dissenting. As noted in the majority opinion, under our workers’ compensation law, a “compensable injury” is defined as “[a]n accidental injury ... arising out of and in the course of employment...” Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2003)(emphasis added). However, 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) (Supp. 2003)(em-phasis added). While “course of employment” and “employment services” are not defined in the statutes, the Arkansas Supreme Court recently equated the two phrases. The supreme court stated that it uses “the same test to determine whether an employee was performing ‘employment services’ as [it does] when determining whether an employee was acting within ‘the course of employment.’” Pifer v. Single Source Transp., 347 Ark. 851, 857, 69 S.W.3d 1, 4 (2002) (citing White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997)); Collins v. Excel Specialty Prod., 347 Ark. 811, 817, 69 S.W.3d 14, 18 (2002) (citing the same cases). According to Pifer and Collins, “[t]he 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 direcdy or indirectly.’” Id. The supreme court overruled all prior decisions of this court to the extent that they conflicted with Pifer and Collins. Pifer, at 859, 69 S.W.3d at 5; Collins, at 819, 69 S.W.3d at 20.1
While the majority states that this is the test, it does not then apply the test. After applying this test, I must conclude that appellant was performing employment services. As the majority notes, on the day of his injury and as was “generally part of appellant’s job,” appellant reported for work and spent the day removing debris from appellee’s temporary dump site on appellee’s property to the city landfill. As also noted by the majority, appellee permitted employees to remove the debris and use it for their own benefit; thus, appellee did not require that the debris had to end up at the landfill. Further, as the majority notes, appellant was still “on the clock” at the time of the accident. Therefore, while operating within the time and space boundaries of his employment, appellant was injured while carrying out appellee’s purpose or advancing the employer’s interest directly or indirectly by removing debris from appellee’s property.
While the majority states that “appellee never compelled [appellant] to remove the waste for his own benefit,” I note that removal of the debris was part of his job, and appellee permitted removal of the debris for personal use. The test set out in Pifer and Collins asks whether the injury occurred when the employee was advancing the employer’s interests, directly or indirectly. Hence, the majority’s denial of benefits is ironic in that it acknowledges that “the removal of the waste by appellant may have advanced appellee’s interests, at least indirectly,” and that “appellant was engaging in an activity that benefitted appellee to some extent.”
The majority also states that appellee did not compel appellant to discard “unwanted waste objects” from his personal truck. I note further that the majority makes much of appellant’s use of his own truck for the permitted removal of debris for his personal needs, suggesting that he could have used appellee’s truck to take the debris to the landfill. This ignores the fact that appellee permitted the debris to end up somewhere other than the landfill. And I ask, rhetorically, how else could appellant have removed the debris for his permitted personal use? By hand? By using appellee’s truck? Surely, permission to remove the debris implied permission to remove the debris wanted by the employee by some practicable means available to the employee.
Also, the majority states that appellant “was near the end of the shift and no additional loads were going to be hauled to the landfill on that particular day.” This ignores appellee’s associated benefit from appellant’s continued work. The quoted language seems to suggest that denial of benefits was appropriate because appellant continued to remove the debris before his shift ended, leading one to conclude that the majority is denying benefits because appellant did not knock off early.
Based on the applicable law and relevant facts, I cannot reach any other conclusion than that appellant’s removal of debris from appellee’s temporary dump site during work hours constituted employment services and that the accident arose in the course of employment.
I respectfully dissent.
Griffen, J., joins in this dissent.
The fulcrum on which the majority’s decision totters, the case of Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), is of doubtful precedential value. In denying benefits, the Harding court, rather than reckoning the phrases “course of employment” and “employment services” as equal, considered them as if they stood in opposition. Further, the Harding court affirmed the denial of benefits even while acknowledging that the employer’s interests may have been indirectly advanced. Harding, at 139, 970 S.W2d at 304. All of this conflicts with the test set out in Pifer and Collins, which, as stated above, asks whether the injury occurred when the employee was advancing the employer’s interests, direcdy or indirecdy. And as noted above, our supreme court overruled all prior decisions of this court to the extent that they conflicted with Pifer and Collins. Further, I also note that the majority cites to Olsten Kimberly Quality Care v. Pettey,328 Ark. 381, 944 S.W.2d 524 (1997), which the majority says stands for the proposition that a claim is compensable when the claimant’s incidental activity is an inherendy necessary part of her employment. That case, however, does not mandate that only inherendy necessary conduct is compensable. In Pifer and Collins, the test is otherwise.