Olsten Kimberly Quality Care v. Pettey

• Decision Date: 05 May 1997
• Docket Number: No. 97-13,97-13
• Citation: Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (Ark. 1997)
• Parties: OLSTEN KIMBERLY QUALITY CARE, Appellant, v. Cheri PETTEY, Appellee.
• Court: Arkansas Supreme Court

Page 524

944 S.W.2d 524

328 Ark. 381

OLSTEN KIMBERLY QUALITY CARE, Appellant, v.Cheri PETTEY, Appellee.

No. 97-13.

Supreme Court of Arkansas.

May 5, 1997.

Frank B. Newell, Little Rock, for appellant.

Robert H. Montgomery, Little Rock, for appellee.

CORBIN, Justice

Appellant Olsten Kimberly Quality Care appeals the decision of the Arkansas Workers' Compensation Commission holding that Appellant is liable for benefits to its employee, AppelleeCheri Pettey, for injuries she sustained in an automobile accident on April 21, 1994.The Arkansas Court of Appeals affirmed the Commission's decision.Olsten Kimberly Quality Care v. Pettey, 55 Ark.App. 343, 934 S.W.2d 956[328 Ark. 383](1996).We granted Appellant's petition for review of that decision pursuant to Ark. Sup.Ct. R. 1-2(e)(as amended by per curiam July 15, 1996).When we grant review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court.Stucco Plus, Inc. v. Rose, 327 Ark. 314, 938 S.W.2d 556(1997).We affirm the decision of the Commission.

The Commission's opinion together with the parties' stipulations reveal the following facts.Appellee was employed by Appellant as a nursing assistant and was required to travel to the patients' homes to provide nursing services.Appellee was not required to report to Appellant's office each day, though she did take reports to and pick up supplies from Appellant's office on a regular basis.Appellee was compensated by Appellant according to the time actually spent at each patient's home.Appellee used her own vehicle to travel to the patients' homes, but she did not receive compensation for travel expenses.On April 21, 1994, Appellee was injured in a one-vehicle accident while she was traveling to the home of the first scheduled patient in Hot Springs Village.Prior to that, Appellee had reported to Appellant's office, located in the mall in Hot Springs, in order to drop off some reports and pick up supplies.After she had left Appellant's office, Appellee did some window shopping and talked to a friend before departing from the mall.Appellee then left the mall en route to her first patient's home.Two blocks from the patient's home, Appellee lost control of her automobile and overturned.

Appellee's initial claim for benefits was rejected by the administrative law judge on the grounds that her injuries did not arise out of and during the course of her employment with Appellant and that Appellee was not performing "employment services" at the time of the accident.Appellee appealed the decision of the administrative law judge to the full Commission, which found in favor of Appellee.

In its opinion, the Commission acknowledged that Appellee's claim was controlled by Act 796 of 1993, which amended the Workers' Compensation Act by excluding from the definition of "compensable injury" any injuries sustained at a time when employment services were not being performed.SeeArk.Code Ann. § 11-9-102(5)(B)(iii)(Repl.1996).The Commission likewise acknowledged that the amended act provides for strict statutory construction of the workers' compensation laws.SeeArk.Code Ann. § 11-9-704(c)(3)(Repl.1996).Act 796 did not, however, define the term "employment services."In construing the meaning and scope of that term, the Commission stated:

[C]onsidering the ordinary and usually accepted meaning of this term in common language, we find that an employee is performing employment services when she is engaging in an activity which carries out the employer's purpose or advances the employer's interests.Obviously, an employee carries out the employer's purpose or advances the employer's interests when she engages in the primary activity which she was hired to perform.However an employee also carries out the employer's purpose or advances the employer's interests when she engages in incidental activities which are inherently necessary for the performance of the primary activity.

Furthermore, in concluding that Appellee was performing employment services at the time of her accident, the Commission held:

However, under the prior law, employees were considered to be in the course of their employment when they were traveling if the travel was an inherent and necessary incident of a required employment activity.Likewise, applying the amended law, we find that employees are performing employment services when they are engaged in travel which is an inherent and necessary incident of a required employment activity.[Citations omitted.][Emphasis added.]

Appellant appealed the decision of the Commission to the court of appeals, which affirmed on the basis that travel was an inherent and necessary incident of Appellee's required employment activity.Correspondingly, the court of appeals rejected Appellant's argument that Appellee was not performing employment services at the time of her accident because she was not being compensated either for her travel time and expenses or for her nursing duties.

In reviewing appeals from the Workers' Compensation Commission, we view the evidence and all reasonable inferences therefrom in the light most favorable to the Commission's decision and affirm that decision when it is supported by substantial evidence.Gansky v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790(1996).Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion.Crawford v. Pace Indus., 55 Ark.App. 60, 929 S.W.2d 727(1996).The Commission's decision will be affirmed unless fair-minded persons presented with the same facts could not have arrived at the conclusion reached by the Commission.Gansky, 325 Ark. 163, 924 S.W.2d 790.

As was the Commission and the court of appeals, we are faced with the issue of what is meant by the term "employment services."Appellant asserts that the Commission erred in broadly defining "employment services" to encompass Appellee's injuries.Relying on the two aforementioned amendments to the Workers' Compensation Act, Appellant argues that the mandate of strict statutory interpretation and the description of those injuries which do not constitute "compensable injury" prohibit Appellee from collecting benefits from Appellant.We disagree.

Section 11-9-102(5)(A) defines "compensable injury" as "[a]n accidental injury causing internal or external physical harm ... arising out of and in the course of employment[.]"The test for determining whether an employee was acting within the "course of employment" at the time of the injury requires that the injury occur within the time and space boundaries of the employment, when the employee is...