinets.

It is undisputed that when the appellee was injured he was engaged in a project of his own during his evening lunch hour. He was, however, on his employer's premises, and using his employer's machinery and electricity in enterprise which had been expressly permitted by the employer; and which was consistent with the customary practice of the employer to allow employees to use the shop equipment on personal projects.

The evidence shows that the appellee was hired under a work-study program, and that it was understood he was expected to become familiar with the operation of various machines in the establishment. The Commission found that although appellee was not required to remain at his place of work during the lunch break, by voluntarily doing so he continued to be under the guidelines of his employment relationship; and that he was injured as a result of the use of equipment furnished and controlled by the employer. It is clear that appellee had permission to use the shop tools for the purpose involved.

For reversal appellants rely on Robbins v. Jackson, 232 Ark. 658, 339 S.W.2d 417 (1960) and West Tree Service, Inc. v. Hopper, 244 Ark. 348, 425 S.W.2d 300 (1968). Those cases are distinguishable from the one before us on the facts. It is at once apparent that the circumstances which prevented recovery in Robbins v. Jackson, supra, and West Tree Service v. Hopper, supra, are not present in the case before us. Also here the Commission made factual findings in favor of the claimant. The elements mentioned in the West case as necessary before a claim of this type could be considered compensable are shown by the evidence to be present in the case before us. See Lofland Co. v. Simpkins, 247 Ark. 850 at 853, 448 S.W.2d 39 (1969).

Activities of a personal nature, not forbidden but reasonably to be expected, may be a material incident of the employment and injuries suffered in the course of such activities are compensable. The fact that the injury is suffered during a lunch break, when the employee is not required to be on the premises, does not alter this principle. The controlling issue is whether the activity is reasonably expectable so as to be an incident of the employment, and thus in essence a part of it. Maheux v. Cove-Craft, Inc., 103 N.H. 71, 164 A.2d 574 (1960).

A claimant before the Workers' Compensation Commission must prove that the injury sustained was the result of an accident arising out of and in the course of employment. The phrase "arising out of the employment" refers to the origin or cause of the accident and the phrase "in the course of the employment" refers to the time, place and circumstances under which the injury occurred. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570. In order for an injury to arise out of the employment, it must be a natural and probable consequence or incident of the employment and a natural result of one of its...