dissenting. I would grant the appellee’s motion for rehearing. This is an appeal from the Workers’ Compensation Commission in which this court reversed the Commission’s award holding that appellee, an officer with the Arkansas State Police, was entitled to benefits because of an injury received while assisting other law enforcement officers serve a search warrant.
This court reversed the Commission’s decision, see Arkansas State Police v. Davis, 45 Ark. App. 40, 870 S.W.2d 408 (1994), on the basis that appellee, who was on temporary administrative suspension at that time, was outside the scope and course of his employment.
The Commission, however, affirmed and adopted the administrative law judge’s decision which held:
The question to be determined is not whether Davis was engaged in an activity prohibited by his employer at the time of his injury. The question is whether or not the employee’s conduct was of a nature that advanced the general interests of his employer even though it may have taken place during a prohibited time period. See 1A Larson Workers’ Compensation, Section 31.24. I find that Davis’ actions in maintaining his confidential sources and passing that information on to the proper authorities and, at the request of those authorities, accompanying them for the service of the search warrant, and his attempts to aid his fellow officers when shots were fired did advance the interests of the Arkansas State Police in enforcing drug laws. As was admitted by the Arkansas State Police, but for the suspension with pay, Davis’ actions were exactly those he would have been required to do in carrying out his regular job duties.
The evidence, in my opinion, clearly supports the law judge’s decision, and his opinion was adopted by the Commission. The law judge’s opinion relies on section 31.24 of Larson’s publication on workers’ compensation law. This court’s opinion takes the view taken by the case of Fowler v. Baalmann, 361 Mo. 204, 234 S.W.2d 11 (1950), cited by Larson. However, Larson does not indicate that he agrees with the Fowler decision, and he states:
With this case may be compared a Texas case in which an instructor-pilot was killed while giving a student-flyer a lesson a day after his employer had ordered him to return the plane to its homefield. It was held that his death was nevertheless in the course of his employment. The court said:
If it were a part of Boggs’ business as employee to give flying lessons, then the fact that he disobeyed instructions to return the plane at the time he was directed to do so did not remove him from the course of his employment.
1A Larson, Workmen's Compensation Law, § 31.24 at 6-34 (1993).
The evidence in this case shows that, although the appellee was on suspension at the time he was injured, his confidential informants continued to give him information, which he passed on to other officers working on the Drug Task Force, and that an informant said it would be necessary for appellant to be at the house to be searched in order for the officers to discover where the drugs were hidden. While at this house, during the time the officers were attempting to execute the search warrant, the appellee was hit by a shot fired through the door by someone in the house.
Under these circumstances, the Commission found that the act of helping his fellow officers was not prohibited; it was only the time at which the act was done. This was an issue of fact and the Commission’s finding is supported by substantial evidence.
I would grant rehearing.
Cooper, J., joins.