dissenting. I dissent because the majority completely ignores the applicable precedent relied upon by the Commission in awarding benefits and abandons our standard of review of administrative decisions. The Commission found that performing the activity on the premises while on call was the critical focus of the analysis. In reaching its decision, the Commission relied upon our opinion in Privett v. Excel Specialty Products, 76 Ark. App. 527, 69 S.W.3d 445 (2002). In Privett, we explained that the concept of employment services encompasses the performance of incidental activities that are inherently necessary for the performance of the primary activity. This court reasoned that the fact that a worker is not directly compensated for the activity engaged in when an accident occurs is not controlling as to whether the worker was performing employment services. Id. We further recognized that an employee preparing his truck for a cross-country drive by equipping it with items necessary for the efficient performance of his job was performing an incidental activity that was inherently necessary for the performance of his primary employment activity regardless of the fact that the employee was performing the tasks on his day off. Ray v. Wayne Smith Trucking, 68 Ark. App. 115, 4 S.W.3d 506 (1999) (cited in Privett, 76 Ark. App. at 532, 69 S.W.3d at 449).
In reaching its decision, the Commission relied upon our reasoning in Privett and applied its reasoning to the stipulations submitted by the parties. The entire case was submitted on stipulated facts that included the following:
3. Nimisha Jivan was employed as the assistant manager for the respondent employer on February 17, 2003 and in this capacity she and her husband, who was the hotel manager, were provided with a room in the hotel to live on the premises to carry out their responsibilities as employees of the hotel.
4. On February 17, 2003 Mrs. Jivan was off duty and was in the bathroom of the hotel room provided by the respondent changing her clothes to go to a gym to exercise when a fire occurred at the hotel and Mrs. Jivan was not able to escape the fire and died as a result of smoke inhalation.
5. Although Mrs. Jivan was off duty at the time her death occurred, theparties agreed and stipulate that she and her husband were always considered to be on-call to address any hotel related issues, which is at least one of the reasons she and her husband were provided a room in the hotel there on the premises.
From these stipulations, the ALJ and Commission distinguished Ms. Jivan’s situation from the truck driver in Cook v. ABF Freight Systems, Inc., 88 Ark. App. 86, 194 S.W.3d 794 (2004), relied upon by the majority. They reasoned:
The instant claimant, in contrast [to the claimant in Cook], was on the employer’s premises at the time of her injury and was expected to reside on the premises for the employer’s convenience. The respondent-employer clearly derived a significant benefit from the claimant’s regular and continual presence on the premises of the hotel.
The concept of employment services encompasses the performance of incidental activities that are inherently necessary for the performance of the primary activity. Privett v. Excel Specialty Prod., 76 Ark. App. 527, 69 S.W.3d 445 (2002). Given the claimant’s responsibilities to her employer, her residing on the premises and spending as much time as possible on the premises was inherently necessary for the performance of her primary activity, managing the hotel. An employee is performing employment services when her injury is sustained within the time and space boundaries of the employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly. Pifer v Single Source Transportation, 347 Ark 851, 69 S.W.3d 1 (2002). It is plain from the record that the employer’s purpose and interest was advanced by the claimant’s frequent and regular presence on the premises. She was within the space boundaries of her employment, and given that she was “on-call” 24 hours per day, she was within the time boundaries as well.”
The Commission found that “[t]he stipulations agreed to by the parties are reasonable and are hereby accepted as fact.” We cannot merely ignore the parties’ stipulations. A stipulation is “an agreement between the attorneys respecting the conduct of the legal proceedings.” Dinwiddie v. Syler, 230 Ark. 405, 323 S.W.2d 548 (1959). That agreement is the equivalent of undisputed proof and leaves nothing for the fact finder to decide as to the stipulated matter. Brown v. Keaton, 232 Ark. 12, 334 S.W.2d 676 (1960). We held in Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983), that when the parties stipulate to certain facts, neither the ALJ nor the Commission may ignore that stipulation and decide the matter on an issue that, because of the stipulation, had not been fully developed by the parties or upon that they had not introduced proof. The only exception is when the ALJ or Commission gives notice of their intent to do so and affords an opportunity to offer proof on that issue. Id. Here, the ALJ accepted these stipulations as facts, and the Commission in turn explicitly accepted and adopted the ALJ’s findings of fact in its decision.
This court, on a recent appeal based upon a stipulation, was compelled to reverse the decision of the Commission when it ignored the stipulation it had accepted. See Powers v. City of Fayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007). The case references our earlier holding that reversed the Commission’s denial of benefits. In that earlier case, the Commission rejected audiological testing to establish objectively a compensable injury when a stipulation independently established the hearing loss. We remanded for a determination of fact concerning a causal relationship between the hearing loss and the employment.
Similarly, we cannot ignore the stipulations that the parties submitted and the Commission accepted. The critical issue in this case, as in any Workers’ Compensation claim, is whether the employee was performing “employment services” at the time of her injury. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002); Collins v. Excel Specialty Prods., 347 Ark. 811, 816, 69 S.W.3d 14, 18 (2002); White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). We use the same test to determine whether an employee was performing “employment services” as we do when determining whether an employee was acting within “the course of employment.” Pifer, supra; White, supra; Olsten Kimberly, supra. The test is whether the injury occurred “within the time and space boundaries of the employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly.” White v. Georgia-Pacific Corp., 339 Ark. at 478, 6 S.W.3d at 100. See also Wal-Mart Stores, Inc. v. King, 93 Ark. App. 101, 216 S.W.3d 648 (2005); Ark. Meth. Hosp. v. Hampton, 90 Ark. App. 288, 205 S.W.3d 848 (2005). The critical issue is whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury. Collins, supra; see also Matlock v. Ark. Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001).
The Commission appropriately directed its analysis to this critical issue of whether the employer’s interests were being directly or indirectly advanced at the time Ms. Jivan sustained the injury that caused her death. The Commission found that Ms. Jivan was on the employer’s premises at the time of her injury and was expected to reside on the premises for the employer’s convenience. It further found that the employer’s purpose and interest were advanced by Ms. Jivan’s frequent and regular presence on the premises. The Commission therefore concluded that Ms. Jivan was within the space boundaries of her employment. Given that Ms. Jivan was on call twenty-four hours a day, it also found that she was within the time boundaries of her employment as well. In reaching its decision, the Commission properly distinguished the facts of this case from that of Cook, supra, in which the employee was injured in a private motel neither owned nor affiliated with the employer, there was no indication that the employee was required to stay at this hotel, or that his staying in that hotel advanced his employer’s interest, but rather, the room was provided solely for the employee’s convenience.
Despite the Commission’s reliance on our precedent in Privett, the majority makes no mention of the case to explain why the Commission’s reliance upon it was in error. The closest the majority comes to addressing the basis upon which the Commission rendered its decision is in the statement: “The fact that she was on call in her living quarters does not necessitate a finding that every activity in which she engaged was inherently necessary to her job.” Nothing in our review procedures permits this court to reverse the Commission’s decision because the established fact “does not necessitate a finding.” We are to examine the facts and determine whether fair-minded persons with the same facts before them could not have reached the conclusion. Furthermore, the Commission’s finding was not so broad as to find that every activity Ms. Jivan may have engaged in upon the premises was inherently necessary to her job. The Commission’s decision was properly iimited to the facts before it.
The majority’s reversal of the Commission’s decision ignores the fact that the parties stipulated that Ms. Jivan’s primary employment activity was the management of the hotel and that despite the fact that she was off duty at the time of her death, she was nevertheless on call and on the premises in the space provided to her to perform her primary employment activity. The majority improperly invalidates the Commission’s finding that given Ms. Jivan’s responsibilities to her employer, her residing on the premises and spending as much time as possible on the premises was inherently necessary for the performance of her primary activity, managing the hotel. An employee is performing employment services when her injury is sustained within the time and space boundaries of the employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly. Pifer, supra. The Commission’s analysis is well-reasoned and supports its decision.
In this case, the majority’s inability to see how the employee’s changing clothes advances her employer’s interest completely ignores the focus of the Commission’s finding. The Commission focused on the fact that Ms. Jivan was engaged in a personal activity on the employer’s premises because the employer derived a benefit from her continued presence on the premises. The majority fixates on the details of the activity engaged in by Ms. Jivan while on the employer’s premises, rather than on the fact that she was on the premises, on call, and that her presence and on-call status advanced the employer’s interest. This misplaced focus negates the parties’ stipulations. It ignores the stipulation that Ms. Jivan and her husband were provided with a room in the hotel to live on the premises to carry out their responsibilities as employees of the hotel. It renders void the parties’ express stipulation that although she was off duty at the time her death occurred, she and her husband were always considered to be on-call to address any hotel related issues. It obliterates the stipulation that at least one of the reasons she and her husband were provided a room in the hotel on the premises was for her to be available to provide management services. The Commission found that the employer derived a significant benefit from Ms. Jivan’s regular and continual presence on the premises of the hotel. Given the parties’ stipulations, the Commission’s conclusion is well taken.1
Accordingly, I dissent.
Glover and Vaught, JJ., join.
The majority opines that “[u]nder the dissent’s reasoning, employers would be required to extend workers’ compensation coverage to every personal activity in which an employee such as [Ms. Jivan] might have engaged.” The Commission merely rendered its decision based on the parties’ stipulations and applicable law. The review of this court must always be whether the evidence supports the Commission’s decision, not whether we agree with the disposition of the case. The majority impermissibly imposes a different result because it disagrees with the Commission. It then justifies its disagreement by listing isolated activities and suggesting that affirmance of the Commission’s decision would require as a matter of law that every personal activity engaged in by an employee on the premises would be deemed as advancing an employer’s interest. Affirming the Commission’s decision would not overrule our extensive case law demanding a fact intensive analysis of the statutory criteria.