Jack Nelson Jones Professional Association

November 5-11, 2018

Ark. Sec’y of State v. Young, 2018 Ark. App. 508 (Oct. 24, 2018)


This case arose from an appeal from the Arkansas Workers’ Compensation Commission (Commission) in which the employer, the Arkansas Secretary of State (SOS), challenged the decision to award benefits to the employee, Ruby Young, on the basis that Young was not providing employment services at the time of her alleged injury. The Court of Appeals rejected the SOS position and affirmed.


Young was an administrative assistant in the Capitol Facilities Office for SOS. Her office was located in the basement of the Arkansas State Capitol building, and her work hours were from 8:00 a.m. to 5:00 p.m. Her job required that she prepare maintenance and repair work orders for the Capitol building, its associated grounds, and the Capitol Hill Apartments. Her primary tasks at work were to answer telephone calls, check emails for work requests, and assign the appropriate person to the task.


One rainy morning at approximately 7:45 a.m., Young arrived for work and parked in her assigned parking spot. Using her key card, she entered the Capitol basement through an outside door. Upon entering, she wiped her feet on a rug and then slipped and fell as she stepped off the rug and onto the marble floor. She hit the floor with her lower back but got up and went to her office where she began to experience low-back and hip pain five or six hours later. She reported this injury to her employer. She sought treatment at UAMS the following Monday (five days after the fall) and x-rays taken at UAMS revealed that she had "significant soft tissue swelling" in her lumbar spine. A hip injury was ruled out, but Young was diagnosed with a lumbar sprain and sciatica and underwent conservative treatment for ongoing back problems.


Young filed a claim for workers'-compensation benefits which SOS controverted. The primary issue was whether Young was performing employment services at the time she fell. A hearing was conducted on this claim.


Young's supervisor, Keith Diemer, testified that their office is responsible for the day-to-day operations of maintenance, including electrical, plumbing, heat and air conditioning, custodial care, lawn care, and all the exterior and interior upkeep for the Capitol building, its grounds, and the apartments where legislators live. He testified that Young had a state-issued cell phone so that she can be reached if she is away from her desk and immediate assistance was needed. Also, her desk phone could be transferred to her cell phone for that purpose. Diemer further stated that Young had no work duties outside her regular office hours but that he would nonetheless expect Young to do something immediately if someone advised her at 7:50 a.m. that there was a problem such as flooding in a bathroom. Diemer had experienced people approaching him as soon as he exited his vehicle, so he understood that this might happen to Young. Diemer was "pretty sure" that Young had received maintenance requests before 8:00 a.m. when she was in her office.


Young testified that she was often approached by someone requesting maintenance as she walks from her car to her office. She did not recall anyone talking to her about work-related issues on the day she was injured, before she reached her office, but she remembered that other state employees saw her fall. She explained that she fell onto her backside, she reported this injury to her employer that day, and her low back did not begin to hurt a lot until a few hours after the fall. Young testified about the course of her medical care and submitted emails and medical records to substantiate her claim.


The administrative law judge (ALJ) found that Young had presented objective medical findings "at least including, but not necessarily limited to, 'significant soft tissue swelling' noted in the report of an x-ray of Ms. Young's back performed at." The ALJ found Young's testimony persuasive that she had no back pain before the injury; that her back began hurting later that day; that she emailed a coworker that afternoon to report having hip pain in the same area; and that she reported to the UAMS emergency room that she had experienced increasing back pain since she slipped and fell on a marble floor five days earlier. The ALJ also found that Young had been performing employment services when she was injured because she was directly or indirectly advancing SOS's interests at the time she fell. The ALJ found that Diemer's testimony corroborated Young's assertion that she was subject to receiving work requests before 8:00 a.m. and before she reached her desk.


The ALJ noted court decisions which held than an employee may be compensated for an injury that occurs even before reaching her work station or before she is "on the clock" if she is performing a service that is required by her employer and is directly or indirectly advancing her employer's interests. One case involved a temporary clerical worker who was injured in the service-bay area of a call dealership ten minutes before her official work day began. It was noted that she would have been required to perform her specific job duties while en route to her designated job site and was expected to advance her employer's interests away from her desk, even if she had not actually been engaged in work duties when she was injured. In that case, the court rejected any application of the going and coming rule because, like Young, the employee was already at the workplace and not still in transit.


The SOS appealed the ALJ's decision to the Commission, which affirmed and adopted the ALJ's decision as its own, which under Arkansas law, the Commission is permitted to do. SOS then appealed to the Court of Appeals.


SOS's first point on appeal was that there was no substantial evidence to support a finding that Young was performing employment services at the time she fell, and, therefore, any injury she sustained was not compensable. The Court disagreed.


Under Arkansas workers'-compensation law, for an accidental injury to be compensable, it must arise out of and in the course of employment. An employee is performing employment services when he she is doing something that is generally required by his or her employer. The courts use the same test to determine whether an employee is performing employment services as is used when determining if an employee was acting within the course and scope of employment, i.e., 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, either directly or indirectly.


The Court noted that SOS correctly asserted that, as a general rule, a claimant who has fixed hours and places of employment is not performing employment services when the claimant is traveling between home and the job because this falls within the "going and coming rule." SOS also correctly stated that, generally speaking, an employee who is injured while walking to or from his or her vehicle in the parking lot before or after work is not performing employment services. However, whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. In this instance, the "going and coming rule" had no application to Young because she had already arrived at work, parked her car, and had entered the building where she worked.


Under the facts of this case, the Court held that reasonable minds could conclude, as the Commission did, that Young was acting within the scope and course of her employment and directly or indirectly advancing her employer's interests when she slipped and fell. The Court found that whether the claimant was technically "on" or "off" the clock is not dispositive. Young was expected to respond to work queries if she was approached away from her desk or before 8:00 a.m.; she was inside the Capitol building, having entered through a door that required a key card to enter; and was on her way to her office. The Court found this was sufficient substantial evidence to support the Commission's conclusion that Young was performing employment services at the time of her fall. Accordingly, it affirmed the Commission’s decision to award benefits.