dissenting. This court has reversed the Commission’s opinion, which found that appellant was not performing employment services at the time he was allegedly injured and, therefore, denied him benefits. I respectfully dissent because I believe that there is substantial evidence to support the Commission’s denial of benefits.
A recitation of our standard of review is critical to my opinion in this case. We- review the evidence in a light most favorable to the Commission’s decision and affirm the decision if it is supported by substantial evidence. Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d 877 (2006). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result from the Commission; unless we conclude that reasonable minds could not reach the conclusion reached by the Commission, we are required to affirm its decision. Id. In this case, the Commission specifically found that appellant was off-duty at the time of the alleged injury and that he failed to prove by a preponderance of the evidence that he was performing employment services. In my view, the Commission’s decision is supported by substantial evidence and should be affirmed.
In support of its decision to reverse the Commission’s determination, the majority relies upon appellant’s testimony that employees rarely stayed in a motel unless they were on a two-day layover; that he saved money by staying in his truck; and that staying in the truck benefitted his employer by providing security. The majority then compared the facts of this case to the facts in Jivan v. Economy Inn & Suites, 370 Ark. 414, 260 S.W.3d 281 (2007), in which the supreme court affirmed an award of benefits for the family of Nimisha Jivan, the assistant manager of a hotel, who died in a fire at the hotel while she was off-duty but while she was changing her clothes in the bathroom of her hotel room. In Jivan, the supreme court relied on the parties’ stipulation that Mrs. Jivan was required to live at the hotel and was always considered to be on-call to address any hotel-related issues. The court held that Mrs. Jivan’s injury was compensable as a residential employee who indirectly advanced the interests of her employer. However, the court noted that its holding would “not extend workers’ compensation coverage to include every possible scenario, but rather in a more narrow sense, it will cover those injuries, particularly those from extraordinary natural causes, that residential employees sustain on their employers’ premises.” Id. at 420, 260 S.W.3d at 286 (emphasis added).
I disagree with the majority that the holding in Jivan requires reversal of the Commission’s decision in this case. The facts in this case are significantly different from the facts that were critical to the court’s decision in Jivan. Appellant was not a residential employee and did not sustain an injury on his employer’s premises. In attempting to compare this case to Jivan, the majority refers to appellant’s truck as the “premises” and as his “mobile office.” In fact, to use the supreme court’s analysis in Jivan, we must assume that appellant’s truck is the employer’s “premises.” It is only when an employee resides on the employer’s property that he is in fact a residential employee. Residence means “the place, esp. the house, in which a person lives or resides; dwelling place; home.” Webster’s College Dictionary 1145 (1996). A company vehicle ■— even one with a sleeping compartment — is not a residence. In fact, appellant testified that he “resided” in Billings, Montana. Unless we are going to extend the definition of a residential employee from those employees required to live on the jobsite and remain on-call twenty-four hours per day to truck drivers, or any other employee who spends a significant amount of time in a vehicle owned by his or her employer, appellant was not a residential employee.
The question in this case is whether there is substantial evidence to support the Commission’s decision that an off-duty truck driver, who injured himself while allegedly attempting to climb into his company-owned truck to sleep, was not performing employment services. The Commission found that the credible testimony demonstrated that appellant was off duty at the time he slipped and fell. It also found that he was not returning to his truck to perform any work-related activity, but to sleep. The Commission found that appellant was “free to do as he pleased” at the time of the incident and the fact that he chose to sleep in his truck did not imply that he was advancing his employer’s interests, either directly or indirectly, by doing so. There was no testimony by appellant or anyone else that appellant was required to sleep in his truck. In fact, he testified that sometimes he would get a motel room and “sometimes” he needed permission to get a motel room and “sometimes” he did not need permission. This testimony certainly did not establish that appellant was required by his employer to sleep in his truck.
The Commission also found that, even if inspecting the truck rose to the level of employment services, appellant had completed the inspection before he decided to climb into the truck to retire for the evening. The Commission stated that the completed inspection did not transform his decision to retire for the evening into an employment activity. I believe that reasonable minds could accept this evidence as adequate to support the Commission’s decision.
The Commission found that appellant was off-duty. Where he chose to spend his off-duty time — in his truck — does not change this critical fact. Because he was off-duty when he was allegedly injured, the Commission determined that he was not performing employment services. We have affirmed the Commission’s denial of benefits for a truck driver who was injured in the bathroom while “on-call” in a hotel room provided by his employer. Cook v. ABF Freight Sys., Inc., 88 Ark. App. 86, 194 S.W.3d 794 (2004). We also affirmed the denial of benefits for a truck driver who was injured while showering in a truck stop during his required eight-hour break between deliveries. Kinnebrew v. Little John’s Truck, Inc., 66 Ark. App. 90, 989 S.W.2d 541 (1999). Like the appellant in this case, these truck drivers were off-duty. One was in the bathroom of a hotel room provided by his employer and one was in a truck-stop shower; appellant was getting into his truck to sleep. However, all were off-duty and free to do as they pleased.
It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001). The Commission did not believe appellant’s testimony that, by getting into his truck to sleep, he was performing employment services. While acknowledging the proper standard of review, the majority nonetheless ignores it, disregards the Commission’s conclusion, and concludes instead that appellant was injured while getting into his “premises” to sleep. Although there may be a case in which a truck driver should be compensated for an injury received while sleeping in his truck, I do not believe that this is that case. There was no evidence that appellant’s employer either required or requested that appellant sleep, eat, or otherwise remain in his truck during his free time. Appellant chose to go out to a restaurant, eat a steak, and drink some beers; he then chose to return to his truck to sleep. In my view, there is substantial evidence to support the Commission’s decision that appellant was not performing employment services at the time of the incident because he was off-duty and was, therefore, “free to do as he pleased.” Therefore, I would affirm.
Heffley, J., joins this dissent.