COLE v. PRINCE GARDNER, INC

Claimant appeals from a decision of the Administrative Law Judge filed September 29, 1995, denying compensability of her claim. After carefully conducting a de novo review of the matter, we are of the opinion that the Administrative Law Judge's decision should be affirmed. The claimant was not engaged in employment services at the time of her alleged injury and hence the claim is not compensable.

The claimant was an employee of the respondent employer and worked as a leather cutter in its Searcy, Arkansas facility. On March 24, 1994 the claimant had finished her shift and clocked out. According to the testimony, as she walked away from the time clock headed to the parking lot to go home for the day, someone spoke to her. She apparently turned to see who it was and when she turned back, she ran into a pole and struck her head. The pole was open and obvious in its placement just a few steps from the time clock. The claimant gradually began to develop complaints of pain and weakness in her extremities and was eventually diagnosed as having a subdural hematoma which was treated with surgery on May 12, 1994.

Since the incident in question occurred after July 1st of 1993, the provisions of Act 796 of 1993 apply to our determination of this case. Act 796 amended our prior statutory scheme so as to exclude from the definition of compensable injuries any injury suffered "at a time when employment services were not being performed." Ark. Code Ann. § 11-9-102 (5)(B)(iii) (Repl. 1996). The statute does not define the term "employment services." However, we have, in our past cases, defined that term by saying:

an employee is performing employment services when she is engaging in an activity which carries out the employer's purpose or advances the employer's interests . . . an employee carries out the employer's purpose or advances the employer's interests when she engages in the primary activity which she was hired to perform . . . . an employee carries out the employers' purpose or advances the employer's interests when she engages in incidental activities which are inherently necessary for the performance of the primary employment activity.

Patricia McCool v. Disabled American Veterans, Full Workers' Compensation Commission, Opinion filed June 3, 1996 (Claim No. E410491). See also, Cheri Petty v. Olsten Kimberly Quality Care, Full Workers' Compensation Commission, Opinion filed September 13, 1995 (Claim No. E405037) and Leah Hightower v. Newark, Arkansas, Public School System, Full Workers' Compensation Commission, Opinion filed January 22, 1996 (Claim No. E406098).

Act 796 of 1993, requires us to construe the statute's requirements "strictly," without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704 (Repl. 1996). We note that the "premises exception" to the "going and coming" rule was effectively abolished by the enactment of Act 796 and its requirement that to be compensable, an injury must occur while the employee is engaged in rendering "employment services." Hightower, Id.

The "going and coming" rule, as explained in Fisher v. Proksch, 20 Ark. App. 80, 723 S.W.2d 852 (1987), holds that as a general proposition, injuries sustained while an employee is coming from or going to work are not compensable as they were deemed not to arise out of the course and scope of employment. Rather it was recognized that in coming and going to work, an employee is subject to the same hazards and conditions as the general public is. See, City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982). However, an exception to this rule, called the "premises exception" was also recognized. This exception to the general rule of non-compensability held that an employee is permitted a reasonable time to enter or leave his place of employment and if an injury occurs during that time while the employee is upon property so close to the employer's premises as to be considered a part of the premises, then it is a compensable injury. The rationale being that the employment contemplates the employee's arrival and departure from work as much as it contemplates the actual work to be performed and therefore, it can be said the employee is within the course and scope of his employment at such times.See, Davis v. Chemical Construction Co., 232 Ark. 50, 334 S.W.2d 697 (1960); Bales v. Service Club No. 1, Camp Chaffee, 208 Ark. 692, 187 S.W.2d 321 (1945); and Johnson v. Clark, 230 Ark. 275, 322 S.W.2d 72 (1959).

Act 796 has effectively abolished this rule as we pointed out in Hightower, supra, with its requirement that the employee be "engaged in employment services" at the time of the injury and its mandate that we strictly construe the law. In the case at bar, the claimant was leaving her place of employment. She had already clocked out for the day and was not doing anything other than heading to her car on the parking lot. She was not engaged in any activity which may be said to be furthering her employer's interests. The claimant was therefore not engaged in employment services at the time of the incident. Since we must construe Act 796 strictly and since by the employee's own admission she was leaving work and had in fact already clocked out at the time of the incident, we must conclude that the claim is not compensable. The injuries did not arise at a time when the claimant was engaged in employment services as we have defined the term and as is required by Act 796. While an injury such as this may have been compensable under our prior statutory scheme where we construed the statutes liberally, it is not compensable under our current scheme. Prior to the enactment of Act 796, it was possible to find that an injury such as this arose in the course and scope of the employment pursuant to the "premises exception" to the "going and coming rule." However, our present statutory scheme requires that the claimant be engaged in employment services at the time the injury occurs and requires that we strictly construe the term. We cannot, therefore, find that a claimant who has ceased engagement in her primary job activity, clocked out and is injured on her way to her car to leave the premises, is engaged in "employment services." The decision of the Administrative Law Judge is therefore affirmed.

IT IS SO ORDERED.