dissenting. While the decision reached by the majority in this case appears to be fair and just, I dissent because I believe that it is not supported by Act 796 of 1993 and the parameters established by the legislature and prior decisions of this court and the supreme court. This court has struggled with this case and two others currently under submission concerning the same issue. The majority in each case has reached the conclusion that I have sought and hoped for, but have failed to reach.
There is not one judge, or any reasonable person, who would not believe that the law should provide workers’ compensation coverage for Ms. Matlock when she was injured after leaving her desk during regular work hours to use the restroom. As discussed by the majority, under prior Arkansas law personal comforts were an integral part of the work day and were covered routinely as necessary adjuncts to the work experience. Other jurisdictions universally recognize them and provide coverage. However, by Act 796 of 1993, the Arkansas General Assembly made a conscious decision to limit the rights of employees and to limit the liabilities of employers. Today this court begins to reverse that direction. I applaud my colleagues’ activism and agree wholeheartedly in the result, but I conclude that the court has usurped the legislative function.
When our General Assembly enacted Act 796 of 1993, it issued the following “Legislative Declaration,” codified at Ark. Code Ann. § 11-9-1001 (Repl. 1996):
It is the specific intent of the Seventy-Ninth General Assembly to repeal, annul, and hold for naught all prior opinions or decisions of any administrative law judge, the Workers’ Compensation Commission, or courts of this state contrary to or in conflict with any provision of this act. In the future, if such things as the statute of limitation, the standard of review by the Workers’ Compensation Commission or courts, the extent to which any physical condition, injury, or disease should be excluded from or added to coverage by the law, or scope of the workers’ compensation statutes need.to be liberalized, broadened or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers’ Compensation Commission, or the courts.
Act 796 excludes from the definition of “compensable injury” any injury sustained by an employee at a time when he is not performing employment services. Ark. Code Ann. § ll-9-102(4)(B)(iii) (Supp. 1999). Further, this section, as all of Act 796, must be strictly construed. Ark. Code Ann. § ll-9-704(c)(3) (Repl. 1996).
After recognizing these edicts, the majority concludes that the boundaries of the personal-comfort doctrine have been blurred by Act 796. However, I conclude that instead of blurring the boundaries, Act 796 made the boundaries rigidly clear. In order for a worker to be eligible for workers’ compensation benefits, the injury must be sustained in the course of employment, while the employee is performing employment services. The test for determining whether an employee was acting within the “course of employment” at the time of injury requires that the injury occur within the time and space boundaries of the employment, when the employee is carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).
Appellant’s trip to the restroom bears similarity to other types of personal comforts that have been subject to appellate review under the current Workers’ Compensation Act. These cases are discussed at length in the majority opinion, and are the basis for the majority’s conclusion that the court’s assertion in Beaver v. Benton County Child Support Unit, 66 Ark. App. 153, 156, 991 S.W.2d 618, 620, that the “personal comfort doctrine is no longer the law” is merely dicta.
In Beaver, this court upheld the Workers’ Compensation Commission’s decision that an injury suffered by an employee while she was on a lunch break during an out-of-town training seminar was not compensable because she was not performing employment services at the time she was injured. Judy Beaver worked as an investigator charged with enforcement of child-support orders for the Benton County Child Support Unit. In April 1997, she was attending a work-related software-training seminar in Fort Smith, Arkansas. During a lunch break, Beaver slipped while approaching a buffet line and fell to one knee. She ultimately sought treatment for her injury and was diagnosed with a lumbar disk herniation.
The Commission denied Beaver’s claim for benefits. In reaching its decision, the Commission found that since Beaver was on a lunch break and not performing any work-related activity within her job description, she was not acting for the benefit of her employer. The Commission noted that for an injury to be compen-sable, by law, it must occur while the employee is acting in the course of her employment.
This court upheld the ruling of the Commission, finding that there was substantial evidence showing that at the time of the injury Beaver was not engaged in an activity that advanced her employer’s interests. This court based its finding on the fact that she was injured while on a lunch break where attendance was not mandated and where the time was uncompensated. This court agreed with the Commission’s ruling that for an injury to be compensable, it must have occurred at a time when the employee was performing employment services.
I agree with the majority that the blanket pronouncement in Beaver of the death of the personal-comfort doctrine is too simplistic and was unnecessary for the court’s analysis. I also agree that the question of whether a worker performs employment services and sustains an accident within the course of employment are factual questions which are to be resolved based on the circumstances of each case. However, I am persuaded that this court concluded that Ms. Beaver’s employer was receiving no direct or indirect benefit from her time at lunch, even though her employer encouraged her to attend the luncheon.
Based on the controlling workers’ compensation law, my understanding of appropriate judicial authority, and the standard of review that this court is required to apply to a decision of the Workers’ Compensation Commission, I believe that the facts of appellant’s case support the Commission’s conclusion that she was not performing employment services at the time of the accident. In reaching this conclusion, I am especially persuaded by the four cases discussed at length by the majority. See White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999); Olsten Kimberly Quality Care, supra; Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999); and Crossett School District v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999).
The majority opinion relies heavily on Olsten Kimberly Quality Care, which gives the only clue to the definition of “employment services.” In Olsten Kimberly Quality Care, the claimant, Cheri Pet-tey, was a nursing assistant who was required to travel to each patient’s home to provide nursing services. She was injured in an automobile accident between the office of her employer and the home of her first patient of the day. The Commission awarded her benefits while noting that the definition of compensable injury excludes any injuries sustained when “employment services” are not being performed. See Ark. Code Ann. § 11-9-102 (5) (B) (iii). Because “employment services” are not defined in the statute, the Commission crafted the following guideline:
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.
Olsten Kimberly Quality Care, supra at 384, S.W.2d at 526. However, the Commission applied this guideline to Ms. Pettey’s claim by holding that “employees are performing employment services when they are engaged in travel which is an inherent and necessary incident of a required employment activity.” Finally, the supreme court, quoting from this court, reasoned that “[i]t is likewise clear that delivering nursing services to patients at their homes is the raison d’etre of the appellant’s business, and that traveling to patients’ homes is an essential component of that service.” Id. at 384, S.W.2d at 526.
The principles of the employment-services analysis set forth in Olsten Kimberly Quality Care have been applied in other cases considered on appeal. In White, supra, because the claimant was required to keep an eye on his work, was not given any relief help, and was told to take a break when he was able to, the supreme court overruled this court and found that the claimant had not left his work and was not on a personal break when he was injured while stopping to smoke a cigarette. Similarly, in Ray, supra, this court held that in order to be compensable, claimant’s injury must have occurred while the claimant was “performing employment services.” In that case, the claimant was injured in a slip-and-fall accident as she attempted to get a food item for her own consumption during a paid break. Ms. Ray was not only paid for the break time, she was subject to having the break interrupted if a student needed assistance. Those facts were a sufficient basis for concluding that the claimant was performing employment services at the time of the injury. Finally, in Fulton, supra, this court affirmed the Commission’s decision awarding benefits to a claimant who fell on ice in the employer’s parking lot while retrieving her reading glasses from her car. The claimant was a reading-media resources teacher who had, only moments before the accident, been assigned to read instructions that were in very fine print, and she was unable to perform this job function without the assistance of reading glasses, which were located in her car.
The connecting thread between Olsten, White, Ray, and Fulton is the direct.nexus between the incidental activity and the job. Employment services may include incidental activities only if they are inherendy necessary for the performance of the primary employment activity. In the instant case, there is not a sufficient nexus between Matlock’s job and her trip from the restroom. Whether or not an employee is performing employment services is a factual determination to be made by the Commission. We cannot reverse if there is substantial evidence to support that finding.
I am mindful of the argument that necessary bodily functions require attention and are not under the voluntary control of the employee. It would certainly be unlawful to deny restroom breaks for employees, but that is not a workers’ compensation issue. The only issue is whether the employee was providing employment services at the time of the injury. What is necessary for the employee is not necessarily advancing the employer’s interests directly or indirecdy.
Today’s decision, for the first time, shifts the emphasis from the employer’s interest to the employee’s necessity. That may be progressive. It is certainly compassionate. But workers’ compensation claimants cannot rely on this court to always make the compassionate call. The Arkansas General Assembly has retained the authority to make workers’ compensation law. It has the ability to protect workers from the harsh results that I believe are mandated by the present statutory scheme.
The standard of review in workers’ compensation cases is clear. The legislative history and intent of Act 796 are equally clear. Olsten, White, Ray, and Fulton bear important distinctions from the facts of this case. While the majority result may seem more palatable, it is an inappropriate erosion of well-settled law and an improper intrusion into the province of the legislature. Act 796 was a response, at least in part, to perceived judicial activism. I am concerned for the workers’ compensation claimant that decisions such as the majority opinion in this case may result in a legislative response that makes a claimant’s burden even more difficult.
It is my opinion that the decision of the Commission is supported by substantial evidence. Accordingly, I would affirm.
I am authorized to state that Judge ROBBINS joins in this dissent.