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Harding v. City of Texarkana

Court of Appeals of Arkansas Division III
May 27, 1998
62 Ark. App. 137 (Ark. Ct. App. 1998)

Summary

affirming the Commission's decision that appellant was not performing employment services when she tripped on a rolled-up carpet as she exited an elevator on her way to the smoking area and argued that her break advanced her employer's interest by allowing her to relax and helped her work more efficiently the rest of her shift

Summary of this case from Univ. of Ark. for Med. Scis. v. Hines

Opinion

CA 97-1511

Opinion delivered May 27, 1998

1. WORKERS' COMPENSATION — COMPENSABLE INJURY — EMPLOYMENT SERVICES DEFINED. — Act 796 of 1993, which applies to all injuries occurring after July 1, 1993, requires the courts to construe its provisions strictly; Arkansas Code Annotated § 11-9-102(5)(b)(iii) (Supp. 1997), which is part of Act 796 of 1993, excludes from the definition of compensable injury any injury which was inflicted upon the employee at a time when employment services were not being performed; an employee is performing employment services when he is engaged in the primary activity that he was hired to perform or in incidental activities that are inherently necessary for the performance of the primary activity. 2. STATUTES — LEGISLATURE DECLARES PUBLIC POLICY. — The legislature, rather than the courts, is empowered to declare public policy, and whether a law is good or bad, wise or unwise, is a question for the legislature rather than for the courts. 3. WORKERS' COMPENSATION — ACT APPLICABLE — COMMISSION DID NOT ERR IN FINDING APPELLANT WAS NOT PERFORMING EMPLOYMENT SERVICES WHEN SHE WAS INJURED. — Act 796 of 1993 was applicable here, and, although appellant's break may have indirectly advanced her employer's interests, it was not inherently necessary for the performance of the job she was hired to do; consequently, the Workers' Compensation Commission did not err in finding that appellant was not performing employment services when she was injured. 4. WORKERS' COMPENSATION — APPELLANT'S CONTENTION WITHOUT MERIT — ISSUES NOT ADDRESSED FOR FIRST TIME ON APPEAL. — Appellant's contention that the employer, by initially accepting the claim as compensable, waived the issue of whether appellant was performing employment services was without merit; waiver is in most cases a question of fact, and neither the administrative law judge nor the Workers' Compensation Commission made any finding regarding waiver in the case at bar; the appellate court does not address issues raised for the first time on appeal.

Appeal from the Arkansas Workers' Compensation Commission; affirmed.

Patton, Tidwell, Sandefur Paddock, by: Kelly Tidwell and William R. Patterson, for appellants.

J. Chris Bradley, for appellee.


The appellant in this workers' compensation case was employed by the appellee answering 911 emergency calls on the third floor of the Bi-State Justice Building in Texarkana. She was not allowed to smoke on the third floor, but there was a designated smoking area on the first floor. On March 11, 1997, she exited the elevator on the first floor on her way to the smoking area, tripped over a rolled-up carpet, and was injured. Appellee initially accepted the claim as compensable but later controverted the claim in its entirety. After a hearing, the Commission found that the claim was not compensable because appellant was not performing employment services when she was injured. From that decision, comes this appeal.

For reversal, appellant contends that the Commission erred in finding that she was not performing employment services when she was injured. We find no error, and we affirm.

[1] Act 796 of 1993, which applies to all injuries occurring after July 1, 1993, requires the courts to construe its provisions strictly. Arkansas Code Annotated § 11-9-102(5)(b)(iii) (Supp. 1997), which is part of Act 796 of 1993, excludes from the definition of "compensable injury" any injury "which was inflicted upon the employee at a time when employment services were not being performed." An employee is performing "employment services" when he is engaged in the primary activity that he was hired to perform or in incidental activities that are inherently necessary for the performance of the primary activity. See Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).

[2, 3] Appellant argues, on public policy grounds, that her break advanced her employer's interest by allowing her to relax, which in turn helped her to work more efficiently throughout the rest of her work shift. We are not unsympathetic to this argument. Under former law, the definition of compensable injury did not include a strict requirement that the injury occur while the worker was performing employment services, and a claimant's activities at the moment of injury were relevant only to the separate and broader question of whether the injury arose out of and in the course of the employment. See id. It is clear that, under former law, appellant's injury while en route to the break area would have been in the course of her employment pursuant to the personal-comfort doctrine. See Lytle v. Arkansas Trucking Services, 54 Ark. App. 73, 923 S.W.2d 292 (1996). It may be true that the interests of both workers and employers would be better served by a more uniform application of an administrative remedy than they would be by the uncertainty inherent in a tort claim based on premises liability. Nevertheless, the legislature, rather than the courts, is empowered to declare public policy, Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997), and whether a law is good or bad, wise or unwise, is a question for the legislature, rather than the courts. Longstreth v. Cook, 215 Ark. 72, 220 S.W.2d 433 (1949). In the present case, Act 796 of 1993 applies and, although appellant's break may have indirectly advanced her employer's interests, it was not inherently necessary for the performance of the job she was hired to do. Consequently, we hold that the Commission did not err in finding that appellant was not performing employment services when she was injured.

[4] Nor do we find merit in appellant's contention that the employer, by initially accepting the claim as compensable, waived the issue of whether appellant was performing employment services. Waiver is in most cases a question of fact, see Bright v. Gass, 38 Ark. App. 71, 831 S.W.2d 149 (1992), and neither the administrative law judge nor the Commission made any finding regarding waiver in the case at bar. We do not address issues raised for the first time on appeal. Teague v. C J Chemical Company, 55 Ark. App. 335, 935 S.W.2d 605 (1996).

Affirmed.

ROBBINS, C.J. and JENNINGS, J., agree.


Summaries of

Harding v. City of Texarkana

Court of Appeals of Arkansas Division III
May 27, 1998
62 Ark. App. 137 (Ark. Ct. App. 1998)

affirming the Commission's decision that appellant was not performing employment services when she tripped on a rolled-up carpet as she exited an elevator on her way to the smoking area and argued that her break advanced her employer's interest by allowing her to relax and helped her work more efficiently the rest of her shift

Summary of this case from Univ. of Ark. for Med. Scis. v. Hines

In Harding v. City Of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), we held that a claim was not compensable because employment services were not being performed when Harding tripped over a rolled-up carpet on her way to a designated smoking area in the work place.

Summary of this case from Robinson v. St. Vincent Infirmary

In Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), we held that the claim was not compensable because employment services were not being performed when Harding tripped over a rolled-up carpet on her way to a designated smoking area in the workplace.

Summary of this case from McKinney v. Trane Co.

In Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), we affirmed the Commission's decision denying benefits for injuries sustained to a worker who tripped over a rolled-up carpet while walking to a designated smoking area. Our opinion cited the supreme court's decision in Olsten Kimberly Quality Care v. Pettey, supra, which affirmed our position that an employee performs "employment services" when the employee engages in the primary activity that he or she was hired to perform or in incidental activities that are inherently necessary for the performance of the primary activity.

Summary of this case from Matlock v. Blue Cross Blue Shield

In Harding, an employee was injured when she tripped over rolled-up carpet as she exited an elevator on her way to a smoking area. Harding argued that her employer gained the benefit of her being more relaxed, which in turn helped her to work more efficiently throughout the rest of her work shift.

Summary of this case from Ray v. University of Arkansas

In Harding, the Court of Appeals affirmed the Commission's denial of compensability where the claimant tripped and fell while on her way to a smoking area.

Summary of this case from Bryant v. Staffmark, Inc.

In Harding, the claimant was employed by the city answering 911 emergency calls on the third floor of the Bi-State Justice Building in Texarkana.

Summary of this case from Pattillo v. Darling Store Fixtures
Case details for

Harding v. City of Texarkana

Case Details

Full title:Tina HARDING v . CITY of TEXARKANA

Court:Court of Appeals of Arkansas Division III

Date published: May 27, 1998

Citations

62 Ark. App. 137 (Ark. Ct. App. 1998)
970 S.W.2d 303

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