BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G509057 LISA WEBSTER, EMPLOYEE ARKANSAS DEPARTMENT OF CORRECTION, EMPLOYER PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER CLAIMANT RESPONDENT RESPONDENT OPINION FILED APRIL 26, 2016 Hearing before Administrative Law Judge Elizabeth W. Hogan on April 15, 2016, in Pine Bluff, Jefferson County, Arkansas. Claimant represented by Mr. Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas. Respondents represented by Mr. Charles H. McLemore, Attorney at Law, Little Rock, Arkansas. ISSUES A hearing was conducted to determine the claimant s entitlement to payment of medical expenses. At issue is the compensability (employment services) of this claim pursuant to Ark. Code Ann. 11-9-102. After reviewing the evidence impartially, without giving benefit of the doubt to either party, Ark. Code Ann. 11-9-704, I find the evidence does not preponderate in favor of the claimant. STATEMENT OF THE CASE The parties stipulated to an employee-employer-carrier relationship on February 23, 2015, at which time the claimant was earning sufficient wages to be entitled to a compensation rate of $542.00/$407.00 in the event this claim is found to be compensable. Some expenses have been paid by the group carrier, Health Advantage. The claimant drew unemployment benefits ($387.00 weekly) from October 2015, to January 2016, and received benefits from AFLAC.
-2- The claimant contends she slipped on ice and fell in the parking lot, injuring her left knee. She seeks payment of medical expenses. The respondents contend that no employment services were being performed at the time of the injury. The following were submitted without objection and comprise the evidence of record: the parties prehearing questionnaires and the respondent s exhibit packet contained in the transcript. The claimant, who seemed sincere in her testimony, was the only witness to testify at the hearing. She was using a cane. The claimant, age 52 (D.O.B. January 1, 1964), has had training at the Academy before becoming a correctional officer at the Varner unit of the prison system. She began work for the respondent employer four (4) years ago on the 6:00 p.m. to 6:00 a.m. shift. Her health history includes a knee sprain in 2012, and left foot injury in 2014. The claimant commuted to work from the state of Mississippi with a coworker. On February 23, 2015, the inclement weather policy was in effect, meaning employees would receive their full salary even though they were given extra time to report to work. She arrived to work wearing her uniform as no changing room or lockers were provided in the prison. She stepped out of the car, slipped on black ice, and injured her left knee. The claimant explained that they were parked in the employee parking lot which did have lighting but the lot had not been cleared of ice. The area in front of the door had been salted but not the parking lot. From the parking lot she proceeded to the checkpoint, through the gate, clocked-in, met for a shift briefing and was assigned to her post. The prison was short-staffed that day due to the weather so there was no one to help her with
-3- workers compensation forms. She worked a full shift that day and continued to work until March 14, 2015. She was then hospitalized and has not returned to work. She lost her insurance when her employment was terminated. From her Academy training, it was the claimant s understanding that she was held responsible for her actions while wearing her uniform even if she was not working at the time. MEDICAL EVIDENCE The claimant has been treated conservatively with medication, physical therapy and injections. Based on diagnostic testing, she has been diagnosed with a popliteal cyst and osteoarthritis. Her symptoms include pain, swelling, and aching after a twisting injury on ice. She did not feel she could continue working since it involves extensive walking on concrete. She would also be unable to respond to an emergency with the inmates. She was advised to change jobs and lose weight. DOCUMENTARY EVIDENCE The claimant completed an FMLA form on March 15, 2015. A form AR-C was filed on December 4, 2015. FINDINGS OF FACT AND CONCLUSIONS OF LAW The respondents have denied this claim based on the employment services doctrine. A compensable injury is defined as an accidental injury... arising out of and in the course of employment... Ark. Code Ann. 11-9-102. A compensable injury does not include an injury which was inflicted upon the employee at a time when employment services were not being performed... Ark. Code Ann. 11-9- 102(4)(B)(iii). An employee is performing employment services when he or she is doing something that is generally required by his or her employer. White v. Georgia-Pacific Corp., 339 Ark. 474, 478, 6 S.W.3d 98, 100 (1999). The test for
-4- determining whether the employee was performing employment services at the time of the injury 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. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). Injuries sustained by employees going to and coming from work are not considered to arise out of and in the course of employment. The going-andcoming rule ordinarily precludes recovery for an injury sustained while an employee is not within the course of his employment and all persons, including employees, are subject to the recognized hazards of travel. Swearingen v. Evergreen Lawns, 85 Ark. App. 61, 145 S.W.3d 830 (2004). Prior to Act 796 of 1993, injuries on the employer s premises were covered by workers compensation. But after the legislative changes were made, the premises exception was eliminated, Hightower v. Newark Public School System, 57 Ark. App. 3, 943 S.W.2d 608 (1997). At the time of the injury, the claimant was coming to work and injured herself in the parking lot. She was not performing any work-related duties. 1. The Workers Compensation Commission has jurisdiction of this claim in which the employee-employer-carrier relationship existed on February 23, 2015, at which time the claimant was earning sufficient wages to be entitled to a compensation rate of $542.00/$407.00 in the event this claim is found to be compensable. Some expenses have been paid by the group carrier, Health Advantage. The claimant drew unemployment benefits ($387.00 weekly) from October 2015, to January 2016, and received benefits from AFLAC. 2. The claimant has failed to prove she was performing employment services at the time of her injury. 3. If they have not already done so, the respondents are directed to pay the court reporter, Celia Jamison s, fees and expenses within thirty (30) days of receipt of the bill.
-5- This claim is respectfully denied and dismissed. IT IS SO ORDERED. ELIZABETH W. HOGAN Administrative Law Judge