dissenting. I write separately to explain why I dissent from the majority’s reversal of the Commission’s decision denying this claim.
At the hearing before the administrative law judge, appellant Ricky Wallace asserted that the injury occurred after he had returned from his afternoon break on his job as a forklift operator for appellee West Fraser South, Inc. The company and its insurance company contended that the injury was not compensable because he was injured during a work break.
An injury is not compensable if it 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). In determining the sufficiency of the evidence, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission, and we will affirm if those findings are supported by substantial evidence. Winslow v. D & B Mech. Contr., 69 Ark. App. 285, 13 S.W.3d 180 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). Where the Commission’s denial of relief is based on the claimant’s failure to prove entitlement to benefits by a preponderance of the evidence, the substantial evidence standard of review requires affirmance if the Commission’s opinion displays a substantial basis for the denial of the claim. Id.
In his testimony at the hearing, appellant stated that contractors at his workplace “laid a board where they could walk across there and go to the bathroom and stuff without having to wade mud.” Appellant further testified that the green stacker broke down after he returned from his break, when he was back on his forklift and had put more lumber on the chain. He stated:
The green stacker broke down and I stepped off of the lift to see how long it was going to be down.... It broke down and I got off to see how long it was going to be down where I would know if I would have enough time to go fuel the lift and come back. If the machine was down, I was going to go ahead and fuel it up for the nightshift operator so he would not have to drive it up there and fuel it up.
When I talked to the operator, they had got it ready and were fixing to start it. I was headed back to my lift when I slipped and fell.
In rebuttal to appellant’s hearing testimony, appellees introduced into evidence a tape-recorded statement that appellant had given to a claims investigator only a few days after his injury. Appellant’s tape-recorded account of the accident makes no mention of an equipment breakdown, or of appellant’s inquiry about the time the repairs to the green stacker would take and whether he would have time to refuel his lift. In explaining the inconsistency between the tape-recorded statement and his hearing testimony, appellant testified at the hearing that the recorded statement was made at 9:00 a.m two days after the accident, when the claim adjuster’s phone call woke him up. Appellant now argues that the Commission was wrong to find his recorded statement to the claims adjuster more credible than his hearing testimony.
The Commission’s decision includes the following explanation of this determination:
[T]he claimant’s statement of events leading up to his accident as provided in the recorded statement are at least as persuasive, if not more so that the claimant’s hearing testimony. Claimant’s recorded statement was provided within just one week of the accident when the events of the accident were freshest in his memory. Claimant stated at that time that he was just coming off of a break when the accident occurred. At no time did the claimant mention that he had already returned to work from his break and was just checking on the timing for the repairs of the unexpected breakdown. With the breakdown being an unusual and unexpected event, it is unlikely that the claimant would have forgotten or overlooked this detail when he provided his recorded statement. Moreover, given the fact that the claimant’s recorded statement is inconsistent with his hearing testimony, the lack of any corroborating testimony or evidence regarding the green stacker being down and claimant’s inquiry into how long it was going to be down diminishes the weight of claimant’s hearing testimony.
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). Unless we conclude that reasonable minds could not reach the conclusion reached by the Commission, we are required by our standard of appellate review to defer to the Commission’s determination that appellant’s tape-recorded statement was more credible than his testimony regarding the occurrence of his injury. Arkansas Elec. Coop. v. Ramsey, 87 Ark. App. 254, 190 S.W.3d 287 (2004); Privett v. Excel Spec. Prods., 76 Ark. App. 527, 69 S.W.3d 445 (2002). While acknowledging this standard, the majority, nonetheless, ignores it, disregards the Commission’s conclusion, and concludes that appellant was injured after he had returned from his break.
Here, it was up to the Commission to resolve the inconsistencies between appellant’s hearing testimony, which revealed a legitimate work-related reason for his being off his forklift and walking across the board at the time of his fall, and appellant’s tape-recorded statement, in which appellant stated that he was returning from his break at the time of his fall. Significantly, in contradiction to his hearing testimony, which the Commission found not to be credible, appellant’s tape-recorded statement did not say that he had already returned from his break and resumed his work at the time of his injury. In fact, in appellant’s tape-recorded statement he clearly said that he fell from the board as he was in the process of returning from his scheduled fifteen-minute break, but before he reached his work station.
While observing that appellant’s injury would have been compensable if it had occurred as described in his hearing testimony, the Commission said that it attached little weight to appellant’s hearing testimony, noting that in appellant’s recorded statement, which was provided within a week of the accident, appellant stated only that he was just coming off a break when the accident occurred. The Commission viewed this statement as “at least as persuasive, if not more so” than his hearing testimony. The Commission concluded that appellant had failed to prove that he was performing employment-related services or was engaged in the primary activity that he was hired to perform when he was returning from his break and fell.
In addition to challenging the Commission’s determination of credibility, appellant cites the following cases that hold a claim to be compensable because the claimant was performing employment services at the time of injury. I believe that the cases upon which appellant relies are distinguishable from the present case.
In White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999), a claim was held to be compensable when an employee injured himself on a smoke break that he had to take in an area where he could monitor the dryers, since there was no relief worker available to do the monitoring. Unlike the claimant in White, appellant here offered no evidence that he was required to perform any direct or indirect services for his employer during his break.
In Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999), a claim was held to be compensable where the employee, a food-service worker on paid break, was required to interrupt her break to be available to assist students. Unlike the claimant in Ray, appellant here offered no proof that he was required during his break to perform any services that were generally required by his employer.
In Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999), a claim was held to be compensable when a resource teacher who worked on three different campuses, after being given duties for the day by the librarian, left the school building with permission of the principal to retrieve from her car the glasses that she required to read fine-print instructions for her assigned project. She was injured when she slipped on ice in the parking lot. We held that retrieving the glasses required to do her job constituted the performance of employment services. Unlike the claimant in Fulton, appellant here offered no proof that at the time of his fall, he was performing any act required of him by his employer.
In Shults v. Pulaski County Special Sch. Dist., 63 Ark. App. 171, 976 S.W.2d 399 (1998), a claim was held to be compensable where a claimant, before clocking in, entered a building to disarm an alarm, as it was his duty to do. As it turned out, the alarm had already been disarmed. We held that in attempting to perform his duty to disarm the alarm, claimant was carrying out the employer’s purpose and advancing his employer’s interests, which therefore constituted performance of employment services. Unlike the claimant in Shults, appellant here offered no proof that at the time of his injury he was performing any act that was carrying out the employer’s purpose or advancing his employer’s interests.
In Collins v. Excel Spec. Prods., 347 Ark. 811, 69 S.W.3d 14 (2002), the supreme court held compensable an injury that occurred when an employee left a meat-cutting conveyor line to go to the bathroom, as employees had standing permission from their employer to do, and she slipped and fell down on the way there. The supreme court said:
We note that the activity of seeking toilet facilities, although personal in nature, has been generally recognized as a necessity such that accidents occurring while an employee is on the way to or from toilet facilities, or while he or she is engaged in relieving himself or herself, arise within the course of employment.
Id. at 818, 69 S.W.3d at 19; see also Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002) (noting that the activity of seeking toilet facilities, although personal in nature, has been generally recognized as a necessity such that accidents occurring while an employee is on the way to or from toilet facilities, or while a claimant is engaged in relieving himself or herself, arises within the course of employment).
Collins is expressly limited to injuries that occur when an employee leaves his or her work station for the purpose of going to the bathroom, relieves himself or herself, and returns to the work station. Although the appellant here testified that he slipped on a board that had been placed by contractors over a ditch so that they could walk across it “to go to the bathroom and stuff,” he did not testify that at the time of his injury, his purpose in walking across the board was to go to or come from the bathroom. He did not mention in his testimony that he had gone to the bathroom, either on his fifteen-minute break, or thereafter, when he now says he was injured.
In Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002), we held compensable an injury that occurred when an employee was hit in the back by a heavy-laden cart being pushed by another employee. The circumstances were that the claimant, who was employed as a cashier, was not permitted under Wal-Mart’s employee handbook, for theft prevention purposes, to have any personal items at the cashier station, and all personal items were to be kept in the employee locker provided by Wal-Mart. At the time for the claimant’s regular fifteen-minute break, she clocked out and went to her locker to get cigarettes, lighter, and soda money, and proceeded to the break room. After her break, she returned to her locker to secure her personal items, as required, before returning to her cashier’s station. As she squatted down to do so, she was hit by the cart; she immediately reported the incident. In affirming the Commission, we held that under the facts presented, reasonable minds could clearly find that the injury occurred within the time and space bounds of the employee’s employment, while the claimant was carrying out Wal-Mart’s purpose or advancing Wal-Mart’s interests. Here, unlike in Sands, appellant offered no evidence that when walking across the board, he was doing anything that he was required by his employer’s handbook to do or that he was otherwise committing any act that carried out his employer’s purpose or advanced its interests.
Although the basis of the majority’s decision is not entirely clear, it is apparently the position of the majority that under Collins v. Excel Spec. Prods., supra, and Pifer v. Single Source Transp., supra, it is immaterial whether appellant was injured while on scheduled break or returning from it, so long as the injury occurred while appellant was “within the time and space boundaries of employment, when the employee [was] carrying out the employer’s purpose and advancing the employer’s interests directly or indirectly.” I do not believe that either Collins or Pifer supports the majority’s position. Both of those cases involved employees who were injured while either going to or returning from the bathroom. In Pifer, the supreme court said that “the activity of seeking toilet facilities, although personal in nature, has been generally recognized as a necessity such that accidents occurring while an employee is on the way to or from toilet facilities, or while he or she is engaged in relieving himself or herself, arise within the course of employment.” 347 Ark. at 858, 69 S.W.3d at 5. The supreme court went on to hold that “Mr. Pifer’s restroom break was a necessary function and directly or indirectly advanced the interests of his employer.” Id. at 859, 69 S.W.3d at 5. As already discussed, there is no evidence that, at the time of appellant’s injury, he was going to or coming from the bathroom.
Finally, I do not believe that appellant made the argument to the Commission, nor does he make the argument on appeal, that the majority now uses as its basis for holding appellant’s injury to be compensable. As evidenced by his testimony, the only basis for appellant’s compensability argument to the Commission was that he was injured at approximately 3:05 p.m., some twenty minutes after his return from break. It is well settled that we will not consider arguments advanced for the first time on appeal. Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998). Nor does appellant advance the majority’s position on appeal. Except for his citation to the cases discussed herein, appellant’s argument consists of one short paragraph and a conclusion reiterating his position that because he wasn’t injured until 3:05 p.m., he was performing employment services. In the third and final sentence of his conclusion, he suggests for the first time that the Commission should be reversed “because even if he was on break, he was within the time and space boundaries of his employment and was advancing his employer[’]s interests.” Because he cites no authority and makes no persuasive argument in support of this position, we should reject this argument. Matthews v. Jefferson Hosp. Ass’n, 341 Ark. 5, 14 S.W.3d 482 (2000).
In light of the Commission’s determination of the weight and credibility of the evidence, and viewing the facts in the light most favorable to the Commission’s findings, I would affirm the Commission’s finding that appellant failed to prove that he was performing employment-related services when he was returning from his break and fell. Therefore, I would hold that the Commission’s decision displays a substantial basis for the denial of this claim.
Gladwin and Vaught, JJ., join.