University of Arkansas for Medical Sciences and Public Employee Claims Division v. Patricia Hines

Cite as 2019 Ark. App. 557
ARKANSAS COURT OF APPEALS
Digitally signed by Elizabeth Perry DIVISION II
Date: 2022.08.09 11:24:32 -05'00'
Adobe Acrobat version: No. CV-19-487
2022.001.20169

Opinion Delivered: December 4, 2019
UNIVERSITY OF ARKANSAS FOR
MEDICAL SCIENCES AND PUBLIC
EMPLOYEE CLAIMS DIVISION APPEAL FROM THE ARKANSAS
APPELLANTS WORKERS’ COMPENSATION
COMMISSION
V. [NO. G802238]

PATRICIA HINES
APPELLEE
AFFIRMED

RITA W. GRUBER, Chief Judge

Appellants University of Arkansas for Medical Sciences (UAMS) and the Public

Employee Claims Division appeal a decision of the Arkansas Workers’ Compensation

Commission awarding appellee Patricia Hines benefits for an injury to her left knee. For

reversal, appellants contend that the Commission erred in finding that Hines was performing

employment services at the time she was injured. We affirm.

On March 28, 2018, Hines slipped and fell at work resulting in a left-patella fracture,

which required surgical repair. 1 Following her injury, Hines filed a claim for workers’-

compensation benefits. Appellants controverted the claim in its entirety, alleging that Hines

was not performing employment services at the time of the accident. A hearing before an

1
About two weeks prior to the accident, Hines had submitted notice that she was
resigning as of March 30, 2018, because she was moving to Florida. Hines worked at UAMS
for about ten years.
administrative law judge (ALJ) took place on October 24, 2018. Hines was the only witness

to testify.

Hines testified that she worked for UAMS as a surgical-services patient-unit

coordinator. She worked from the front desk of the unit and was responsible for scheduling,

coordinating, and staffing the department’s thirty-two surgical rooms. Her normal shift was

from 2:00 p.m. to 10:30 p.m. She was required to clock in at the beginning of her shift and

clock out when it was over. Hines stated she had had two fifteen-minute breaks and a thirty-

minute lunch break. 2 Her breaks were not scheduled. She explained, “Because of the nature

of my position at the front desk, there is no scheduled time because there’s cases and there’s

emergencies and there’s traumas, so I have to fit in a break where I can, if I can.” She usually

combined her break with her lunch to take just one break.

On the day of her accident, Hines took her break at approximately 6:30 p.m. She

left her second-floor work area and rode the elevator down to the first floor. When she

exited the elevator, she answered a phone call from her granddaughter. She had taken

approximately ten to fifteen steps when she slipped and fell. Hines testified that when she

was taking her break she was not headed to any specific place. She often took her break in

the lobby because it was sunny, and she enjoyed the piano. Hines said that she generally

used her break to get away from her department and to take care of things she couldn’t

handle while she was at work, such as calling family members. She explained that she

2
On cross-examination, Hines said that she only had forty-five-minute breaks during
the six years she worked in that department.

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worked in a “very stressful department” and that breaks were necessary to refresh and return

with more energy and better performance.

Hines testified that she did not clock out during her breaks and was still on duty. She

explained there are emergencies and traumas at any time and that she is the only unit

coordinator on that shift. If there was an emergency, the head nurse would call her to return

immediately, which was why Hines stayed in the building and did not clock out. If she were

to leave the building, UAMS policy required her to clock out so they knew she was not in

the building. When asked if she was required to take her breaks on the premises or if she

could leave, Hines answered, “No, I could not leave.” The nurse manager covered her desk

when Hines was on break. On the day of the accident, Hines did not get a call to return,

but she had been called back three to four times during her six years in that position.

The ALJ found that Hines failed to prove by a preponderance of the evidence that

she was performing employment services at the time of her fall. The Commission, in a split

decision, reversed the decision of the ALJ. The Commission wrote:

In the case at bar, the claimant was within the time and space boundaries of
her employment, she was paid for her time and, even though she was not at her
designated work station, she was on the jobsite when she sustained her injury.
Additionally, as in Ray, supra, the claimant was required to leave her break and return
to work if she was needed to assist with an emergency or if a trauma occurred.

The present case is analogous to Ray, supra [Ray v. University of Arkansas, 66
Ark. App. 177, 990 S.W.2d 558 (1999)], and Kimbell, supra [Kimbell v. Assoc. of Rehab
Industries, 366 Ark. 297, 235 S.W.3d 499 (2006)]. The claimant testified that she was
taking a break but was still on duty because she remained in the building.
Additionally, the claimant remained on call at her jobsite, clocked in and available
for work. It appears that one of the essential functions of the claimant’s position was
to be on site, waiting for a trauma to occur so that she could coordinate any necessary
surgical procedures. The claimant testified that she was the only unit coordinator on
her shift and if she had been called to return to her desk because of an emergency or
trauma, she would have been required to do so. The claimant testified further that

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she had been called back from her lunch break in the past. Clearly, the respondent-
employer derived a benefit from the claimant remaining in the building, immediately
available to resume her duties. For the aforementioned reasons, we find that the
claimant was performing employment services.

Appellants filed a timely notice of appeal.

In reviewing a decision from the Commission, our court reviews the evidence and

all reasonable inferences deducible therefrom in the light most favorable to the

Commission’s findings and affirms if the decision is supported by substantial evidence. Kroger

Ltd. P’ship v. Bess, 2018 Ark. App. 404, at 6, 555 S.W.3d 417, 421. Substantial evidence

exists if reasonable minds could have reached the same conclusion without resort to

speculation or conjecture. Id. The issue is not whether the appellate court might have

reached a different result from that of the Commission but whether reasonable minds could

reach the result found by the Commission. Id. It is the Commission’s duty, not ours, to

make credibility determinations, to weigh the evidence, and to resolve conflicts in the

medical testimony. Id.

A compensable injury includes an accidental injury causing internal or external

physical harm to the body arising out of and in the course of employment and which

requires medical services or results in disability or death. Ark. Code Ann. § 11-9-

102(4)(A)(i) (Repl. 2012). A compensable injury does not include an injury that was

inflicted upon the employee at a time when employment services were not being performed.

Ark. Code Ann. § 11-9-102(4)(B)(iii). The supreme court has interpreted the term

“employment services” as performance of something that is generally required by an

employer. Cook v. ABF Freight Sys., Inc., 88 Ark. App. 86, 89, 194 S.W.3d 794, 796 (2004).

We use the same test to determine whether an employee was performing “employment

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services” as we do when determining whether an employee was acting within “the course

of employment.” Id. 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. Id.

Appellants contend that Hines was not performing employment services at the time

of her accident, but rather performing a personal errand, and that cases analogous to this one

require a finding that her injury is not compensable. See Harding v. City of Texarkana, 62

Ark. App. 137, 970 S.W.2d 303 (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); McKinney v. Trane Co., 84 Ark. App. 424, 143 S.W.3d 581 (2004) (affirming

the Commission’s decision that appellant was not performing employment services when

he was injured on break even though he felt an obligation to report or take care of anything

he might observe during his break and that he returned from break more refreshed and

better able to complete his work); Smith v. City of Fort Smith, 84 Ark. App. 430, 143 S.W.3d

593 (2004) (affirming the Commission’s decision that although the removal of waste by

appellant may have advanced the employer’s interests, at least indirectly, the removal of it

for the employee’s personal use was not inherently necessary to his job); Fulbright v. St.

Bernard’s Med. Ctr., 2016 Ark. App. 417, 502 S.W.3d 540 (affirming the Commission’s

decision that the employee, who worked mostly in the laundry room, was not performing

employment services when she was injured in the cafeteria when getting something to eat,

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which was considered a personal errand); Ganus v. St. Bernard’s Hosp., LLC, 2015 Ark. App.

163, 457 S.W.3d 683.

Of all the cases cited in support of reversal, appellants contend that Ganus, is most

similar factually to the present case. 2015 Ark. App. 163, 457 S.W.3d 683. There, Ganus

was a nurse in the cath lab. She argued that although she had a nurse covering her patient

when she was on her lunch hour, she was subject to being called back to the unit if there

was a problem. In affirming the Commission’s decision finding that she was not performing

employment services when she fell in the cafeteria during her lunch break, we stated that

even though there may be evidence that could support a finding different than the

Commission’s, such is not a proper basis for reversal. Id. at 9, 457 S.W.3d at 688. This court

noted that the evidence relied on by the Commission was that Ganus was on a personal

errand to retrieve food for her own benefit; the employee handbook provided that an

employee should be considered to be “completely relieved” of her work responsibilities

while on break, and Ganus left her patient in the hands of another employee before she

went to retrieve her lunch. Id.

Appellants also argue that the cases relied on by the Commission in finding that Hines

was performing employment services— Kimbell, 366 Ark. 297, 235 S.W.3d 499 (2006) and

Ray, 66 Ark. App. 177, 990 S.W.2d 558 (1999)—are distinguishable. In Ray, the claimant

was a food-service worker who was injured when she slipped as she was getting a snack to

eat during her paid break. The university provided free meals to the cafeteria workers as

inducement for the employee to remain on the premises and required workers to be

available to assist students. 66 Ark. App. 177, 990 S.W.2d 558. In reversing the

6
Commission’s decision that the claimant was not performing employment services, we

stated that “it is clear that when an employer requires an employee to be available for work

duties, the employee is performing employment services.” Id. at 182, 990 S.W.2d at 562.

We held that the claimant was performing employment services despite the fact that her fall

occurred when she was going to get a snack during a paid break rather than going to serve

a student. Id.

In Kimbell, the claimant was a rehabilitation specialist who helped individuals with

disabilities find employment. When he was outside on a smoke break, he was approached

by a client asking questions. During this encounter, the claimant began backing up out of

fear and fell off a porch, which resulted in injury. In reversing the Commission’s decision,

our supreme court held that while on break talking to the client, the claimant was advancing

the employer’s interest. Kimbell, 366 Ark. at 303, 235 S.W.3d at 504.

While we agree that Ganus, supra, is most similar factually of all the cases cited by

appellants in support of their argument, it is distinguishable. Although Ganus argued that

she was subject to being called back to the unit if there was a problem, the employee

handbook indicated that an employee was considered completely relieved of his or her

duties while on break. Ganus, 2015 Ark. App. 163, at 9, 457 S.W.3d at 688. Also, Ganus

had another employee monitoring her patient. Here, Hines’s testimony was that she was

subject to being called back to her unit. In addition, although Hines had the nurse manager

covering her station, Hines was the only one in her position during her shift.

We agree with the Commission that this case is more analogous to Ray, supra. Here,

Hines testified that during her break she remained on duty and in the building; she was

7
clocked in; and she remained on call and available to work. She testified that she was the

only unit coordinator on her shift and that if she had been called to return to her desk

because of an emergency or a trauma, she would have been required to do so. She stated

that she had been called back three or four times in the past. Based on this testimony, the

Commission concluded that Hines was performing employment services because UAMS

derived a benefit from Hines’s “remaining in the building, immediately available to resume

her duties.” As in Ray, supra, the fact that Hines was on a personal call at the time of her

injury is of no consequence because evidence indicated the employer required her to resume

her duties when called. Because the Commission’s decision is supported by substantial

evidence, we affirm.

Affirmed.

VIRDEN and HARRISON, JJ., agree.

Robert H. Montgomery, for appellants.

Moore, Giles & Matteson, L.L.P., by: Greg Giles, for appellee.

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