dissenting. The workers’ compensation laws were created to provide fast, reliable, and predictable coverage for injured employees. The laws also provide protection for employers from the almost unlimited liability of the tort system. In this case, the Texarkana School District elected to waive this protection and deny coverage to a twenty-five-year employee because he chose to park in a lot more convenient to his work area. Reversing the ALJ’s denial of benefits, the Commission crafted a well-reasoned opinion that relies on precedents from both our court and the supreme court. However, I believe that under our stringent standard of review, we are compelled to affirm. Therefore, I dissent.
The majority opinion ably surveys and summarizes the case law applicable to the issue of what constitutes performance of employment services in relation to an on-the-job injury. If a litigant, attorney, or the Workers’ Compensation Commission is looking for a bright line to answer the question, the majority opinion shows that, if nothing else is settled, certainly we can say there is no bright line. However, what we do know for sure is that the question of whether the employee is performing employment services at the time of injury is a question of fact, and on questions of fact we defer to the Commission to determine the credibility of witnesses. Williams v. L&W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). Our case law also clearly instructs an appellate court to affirm if, taking the evidence in the light most favorable to the Commission’s decision, there is substantial evidence to support it. Magnet Cove Sch. Dist. v. Barnett, 81 Ark. App. 11, 97 S.W.3d 909 (2003). If we disagree with the factual determinations of the Commission, or if the evidence would support a contrary finding, we still must affirm if reasonable minds could reach the Commission’s conclusion. Linton v. Ark. Dep’t of Corr., 87 Ark. App. 263, 190 S.W.3d 275 (2004).
With this in mind, I note that we affirm the Commission with great regularity on issues that we likely would have decided the opposite way if we had been the fact finders. I also note that until very recently our court has never reversed a Commission decision finding that an employee was performing employment services at the time of his injury. The exceptions are Economy Inns & Suites v.Jivan, 97 Ark. App. 115, 253 S.W.3d 4 (2007), which was reversed by the supreme court in Jivan v. Economy Inns & Suites, 370 Ark. 414, 260 S.W.3d 281 (2007), and this case.
Here, the school district argues, and the majority holds, that Cook v. ABF Freight Systems, Inc., 88 Ark. App. 86, 194 S.W.3d 794 (2004); Smith v. City of Fort Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004); and McKinney v. Trane Co., 84 Ark. App. 424, 143 S.W.3d 581 (2004), govern the decision in this case. In each of these cases our court affirmed the Commission’s ultimate denial of benefits based on a factual finding that the claimant had not been performing employment services at the time of his injury. I agree that if the Commission had analyzed this case under these precedents and applied the facts of this case to those precedents, it might have reached a conclusion that I could have voted to affirm. However, there is no bright line, and the appellate courts of Arkansas have supplied ample authority for the Commission to have broad discretion in its interpretation. As such, we must affirm if the Commission relies on that authority and renders a cogent decision based on the evidence.
The Commission relied on and analyzed the facts in the instant case using both Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999) (affirming Commission’s finding of employment services), and Wallace v. West Fraser South, 90 Ark. App. 38, 203 S.W.3d 646 (2005) (reversing Commission’s finding of no employment services).1 The Commission properly cited Ray, because Conner was “on call” at the time of his injury; the Commission properly cited Wallace, because Conner was returning to work after a break. These are both factual determinations that are supported in the evidence; Ray and Wallace therefore are both reliable appellate authority.
As easily as the majority attempted to distinguish Ray and Wallace, so can I distinguish Smith, McKinney, and Cook. In Smith, the employee was hauling debris from his employer’s dump for his own use. Certainly Conner was not doing anything for his own use here; he was returning to work after a break. In McKinney, the employee was injured on his way to get a soda during his smoke break. Conner was finishing his break and returning to work. Finally, in Cook the employee, a truck driver, was in a motel room, after work hours, going to the bathroom; a factual scenario that has no relevance to this case at all.
How the majority decision in this case instructs the bar and the Workers’ Compensation Commission is also of note. It surveys the case law on this issue and concludes that there are several cases with similar facts and conflicting conclusions. It encourages one to choose wisely and to anticipate (and apply) the precedent that the appellate court will apply. Until our precedent is consistent and coherent, I am satisfied to let the Commission do the picking and choosing and to affirm when the evidence supports its decision.
I am authorized to state that Judge Griffen joins in this dissent.
Our decision was affirmed by the supreme court in Wallace v. West Fraser South, 365 Ark. 68, 225 S.W.3d 361 (2006).