Ganus v. St. Bernard's Hosp. LLC , 457 S.W.3d 683 ( 2015 )


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  •                                  Cite as 
    2015 Ark. App. 163
    ARKANSAS COURT OF APPEALS
    DIVISION III
    No. CV-14-740
    STEPHANIE GANUS                                    Opinion Delivered   March 11, 2015
    APPELLANT
    APPEAL FROM THE ARKANSAS
    V.                                                 WORKERS’ COMPENSATION
    COMMISSION
    ST. BERNARD’S HOSPITAL, LLC,                       [NO. G308350]
    EMPLOYER; RISK MANAGEMENT
    RESOURCES, CARRIER
    APPELLEES                     AFFIRMED
    ROBERT J. GLADWIN, Chief Judge
    Stephanie Ganus appeals the August 4, 2014 opinion of the Arkansas Workers’
    Compensation Commission finding that she failed to prove that her injury arose out of and
    in the course of her employment. On appeal, she argues that the Commission misapplied
    the law. We affirm.
    Appellant testified that she worked as a registered nurse in the cath lab for appellee St.
    Bernard’s Hospital, LLC. Her duties included the pre-op and post-op of patients who had
    cardiac stents. She worked twelve-hour shifts, and her work involved lifting heavy people
    onto stretchers. She claimed that she had no physical limitations preventing her from
    performing her regular job duties before the incident at issue. She admitted that she was
    involved in a car wreck in 1994 that resulted in right-knee surgery, and she claimed that she
    had recovered from that surgery and was able to do all of her job duties in the cath lab.
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    2015 Ark. App. 163
    Appellant explained that the lab employees take breaks when they can and that they
    normally do not clock out for lunch unless they leave the premises. Employees’ paychecks
    are automatically deducted thirty minutes for lunch. If employees do not leave the premises,
    they make sure their patients are stable and tell a co-worker that they are taking a lunch
    break. She testified that when employees go on a break or to lunch, they are not completely
    relieved of their job duties because they must always represent St. Bernard’s. She asserted
    that if someone in the hallway needed help or was lost, or if trash needed picking up, the
    employee was expected to take care of it. She said that it was required that the employee
    must escort whoever might be asking for directions. Further, she said that she was subject
    to being called back to her unit if she were on break or at lunch. She explained that the
    “Committed to Excellence Pledge” required that employees always acknowledge their
    patients, customers, and visitors.
    On September 17, 2013, she had a patient in bad shape, and it took extensive care for
    him to become stable. She decided that it was okay to take a break at 12:30 p.m. and told
    a co-worker that she was going to run downstairs, grab something to eat, and bring it back.
    Her co-worker agreed to monitor the patient. Appellant did not clock out. When appellant
    left to go to the cafeteria, Larinda Lynch, a patient-care technician in the cath lab, went
    along. As appellant stepped onto the elevator, she tripped and fell. She injured her right
    knee and could not stand up. When the elevator opened on the first floor, an employee was
    there with an empty wheelchair. Appellant was helped into the wheelchair and taken to the
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    2015 Ark. App. 163
    emergency room. A four-view x-ray of her right knee revealed a fracture. She was sent
    home, and she testified that she had not been back to work since that day.
    After being referred to several doctors, appellant had an ACL repair on her right knee
    performed on December 17, 2013. Her condition improved somewhat, but she continued
    to walk with a limp, had a lot of pain and swelling, and participated in physical therapy three
    times a week. She claimed that she could not return to being on her feet eight-to-twelve
    hours a day. She was still under a doctor’s care and was taking hydrocodone for pain. She
    said that she could not perform her RN duties while taking hydrocodone.
    On cross-examination, appellant stated that she was not going to discharge a job duty
    when she walked onto the elevator on her way to get lunch that day. She also said that the
    employee handbook stated that during meal periods, it was anticipated that employees would
    be completely relieved of their work responsibilities.
    Larinda Lynch testified that she recalled taking a break on September 17, 2013, in
    order to go to lunch with appellant. She said that they left the cath lab and walked down to
    the elevators. She said that the floor of the elevator did not meet the floor of the hospital,
    and appellant caught her foot on the gap and fell into the elevator, hitting her knee. She said
    that they did not usually clock out for lunch and that the time was docked from their pay.
    She reiterated appellant’s testimony that employees were expected to assist patients at all
    times and that they were to keep trash and spills cleaned. She stated that neither of them
    were engaged in any job-related tasks at the time that appellant was injured and that they
    were both going to lunch.
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    2015 Ark. App. 163
    After appellant requested workers’ compensation benefits and was denied her claim,
    a hearing was conducted, and the administrative law judge (ALJ) received the testimony as
    set forth above and reviewed the medical reports. The ALJ determined that appellant
    sustained an injury to her right knee arising out of and in the course of her employment that
    rendered her temporarily totally disabled for the period commencing September 18, 2013,
    until the end of her healing period, a time yet to be determined. Appellees filed a notice of
    appeal to the Full Commission, which reversed the ALJ’s decision. The Commission held
    that appellant failed to prove that she was performing employment services at the time of her
    injury, finding as follows:
    In the present claim, the claimant was going to retrieve her own lunch from
    the cafeteria downstairs when she tripped and fell. The record shows that she was
    permitted a thirty minute lunch each day, and that her pay was automatically docked
    for that time whether she took lunch or not. And, while the testimony of Ms. Lynch
    corroborated the claimant’s testimony that, as representatives of the respondent-
    employer, nurses were expected to assist patients and/or visitors any time the need
    arose, the claimant was assisting no one at the time of her accident. Furthermore, the
    claimant admitted that she was not in possession of any patient charts, notes, or other
    work materials at the time of the accident. Further, the claimant agreed that the
    employee handbook, which she acknowledged and signed, specifically stated that
    employees on their thirty minute lunch break were “completely relieved” of their
    work responsibilities. Furthermore, the claimant’s testimony, as corroborated by the
    record, shows that the claimant was free to leave the premises during her lunch time
    if she so chose. Finally, although the claimant had been one-on-one with a critical
    patient prior to her lunch break, that patient was left under the supervision of another
    nurse at the time of the claimant’s injury. Clearly, at the time of her accident the
    claimant was not engaged in any activity that benefitted her employer, either directly
    or indirectly, nor did her actions advance the employer’s interests in any way.
    Rather, the particular facts of this claim show that the claimant was beginning her
    lunch break when she tripped and fell on the way to the cafeteria to retrieve her own
    lunch. Therefore, we find that the claimant has failed to prove by a preponderance
    of the evidence that she was performing employment services at the time she was
    injured.
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    Appellant filed a timely notice of appeal, arguing that the Commission incorrectly
    applied the law to the undisputed facts of this case. When reviewing a decision of the
    Workers’ Compensation Commission, this court views the evidence and all reasonable
    inferences deducible therefrom in the light most favorable to the findings of the Commission.
    Trezza v. USA Truck Inc., 
    2014 Ark. App. 555
    , 
    445 S.W.3d 521
    . This court must affirm the
    decision of the Commission if it is supported by substantial evidence. 
    Id. Substantial evidence
    is that evidence which a reasonable mind might accept as adequate to support a conclusion
    of the Commission. 
    Id. The issue
    on appeal is not whether the appellate court might have
    reached a different result or whether the evidence would have supported a contrary finding;
    if reasonable minds could reach the Commission’s conclusion, the appellate court must affirm
    its decision. 
    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 which 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 services” as we do when
    determining whether an employee was acting within “the course of employment.” 
    Id. The 5
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    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. Appellant contends
    that the facts are undisputed. She first claims that the fact she was
    not engaged in assisting a patient or visitor, carrying files, picking up trash, or cleaning up a
    spill while on a break is not dispositive of whether she was performing employment services.
    She cites Texarkana School District v. Conner, 
    373 Ark. 372
    , 
    284 S.W.3d 57
    (2008), and Ray
    v. University of Arkansas, 
    66 Ark. App. 177
    , 
    990 S.W.2d 558
    (1999), as directly on point.
    In Texarkana School District, the claimant worked for the district as a janitor and broke
    his leg while opening a locked gate upon his return from his lunch break. Texarkana Sch.
    
    Dist., 373 Ark. at 373
    –74, 284 S.W.3d at 59. The Commission found that the injury
    occurred while the claimant was advancing his employer’s interests. 
    Id. This court
    reversed
    the Commission, and our supreme court was presented with a petition for review. 
    Id. In affirming
    the Commission’s decision, the supreme court reasoned as follows:
    It is axiomatic that questions concerning the credibility of witnesses and the
    weight to be given to their testimony are within the exclusive province of the
    Commission. Cedar Chem. [Co. v. Knight], 
    372 Ark. 233
    , 
    273 S.W.3d 473
    [(2008)].
    As such, we are foreclosed from determining the credibility and weight to be
    accorded to each witness’s testimony. Id.; Arbaugh v. AG Processing, Inc., 
    360 Ark. 491
    , 
    202 S.W.3d 519
    (2005). Here, there was no testimony presented to contradict
    that of Conner’s that he was on call once he returned to the District’s premises, and
    the Commission found him to be a credible witness. Moreover, the evidence
    demonstrated that the main entrance to this particular lot was blocked. In attempting
    to unlock the gate and provide access to the back entrance, Conner was advancing
    his employer’s interests by allowing other employees to enter or exit this parking lot,
    even if he was the only employee attempting to access the lot at the exact time of his
    accident. Accordingly, we must affirm the Commission’s decision as reasonable minds
    could have reached the same conclusion as that of the Commission.
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    Texarkana Sch. 
    Dist., 373 Ark. at 377
    –78, 284 S.W.3d at 61–62.
    In 
    Ray, supra
    , the claimant was a food-service worker for the university and was on
    a paid fifteen-minute break when she slipped as she was getting a snack from the cafeteria to
    eat during her break. 
    Ray, 66 Ark. App. at 177
    –79, 990 S.W.2d at 559–60. This court
    overturned the Commission’s denial of benefits, holding that the claimant was performing
    employment services at the time she was injured based on the fact that she was paid for her
    fifteen-minute breaks and was required to assist students if the need arose; thus, the employer
    gleaned benefit from the claimant’s being present and required to aid students on her break.
    
    Id. We noted
    that the employer furnished food for its resting employees and paid for the
    break to induce them to be available to serve students even during the break period. 
    Id. We concluded
    that it is clear when an employer requires an employee to be available for work
    duties, the employee is performing employment services. 
    Id. Appellant argues
    that she was subject to being called back to her unit if there were a
    problem with her patient during the lunch hour. She contends, therefore, that appellee
    received a benefit from her presence and availability. She maintains that, even though she
    was not engaged in assisting a patient or visitor or picking up trash at the time of her injury,
    there was no basis to conclude that she was not performing employment services.
    Next, appellant claims that the Commission’s finding that she was “completely
    relieved” of her work responsibilities during her lunch break was erroneous. She contends
    that the handbook stated that employees “may be entitled” to a thirty-minute lunch break
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    2015 Ark. App. 163
    and that “it is anticipated that employees will be completely relieved of their work
    responsibilities” during this period. She argues that this language indicates that employees
    might get a lunch break during which they do not have to be available for work duties. She
    further contends that the policy was never followed.
    In contrast, she claims that the policy always followed was the Committed to
    Excellence Pledge, which was based on the premise that employees were to always help
    patients and visitors and exhibit a Christ-like attitude. Appellant further maintains that her
    unrebutted testimony, and that of Larinda Lynch, was that employees were never completely
    relieved of all job duties, even while on break or at lunch.
    She contends that the fact that her lunch break was “unpaid” is of no consequence,
    citing Hudak-Lee v. Baxter County Regional Hospital, 
    2011 Ark. 31
    , 
    278 S.W.3d 77
    . There,
    our supreme court stated that an injury is 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. 
    Id. Appellant also
    claims that it was irrelevant that she could have left the premises for
    lunch, as she did not leave on the date of the injury. Finally, appellant argues that simply
    because she was temporarily relieved of some of her job duties when she left the patient in
    another nurse’s care does not mean that she was relieved of all of her job duties. She
    contends that she was expected to perform, or be available to perform, certain tasks at any
    time that she was on the premises.
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    We agree with appellees’ contention 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. See Haynes v. Ozark Guidance Ctr., Inc., 
    2011 Ark. App. 396
    , 
    384 S.W.3d 570
    (where this court affirmed the Commission’s finding that employment services were not
    being performed, discussing case law and the applicable standard of review). The evidence
    noted by the Commission was that appellant 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 appellant
    specifically left her patient in the hands of another employee before she went to retrieve her
    lunch. Based on these considerations and being bound by the standard of review, we hold
    that a reasonably minded person could reach the same result as the Commission.
    Accordingly, we affirm.
    Affirmed.
    KINARD and BROWN, JJ., agree.
    M. Keith Wren, for appellant.
    Worley, Wood & Parrish, P.A., by: Jarrod S. Parrish, for appellees.
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