Arkansas: Fall in Company Parking Lot While Returning Lunch Box is Not Compensable

Illustrating the significant deference given to the Commission’s factual findings, an Arkansas appellate court recently affirmed the denial of benefits to an employee who sustained injuries when he slipped and fell in the company parking lot as he returned his lunch box to his car midway through his 30-minute lunch break [Shelton v. Qualserve, 2013 Ark. App. 469, 2013 Ark. App. LEXIS 492 (Sept. 4, 2013)]. That he had not clocked out—employees were not required to do so during lunch breaks unless they left the premises—was not determinative. Observing that the company policy was to prohibit the employee’s from performing any work during their lunch breaks and that the employer did not require that he return his lunch box to his car, the court found that substantial evidence supported the Commission’s findings that the injuries were not sustained in the course and scope of the employment.  

Practitioners should recognize that while Arkansas has a typical requirement that to be compensable, the accidental injury must arise out of and in the course of employment [Ark. Code Ann. § 11–9–102(4)(A)(i)], it also employs an additional statutory provision that excludes from compensability any injury inflicted upon the employee at a time when employment services are not being performed [Ark. Code Ann. § 11–9–102(4)(B)(iii)]. This latter requirement has the effect of substantially narrowing the application of the personal comfort doctrine; in fact, the appellate court offered its decision without ever mentioning that doctrine or rule in place within the majority of American jurisdictions [see Larson’s Workers’ Compensation Law, § 21.01, et seq.]

Construing the “when employment services are being performed” requirement, the court stated that the test was 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. It noted that the employee had admitted he could leave his lunch box in the break room and sought to put it in his car for his own convenience.

The court also observed that the state’s supreme court had previously recognized that an injury could be compensable even when an employee was on break or had not yet clocked in, as long as the employee was performing employment services at the time the injury occurred (citing Hudak-Lee v. Baxter County Reg’l Hosp., 378 S.W.3d 77 (Ark. 2011), holding that a hospital employee was performing employment services when she stepped outside for a break in order to revive herself with outside air so that she could complete her shift); Jonesboro Care & Rehab Ctr. v. Woods, 2010 Ark. 482, holding that an employee was performing employment services when she stepped outside for a break while attending a mandatory seminar and was required to wait afterward to complete paperwork and pick up her paycheck; Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008), holding that an injury sustained by a janitor while opening a gate to a school parking lot upon returning from his lunch break was compensable because the janitor was performing employment services; Wallace v. W. Fraser S., Inc., 365 Ark. 68, 225 S.W.3d 361 (2006), holding that an employee injured while walking back to his work site after a break was performing employment services at the time of his injury particularly where he was not allowed to leave the workplace area during break; Collins v. Excel Specialty Prods., 347 Ark. 811, 819, 69 S.W.3d 14, 20 (2002), holding that an employee’s injury, suffered while taking a restroom break, was compensable, because the “restroom break was a necessary function and directly or indirectly advanced the interests of the employer”; White v. Georgia-Pac. Corp., 339 Ark. 474, 6 S.W.3d 98 (1999), holding that an employee’s injuries were compensable because the employee was required to monitor his work area while he was taking a smoke break and was thus performing employment services.

The court indicated, however, that those cases were distinguishable from the case at bar. It said that while the employee was not required to clock out if he stayed on premises, he did not receive any compensation for the time he was on break. Moreover, at the time of the fall, his break was only half over and he did not intend to immediately return to work. Substantial evidence supported the Commission’s finding that the employee’s injury did not occur within the time and space boundaries of his employment and, thus, was not compensable.