Opinion
CLAIM NO. F111498
OPINION FILED JANUARY 14, 2003
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by HONORABLE CAROL LOCKARD WORLEY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed
OPINION AND ORDER
The claimant appeals to the Full Commission an Administrative Law Judge's opinion filed March 8, 2002. The Administrative Law Judge found that:
1. The stipulations agreed to by the parties at the pre-hearing conference conducted on December 19, 2001, and contained in a pre-hearing order field that same date, are hereby accepted as fact.
2. Claimant has failed to prove by a preponderance of the evidence that he suffered a compensable injury while employed by the respondent. Specifically, claimant was not within the course and scope of his employment at the time of his motor vehicle accident because he was traveling home from his job.
After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
On July 20, 2001, the claimant was a supervisor on a landscaping job at a restaurant in Springdale. While driving a truck belonging to the respondent employer, the claimant left the restaurant, took a laborer to the respondent's shop to clock out, took that man home, drove to Fayetteville to purchase materials for the next day, drove to the home of the Bob Bowen (the owner of the respondent employer), picked up a second laborer at Bowen's house, dropped the purchased materials off at the restaurant back in Springdale, took the second laborer to the shop to clock out, took that man home, and then on the way to his own house was struck from behind at an intersection.
The claimant agreed that when the accident occurred he was "finished for the day" and "done with all [his] work." He testified that he drove the two laborers to their homes as favors, because he was a nice guy, and not because it was part of his job. Bob Bowen testified that he regularly allowed the claimant to drive the company vehicle home at night "to allow him ease to get back and forth to work" because the claimant and his wife had only one vehicle.
Citing Lepard v. West Memphis Machine Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995), the Administrative Law Judge found that the claimant was not acting within the course and scope of his employment under the "going and coming" rule, and that the claimant's circumstances were not covered by the "furnishing of transportation" exception to that rule. Lepard states:
For an employee's [injury] to be compensable under the Arkansas Workers' Compensation Law, it must result from an injury `arising out of and in the course of employment.' Ark. Code Ann. § 11-9-401 (1987). The phrase `[a]rising out of the employment' refers to the origin or cause of the accident, so it must be shown that a causal connection exists between the injury and his employment. Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). An injury occurs `in the course of employment' when it occurs `within the time and space boundaries of the employment, while the employee is carrying out the employer's purpose, or advancing the employer's interests directly or indirectly.' City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987). As a general rule, injuries sustained while an employee is going or coming from work are not compensable. Fisher v. Proksch, 20 Ark. App. 80, 723 S.W.2d 852 (1987); City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 852 (1982). Such injuries are not deemed to arise out of and in the course of employment. Mason v. Lauck, 232 Ark. App. 891 [ 232 Ark. 891], 340 S.W.2d 575 (1960); American Red Cross v. Hogan, 13 Ark. App. 194, 681 S.W.2d 417 (1985). The rationale for the going and coming rule is based on the fact that all persons, including employees, are subject to the recognized hazards of travel to and from work. City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982). When traveling to and from the regular place of employment, the employee is not exposed to risks attributable to the employment. Instead, the employee is only exposed to risks which are common to all members of the general public.
However, there are a number of exceptions to the going and coming rule, and one of these exceptions permits a finding of compensability where the employer furnishes transportation to and from work as an incident of the employment. See, e.g., Arkansas Power Light Co. v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958); Chicot Memorial Hospital v. Veazey, 9 Ark. App. 18, 652 S.W.2d 631 (1983). The rationale for this exception is that the journey itself becomes an inherent part of the service because the employer's interests are somehow furthered by the travel, making the travel a substantial part of the services rendered. Cox, supra; Veazey, supra. Consequently, the exception is only applicable where there is a connection, or nexus, between the travel and the employment. Rankin v. Rankin Construction Co., 12 Ark. App. 1, 669 S.W.2d 911 (1984); Veazey, supra. In determining whether there is such a nexus, the existence of a benefit to the employer is an important element. City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987). Consequently, even when the accident occurs in a vehicle furnished by the employer, the injury is not compensable unless the travel somehow carries out the employer's purpose, or advances the employer's interests, either directly or indirectly, and the injury is not compensable if the vehicle is being used at the time of the injury for purposes purely personal to the employee. Howard v. Arkansas Power Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987).
As in Lepard, the evidence in the present claim fails to show a nexus between the claimant's travel home for the night and his employment. Rather, it demonstrates that at the time of his injury the claimant was using the vehicle for a purpose purely personal to himself, and the respondent employer's interests were not being furthered. The preponderance of the evidence indicates that the respondent employer gratuitously allowed the claimant to use the truck solely to accommodate and benefit the claimant. Because the Administrative Law Judge correctly found that Bowen only provided transportation as a convenience to the claimant, we find that his decision to deny and dismiss the claimant's claim should be affirmed.
Based on our de novo review of the entire record, the Full Commission affirms the Administrative Law Judge's finding that the claimant failed to prove by a preponderance of the evidence that he suffered a compensable injury while employed by the respondent.
IT IS SO ORDERED.
_______________________________ JOE E. YATES, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
I concur in the principal opinion's findings. I write separately only to address the dissenting Commissioner's assertion that the preponderance of the evidence in this case clearly indicates that the respondent employer was not merely acting gratuitously when providing the claimant with a company vehicle. The Administrative Law Judge directly addressed the point. The Administrative Law Judge noted that Mr. Bowen testified that, because the claimant and his wife had only one vehicle, Mr. Bowen allowed the claimant to drive the company truck home as a convenience to the claimant. The Administrative Law Judge found this evidence credible. Based on this essentially undisputed testimony, the Administrative Law Judge essentially found Mr. Bowen provided the company vehicle at issue to the claimant as a gratuity to the claimant. I accord great weight to the Administrative Law Judge's credibility determination on this point. I therefore find that a preponderance of the evidence indicates that the respondents provided the company vehicle to the claimant as a gratuity.
In support of his argument to the contrary, the dissenting Commissioner suggests that Mr. Bowen instead provided the vehicle to the claimant because "if respondent employer required the claimant to park the company vehicle that he was using during the day at a central location instead of allowing him to take it home, it could cause lost time to respondent employer when the claimant would have to return to the central location to pick up the truck the next day." [Emphasis mine.] The dissenting Commissioner goes on to state that the fact that Mr. Bowen paid the maintenance expenses of the company vehicle "militates strongly against a determination that the furnishing of the vehicle was a mere gratuity." The dissenting Commissioner states, "It would be the generous employer indeed who would agree to allow an employee to have a company vehicle merely for his own convenience, and to also agree to pay for fuel burned by the employee for his own convenience." [Original emphasis.]
I respectfully point out the dissenting Commissioner's conclusory statements are not supported by the record. The credible evidence does not establish that, in fact, the claimant's driving a company vehicle home saved the respondent employer lost time in reaching his first work location each day, and the record before us certainly does not establish that Mr. Bowen provided the vehicle to the claimant for that reason. Instead, the preponderance of the evidence of the evidence establishes that Mr. Bowen provided the vehicle to the claimant to drive to and from work simply because the claimant and his wife only had one family vehicle to drive between them.
In reaching this conclusion, I point out that the claimant's job duties included supervising two laborers. There appears to be no dispute that (1) these laborers were required to clock in at the company shop at the start of each day, (2) these laborers were required to clock out at the company shop at the end of each day, (3) these laborers did not have driver's licenses and were not permitted to drive company trucks, and (4) the claimant-supervisor, as part of his job duties described in his testimony, by necessity had to drive the laborers to and from their various work sites. Consequently, the dissent is mistaken in suggesting that the first work site where the claimant reported to begin work each day varied greatly. Instead, the preponderance of the evidence in the record indicates that the claimant's first work site and his last work site each day would by necessity normally be the company shop, the location where the laborers that he transported were required to check in and check out. Under these circumstances, the available evidence does not support the dissent's suggestion that sending the claimant home in a company truck each night was a prudent business decision calculated to increase business efficiency.
Furthermore, if, as Mr. Bowen explained, he permitted the claimant to drive a company vehicle to and from work as a convenience to the claimant and his wife, who had only one vehicle between them, I do not agree with the dissent's implied inference that the employer would necessarily have required the claimant to share in the cost of fuel and truck maintenance. In reaching this conclusion, I note the evidence that the company had multiple vehicles, the evidence that the claimant did not necessarily take home the same vehicle each night, and the evidence that the vehicles that he would take home as a means of transportation to and from work were also the same vehicles that he put to company use during his work day. Under these circumstances, I do not see how the dissent would expect Mr. Bowen to fairly apportion some degree of his vehicle fleet maintenance to the claimant to pay, and if as the evidence suggests, the claimant's personal use of company vehicles was very minor and essentially limited to driving to and from the company office from his house, I cannot agree with the dissent's presumption that no prudent business owner would permit that degree of personal use without also being reimbursed for the amount of fuel used driving to and from work.
In summary, in my opinion, none of the evidence in the record cited by the dissent is necessarily in any way inconsistent with Mr. Bowen's credible explanation that he permitted the claimant to drive company vehicles home at night as a convenience to the claimant and his wife who had only one vehicle. Because Evergreen Lawns was not receiving a benefit, either directly or indirectly, from Mr. Bowen's generosity in letting the claimant drive a company vehicle home, and since the record also indicates that the claimant's employment duties ended when he took Mr. Mario to the office to clock out, I concur that the claimant's injury did not occur during the course and scope of his employment, and I concur that the claimant was not performing employment services at the time the injury occurred.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Turner dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion affirming the decision of the Administrative Law Judge.
Facts
Claimant testified that he and other individuals were working on a landscaping job at McDonald's on Thompson Street in Springdale. S ee Hearing Transcript, page 15. Claimant testified that he left McDonald's and took Santos, a laborer, to the respondent's shop in north Springdale to clock out and then took him home. After taking Santos home, claimant then drove to Fayetteville to purchase some blocks for use the next day. Then, after purchasing the blocks, claimant drove to the home of Bob Bowen, the owner of respondent employer. Claimant testified that Mario, another laborer, was mowing at Bowen's home on 48th Street. After dropping the blocks at the McDonald's work site, the claimant took Mario to the respondent's shop to clock out and then took him home. After taking Mario home and while in the process of driving home, the claimant was involved in a motor vehicle accident when he was struck from behind at a traffic signal.
Bob Bowen also testified. His testimony conflicted with claimant's testimony on some of the details of claimant's activities on the day in question. He testified that he thought that on the day in question, claimant took Santos to the shop to take care of "some personal problem," then returned to the McDonald's job site. He testified that claimant did go to Fayetteville to look at a landscape job they were working on there. He testified that Mario and the claimant met him at that site. He testified that to his knowledge, the claimant took Mario to the shop to clock out and then took Mario home.
There was also extensive testimony as to why the claimant was provided a company vehicle and who paid the expenses related to the vehicle. Claimant testified on this point as follows:
Q: Okay. Now, were you furnished a vehicle?
A: Yes.
Q: Was that vehicle in your possession?
A: Yes.
Q: Did you keep the vehicle at your premises?
A: Yes.
See Hearing Transcript, page 7.
Q: And did you also use that vehicle in the performance of your job duties?
A: Yes.
Q: Now, were you authorized to drive other vehicles, as well?
A: Yes.
Q: Did you ever have any other vehicle that you kept at your house, at least between April of `01 and July of `01, other than the vehicle that you were involved in the accident in?
A: Yes, if I was close to the house, I usually took ever what I had — was driving home.
Q: Okay. Did you take a vehicle home depending upon what it was you had done or were going to do the next day —
A: Yes.
Q: — or you just had one vehicle that you were assigned?
A: No, I didn't have one vehicle I was assigned.
Q: Okay. So if you had a vehicle that had a hitch on it and you needed it for work the next day, would you take that vehicle as compared with one that might not have a hitch?
A: Yes.
See Hearing Transcript, pages 9-10.
Q: All right. During any of the tenure of time whenever you elevated yourself away from what we have Mexicans do, the grunt work, and when you did the supervisory stuff, did you ever have a truck during that period of time?
A: Yeah, I pretty well had one most of the time, after about the second year I worked for him, I guess.
Q: So about the second year on, you had a truck.
A: I usually had a vehicle to drive.
Q: Now, did you ever use that truck for your own personal matter, defined as being something to where, you know, you weren't — where clearly it was at a time on — going to church or taking your kids to soccer and such?
A: No, I didn't use it as recreational, no.
Q: Okay. Did you ever call and talk to Bob about using it for something to where you believe that you would have wanted or needed him to say yes or no?
A: Yes.
Q: Okay. On how many occasions?
A: I couldn't recall. Probably 20.
Q: Did you ever have occasion to service the truck?
A: Yeah, if it needed —
Q: Tell me what servicing is. . . . What did you do to the truck to maintain it?
A: Oh, I made sure that he trucks — the vehicles had tires and, you know, if they didn't have tires, you know, I would get with Mr. Bowen and we would — Bob, we would get — you know, get a set of tires on a vehicle or otherwise.
Q: Other than something like tires, if the thing were sounding bad and you had to take it in, did you ever do that, to take it in to the shop?
A: Yeah, if it needed to see a mechanic, I'd make sure that it got there.
Q: Did you ever perform any maintenance on it?
A: Yes.
Q: What?
A: This truck here, I changed the thermostat once on it, and stop and get fuel.
Q: All right. When you would get fuel, when would you get fuel?
A: If I needed it before work, I'd get it before work. If I needed it during work, I got it at work. Ever when it needed it, I got it.
Q: Did you have a credit card?
A: Yes, I did.
Q: Did you ever use the credit card for things other than fuel that were related to the company, like hoses or —
A: Oh, yes.
Q: — Anything of that nature?
A: Yes.
Q: So you had a Discover card that you could use at various places
A: Yes.
Q: — in case you needed to maintain the truck.
A: Yes.
Q: Did you ever personally maintain the truck when it was on your premises at a time when it was necessary to see that the truck was well cared for or taken care of? Did you ever have to look out after the truck?
A: Well, yeah, I kept an eye on it because it was my own.
Q: Where was the truck garaged? Was it in a garage? I mean the term "garage," where was the truck kept overnight?
A: Oh, usually at my house.
See Hearing Transcript, pages 27-30.
Mr. Bowen testified as follows on this point:
Q: Okay. Why did he have a company truck?
A: To allow him ease to get back and forth to work.
Q: Did he have a means to get back and forth to work if you didn't give him a company truck?
A: I'm sure his wife could have brought him or else he could have brought — you know, they only had one vehicle.
Q: And was this a convenience for him?
A: Yes, ma'am.
Q: The company truck he used or had, was he allowed to use that for personal stuff, go to Wal-Mart, run down to the store and get milk?
A: I'm sure he was, yes, ma'am.
Q: You didn't have any problem with him doing that at all?
A: I never did, no.
See Hearing Transcript, page 49.
Q: Okay. The testimony concerning the use of the vehicle and such, was that basically correct as far as whether the vehicle was in his possession overnight, that he used the vehicle, garaged it, parked it at his residence?
A: Yes, sir.
Q: Okay. And if, in fact, it needed serviced, would it ever be serviced before he actually came into the shop, or would he be expected to come into the shop and then go back and have it serviced?
A: As I understood the question, I don't know the answer to. Usually if he come in to work — he would come in to work, and if it needed to be serviced, he might do it there at the shop or we might take it somewhere.See Hearing Transcript, pages 63-64.
Q: Did he have a Discover card?
A: Yes, sir.
Q: And as a matter of fact, with the routine use of the card, did, in fact, he use it at different places at different times?
A: Yes, sir.
See Hearing Transcript, pages 64-65.
Analysis
It is not disputed that claimant was going home after his work day when the automobile accident occurred. Thus, the "going and coming" rule applies unless claimant's injury fits within a recognized exception to the rule. A review of the evidence in the record as a whole reveals that the claimant's injury fits within the "furnished transportation" exception to the "going and coming" rule.
The "furnished transportation" exception to the "going and coming" rule states that an injury sustained by the employee en route to or from work is nevertheless compensable if the employer furnished the mode of transportation. S ee Ark. Power Light Co. v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958). However, the exception does not apply if the transportation is furnished to the employee merely as a gratuity or accommodation. S ee Lepard v. West Memphis Mach. Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995). Stated positively, the exception does apply if the employer received some benefit in return for the furnishing of transportation to the employee. See id.
In his testimony as to why he allowed claimant to take a company vehicle home, Mr. Bowen indicated that it was a mere gratuity. However, a consideration of claimant's work duties and the terms and conditions under which claimant used the vehicle clearly indicates that respondent employer was not merely acting gratuitously when it provided the claimant with a company vehicle.
First, claimant's work with respondent employer required him to drive back and forth between multiple work sites in the course of a work day. Furthermore, the first work site to which he would report to begin the work day varied greatly. If respondent employer required the claimant to park the company vehicle that he used during the day at a central location instead of allowing him to take it home, it could cause lost time to respondent employer when claimant would have to return to the central location to pick up the truck the next day. The multi-site nature of claimant's work is akin to the nature of the employee's work in the seminal Arkansas case involving the "furnished transportation" exception, Arkansas Power Light Co. v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958). The Arkansas Supreme Court cited the fact that claimant was not confined to any particular place of work in the course of his work day as evidence that the truck was not furnished as a gratuity. S ee id. at 21.
Second, the testimony of both claimant and Mr. Bowen indicated that respondent employer paid for the entire maintenance on the vehicle, including all fuel expenses. The court in Cox also found it significant that the employer paid for all of the maintenance expenses on the vehicle. S ee id. Indeed, this fact certainly militates strongly against a determination that the furnishing of the vehicle was a mere gratuity. It would be the generous employer indeed who would agree to allow an employee to have a company vehicle merely for his own convenience and to also agree to pay for fuel burned by the employee for his own convenience. No business-minded employer would agree to such an arrangement unless it received something of business value in return.
Third, claimant testified that he did not have general permission from respondent employer to use the vehicle for personal purposes. He testified that "maybe 20" times he had called Mr. Bowen and asked him if it was acceptable for him to use the vehicle for certain non-work purposes. Although Mr. Bowen testified that he did not have a problem with claimant's using the truck for his personal purposes, he did not contradict claimant's testimony that claimant would call him when he desired to use the truck for personal purposes.
In sum, the evidence in the record clearly indicates that the respondent employer furnished a company vehicle to the claimant for business purposes, not merely as a gratuity to claimant. As such, the "furnished transportation" exception to the "going and coming rule" applies, and thus claimant's injury is compensable.
The Principal opinion cites the case of Lepard v. West Memphis Machine Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995), as authority to support its conclusion that the furnished transportation exception to the going and coming rule does not apply, and thus that claimant was not acting within the course and scope of his employment at the time of his accident. In the Lepard case, the Court of Appeals upheld the determination of the Commission that the vehicle furnished to the employee was furnished as a mere gratuity. However, as detailed above, the evidence in this case clearly indicates that the employer did not furnish the vehicle to the claimant as a gratuity, but rather did so to advance a business purpose.
The Majority has upheld the Administrative Law Judge's determination that the employer's allowing claimant to drive a company truck home each day was purely a gratuity. They state that "[t]he preponderance of the evidence indicates that the respondent employer gratuitously allowed the claimant to use the truck solely to accommodate and benefit the claimant." However, they cite no evidence from the record in support of this assertion except the self-serving testimony of Bob Bowen, the owner of respondent employer. And, as indicated above, the totality of the evidence in the record as to the furnishing of the truck to the claimant refutes Mr. Bowen's statement that the truck was furnished to claimant solely "to allow him ease to get back and forth to work." Therefore, contrary to the assertion of the Majority, I find that the preponderance of the evidence indicates that the furnishing of the vehicle in this case was not in fact a mere gratuity. Therefore, this case is factually distinguishable from Lepard.
The Concurring Opinion states that the preponderance of the evidence indicates that the claimant began and ended each work day at the same location, the company shop. However, I must respectfully disagree with this conclusion of the Concurring Opinion. Contrary to the assertion of the Concurring Opinion, there is a lack of evidence which indicates that the claimant habitually drove the "laborers" to the company shop prior to going home for the day. Essentially, the Concurring Opinion has inferred from the fact that claimant took the laborers back to the shop on the day in question, that he must have done it on the typical work day. I do not find such an inference to be supportable. Based upon the evidence cited by the Concurring Opinion in support of this inference, I find it to be equally plausible that the claimant's taking the "laborers" back to the shop was an unusual occurrence. I simply do not find the record to support an inference that more likely than not, the claimant drove home from the company shop on the typical work day.
The Concurring Opinion has also characterized my reasoning as to the probable reason why the claimant drove a company truck home as "conclusory." However, I find that my conclusion that more likely than not, the claimant drove the company truck home to serve a business purpose to be in accordance with the great weight of the evidence. While I acknowledge that there is no direct evidence in the record which indicates (1) that the claimant's first work site varied each day, and (2) that claimant drove a company truck home to obviate the need to drive to some location to pick up a company truck, I find that these two facts are reasonably inferable from the evidence in the record. As to (1), there was evidence in the record that the claimant worked at multiple work sites in the course of his job. It therefore follows that the first work site to which he reported probably varied from day to day. As to (2), I find that the multi-site nature of claimant's job, coupled with the facts that (a) most employers simply do not usually act gratuitously in dealing with their employees, and (b) the respondent employer paid for all fuel and maintenance expenses on the vehicle, supports the inference that claimant drove the vehicle home to obviate the need to drive to a central location to pick up a company truck prior to reporting to his first work site each day.
For these reasons, I respectfully dissent.
_______________________________ SHELBY W. TURNER, Commissioner