Razorback Concrete v. Perkins

Cite as 2015 Ark. App. 368

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-59

Opinion Delivered JUNE 3, 2015
RAZORBACK CONCRETE and
BERKLEYNET APPEAL FROM THE ARKANSAS
APPELLANTS WORKERS’ COMPENSATION
COMMISSION
V. [NO. G301956]

MICHAEL PERKINS, SR.
APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

This is an appeal from a decision issued by the Arkansas Workers’ Compensation

Commission. Appellant Razorback Concrete appeals the award of benefits to appellee

Michael Perkins, Sr., deceased. Razorback appeals the finding that Perkins was performing

employment services at the time he was fatally injured. Razorback contends that this finding

is not supported by substantial evidence and is an erroneous interpretation of the law. We

affirm.

In reviewing Commission decisions, we view the evidence and all reasonable

inferences deducible therefrom in the light most favorable to the Commission’s decision and

affirm it if it is supported by substantial evidence. Hill v. LDA Leasing, Inc., 2010 Ark. App.

271, 374 S.W.3d 268. Substantial evidence exists if reasonable minds could reach the

Commission’s conclusion, and we will not reverse unless fair-minded persons could not have
Cite as 2015 Ark. App. 368

reached the same conclusion when considering the same facts. Id. We will reverse if the

Commission’s decision is based on an incorrect application of the law. Id.

Given the sole issue on appeal, we turn to the case law to determine when an

employee is deemed to be performing employment services. A compensable injury is one that

arises out of and in the course of employment, but it does not include one that is inflicted on

an employee at a time when employment services are not being performed. Wallace v. W.

Fraser South, Inc., 365 Ark. 68, 225 S.W.3d 361 (2006). The Workers’ Compensation Act

does not define the phrase “in the course of employment” or the term “employment

services.” Id. Our supreme court has taken on the task of defining these terms in a manner

that is compliant with the strict construction required of the Act. Id. Since 1993, the

supreme court has held several times that 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. This

inquiry depends on the particular facts and circumstances of each case. Texarkana Sch. Dist.

v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).

Arkansas courts have held that injuries sustained by employees during restroom breaks

and while employees are on their way to and from restroom facilities are compensable. Pifer

v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002); Collins v. Excel Specialty Prods., 347

Ark. 811, 69 S.W.3d 14 (2002); Matlock v. Ark. Blue Cross Blue Shield, 74 Ark. App. 322, 49

S.W.3d 126 (2001). Additionally, injuries sustained by employees during required breaks that

are found to benefit employers have also been found to be compensable. See, e.g., Dearman

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v. Deltic Timber Corp., 2010 Ark. App. 87, 377 S.W.3d 301. We have held that an injury is

compensable when it is clear that the injury occurred during a break that was solely to benefit

the employer, even if the break was not required. Hudak-Lee v. Baxter Cnty. Reg’l Hosp.,

2010 Ark. App. 121.

Our case law further provides that, even when an employee is engaged in conduct

permitted by the employer, if not specifically authorized by the employer, and nothing in the

record indicates that the employee’s actions are inconsistent with his employer’s interests in

advancing the work, then compensability may be found. Wallace, supra (holding that when

offsite employee was returning to work from a permissible break while still on the clock and

not in a manner inconsistent with employer’s interest, the employee was performing

employment services); Mitchell v. Tyson Poultry, Inc., 104 Ark. App. 327, 292 S.W.3d 848

(2009) (holding that when employee was finished with his break and en route to receive

further work instructions, this constituted performance of employment services). Once an

employee has completed a deviation from employment, he or she is once again performing

employment services. Wood v. Wendy’s, 2010 Ark. App. 307, 374 S.W.3d 785.

If an injury occurs when the employee is not on company premises or property, this

does not necessarily bar receipt of workers’ compensation benefits, when the claimant must

travel by the very nature of his or her employment. See Sw. Ark. Dev. Council, Inc. v. Tidwell,

95 Ark. App. 27, 233 S.W.3d 190 (2006). Special emphasis has been made and

compensability has been found when the facts show that the employee is returning to

work after a break. Wallace, supra; Pifer, supra; Matlock, supra. The Commission is bound to

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examine the activity appellant was engaged in at the time of the accident when determining

whether he was performing employment-related services. See Smith v. City of Fort Smith, 84

Ark. App. 430, 143 S.W.3d 593 (2004) (holding that the critical inquiry is whether the

employer’s interests were being directly or indirectly advanced by the employee at the time

of the injury).

The facts are largely undisputed, as noted by the parties. Perkins had worked for

Razorback for about ten years when he died on the morning of March 11, 2013. At

approximately 4:30 a.m. that day, Perkins reported to his job as a tanker-truck driver. Perkins

was dispatched in a truck from the company’s West Memphis facility, and drove it to a

Memphis facility for it to be loaded with raw Portland cement. From there, Perkins drove

to the company’s Blytheville facility for unloading, arriving shortly before 6:35 a.m. The

employee responsible for opening the facility gates had not arrived to open the locks.

While waiting for the facility to be opened, Perkins drove a half mile to the only

convenience store in that area, the Hard Hat. Perkins was not required to clock out. He

was on paid company time and was not breaking any company policy by going to the

convenience store. Perkins was responsible for the security and maintenance of the truck and

its load while he was driving.

Razorback’s area manager testified that the Blytheville plant opens between 6:30 and

7:00 a.m., not a set time. The manager stated that Perkins was never advised to refrain from

stopping on his driving route; he was allowed to stop if he needed to. Perkins was not

instructed on what to do if he found the facility gates locked. The manager explained that

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the truck drivers “are kind of on their own. They are responsible for that. . . . He was not

doing anything prohibited by going to the Hard Hat.”

Perkins parked the truck on the shoulder of the road, directly across the five-lane

highway from the store. He crossed the highway on foot, entered the store, bought a

breakfast sandwich and a drink, and left to return to the truck. Perkins attempted to cross the

highway, making his way to the center turn lane, but he was struck by a vehicle and died a

few hours later from blunt-force trauma. The police report and death certificate recited the

time of the accident as 6:44 a.m.1

On this evidence, the Commission found that Perkins was performing employment

services at the time he was injured. The Commission reviewed numerous appellate cases on

this subject and found that the truck and its load remained the responsibility of Perkins, that

this break was reasonable and permitted by the employer, that the employer’s facility to which

Perkins drove was not open and prevented Perkins from completing his work task at that

time, and that Perkins was injured after finishing his break, ending any deviation and returning

to his truck to complete his delivery. The Commission found that the act of his walking back

to his truck “was clearly an act of returning to his job duties” and constituted performance of

employment services.

On appeal, Razorback argues that Perkins was not actually back in his work truck or

on company property at the time he was injured. Further, Razorback contends that Perkins

1
The death certificate also listed this as an accident occurring at work.

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remained on a purely personal deviation from his work at the time of his injury. We cannot

agree.

Perkins was on paid company time, responsible for his truck during his workday, a

half mile away from the employer’s locked and gated facility, and returning to work after this

permissible deviation had been completed. Whatever “employment services” means must be

determined within the context of individual cases, employments, and working relationships,

not generalizations made devoid of practical working conditions. Engle v. Thompson Murray,

Inc., 96 Ark. App. 200, 239 S.W.3d 561 (2006). We hold that the Commission’s decision is

not erroneous because reasonable minds could conclude as the Commission did.

Affirmed.

GLADWIN, C.J., and VIRDEN, J., agree.

Friday, Eldredge & Clark, LLP, by: Guy Alton Wade and Phillip M. Brick, Jr., for
appellants.

Orr Willhite, PLC, by: M. Scott Willhite, for appellee.