dissenting. I respectfully disagree with the dge, the majority that appellant, Tony Moncus, was not performing employment services at the time of his accidental death. Appellee Billingsley Logging1 was in the business of harvesting logs under contract with Weyerhaeuser. Moncus was employed by Billingsley as a log cutter who was paid according to the weight of the logs that he cut. The site of the log harvesting varied in location from time to time and was determined by Billingsley in coordination with Weyerhaeuser. Under normal circumstances, Moncus would know the location of the job site on any given day, and would drive his personal truck from his home to the site, where he would begin his assigned job of cutting logs. However, on rare occasions, “two or three times a year” according to Billingsley, a work site would be unknown to Billingsley’s employees in advance, so they would be instructed by telephone to meet at a location specified by Billingsley, from which location the employees would follow Billingsley in convoy fashion to the day’s work site. The day that Moncus was killed, August 19, 2003, was one of those rare occasions.
Billingsley testified that on August 19, he instructed Moncus and the other employees to meet him at the Shell gas station in Nashville, Arkansas, “because we [were] moving to a new tract of timber over in the Hope area and they would have to follow me to work to know where they were going. They didn’t know where it was. I did.” Billingsley further testified that meeting at the Shell station “was not an optional meeting, it was mandatory if they wanted to work that week,” and that “[w]e did not discuss how we were going to get to the new tract of land. I just told them to stay behind me. To follow me. It was kind of like a convoy. I was leading. I expected them to follow me.” Moncus was killed in a head-on automobile collision while following Billingsley to the new job site. In my opinion, Moncus was performing employment services at the time of his fatal automobile accident, and his death was therefore a compensable workers’ compensation claim.
I disagree with the majority’s holding that this case is analogous to American Red Cross v. Hogan, 13 Ark. App. 194, 681 S.W.2d 417 (1985). In Hogan, a nurse was precluded by the going-and-coming rule from receiving workers’ compensation benefits when she was injured in an automobile accident while she was en route to a location where she was to meet a bloodmobile that would transport her to a designated place of work. However, Moncus’s death did not occur while he was en route to the Shell station. Had that been the case, I would agree that his trip would have been within the going-and-coming rule and that his death would not be compensable under our workers’ compensation law. Rather, here, Moncus had safely arrived at the Shell station where Billingsley had instructed his employees to meet him, and he was later killed while performing the task he was directed to perform, following his employer to the new work site.
In my view, the majority’s analysis of this case misses the mark by failing to acknowledge that workers’ compensation cases involving the going-and-coming rule, both before and after the passage of Act 796 of 1993, have been analyzed in the light of whether an employee was acting at the direction of his or her employer. Simply put, when a claimant is doing something that is generally required by his or her employer, the claimant is providing employment services. Ray v. Univ. of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999). See also Linton v. Arkansas Dep’t of Correction, 87 Ark. App. 263, 190 S.W.3d 275 (2004); Shults v. Pulaski County Special Sch. Dist., 63 Ark. App. 171, 976 S.W.2d 399 (1998). The phrase “performing employment services” is synonymous with the phrase “acting within the course of employment,” in that the test for determining both is whether the injury occurred “within the time boundaries of employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interests directly or indirectly.” Collins v. Excel Spec. Prods., 347 Ark. 811, 69 S.W.3d 14 (2002).
I disagree with the Commission’s finding that it could not be said that the employee’s travel to a tract of land where new work would begin, which location was not familiar to the employees, advanced the employer’s purpose or interest any more than any other day when the employees travel to a tract where timber was cut. As the majority notes, Billingsley admitted that having his employees meet him at the gas station benefitted his company and insured that he could successfully conduct his business on the day at issue. Moncus was placed on the highway at his employer’s direction, dutifully following the employer from Nashville to an unknown location near Hope to learn where he was to cut logs that morning.
The majority repeatedly notes that Moncus was driving his own vehicle at the time of his fatal accident, apparently to make it clear that Moncus’s accident did not fall within the employer-provided-transportation exception to the going-and-coming rule. It seems to be the position of the majority that the employees who advanced Billingsley’s interests by going to the unknown logging site in Billingsley’s trucks would have been afforded workers’ compensation protection, while employees, like Moncus, who advanced Billingsley’s interests by following Billingsley to the unknown work site in their private vehicles would not have been afforded workers’ compensation protection. In my opinion, this approach makes the controlling issue the manner in which an employee carried out his advancement of the employer’s interests, instead of whether the employee was performing employment services at the time of his or her accident.
The majority also emphasizes that Moncus was not engaged in log cutting, and therefore was not being paid, at the time of his fatal accident. The majority ignores well-established precedent that employment, for workers’ compensation purposes, is not limited to the task that a person was hired to do. Whatever the normal course of employment may be, the course of employment may be enlarged when the employer assigns tasks outside the usual scope of employment. Bell v. Tri-Lakes Servs., 76 Ark. App. 42, 61 S.W.3d 867 (2001). The fact that an employee is not compensated during travel is not dispositive in determining whether employment services are being performed; however, whether an employee requires an employee to do something may be dispositive of whether the activity constituted employment services. Id. See also Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997); Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001); Ray v. Univ. of Arkansas, supra; Arkansas Dep’t of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991).
I would hold that Moncus, even though traveling in his own vehicle so that he could leave early in the afternoon, was carrying out his employer’s purpose and directly advancing the employer’s interests by following him to the new job site in the morning. I would hold that Moncus was performing employment services and, thus, that his claim was not precluded by the going-and-coming rule.
I would reverse the denial of benefits in this workers’ compensation claim. Therefore, I respectfully dissent.
Billingsley Logging is a sole proprietorship owned by Mitchell Billingsley. Billings-ley Logging and Mitchell Billingsley will be referred to interchangeably throughout this dissenting opinion simply as Billingsley.