{ "id": 6141410, "name": "Teresa King WEBER v. ALL AMERICAN ARKANSAS POLY CORP.", "name_abbreviation": "Weber v. All American Arkansas Poly Corp.", "decision_date": "1994-07-06", "docket_number": "CA 93-750", "first_page": "311", "last_page": "318", "citations": [ { "type": "official", "cite": "46 Ark. App. 311" }, { "type": "parallel", "cite": "879 S.W.2d 462" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "41 Ark. App. 57", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137154 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/41/0057-01" ] }, { "cite": "42 Ark. App. 168", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139410 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0168-01" ] }, { "cite": "40 Ark. App. 108", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137880 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/40/0108-01" ] }, { "cite": "32 Ark. App. 29", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6644191 ], "weight": 3, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/32/0029-01" ] }, { "cite": "292 Ark. 219", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871237 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0219-01" ] }, { "cite": "313 Ark. 100", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914687 ], "weight": 6, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0100-01" ] }, { "cite": "39 Ark. App. 24", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136359 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/39/0024-01" ] }, { "cite": "39 Ark. App. 24", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136359 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark-app/39/0024-01" ] }, { "cite": "313 Ark. 100", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914687 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "106" }, { "page": "808" } ], "opinion_index": 2, "case_paths": [ "/ark/313/0100-01" ] }, { "cite": "39 Ark. App. 24", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136359 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "30" }, { "page": "873" } ], "opinion_index": 2, "case_paths": [ "/ark-app/39/0024-01" ] } ], "analysis": { "cardinality": 638, "char_count": 12455, "ocr_confidence": 0.87, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1749447554664384 }, "sha256": "6677fb3754d7b8e6e3dc54c3e4fa62906e5e0b85ec13e79050a7b2efe58d2f05", "simhash": "1:f18721641b968bc8", "word_count": 2098 }, "last_updated": "2023-07-14T21:17:20.155315+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, J., concurs.", "Mayfield and Cooper, JJ., dissent." ], "parties": [ "Teresa King WEBER v. ALL AMERICAN ARKANSAS POLY CORP." ], "opinions": [ { "text": "Judith Rogers, Judge.\nThis is an appeal from the Workers\u2019 Compensation Commission\u2019s order affirming and adopting the administrative law judge\u2019s opinion. The ALJ found that appellant had failed to prove that her premature labor arose out of and in the course and scope of her employment with appellee. On appeal, appellant contends that there is no substantial evidence to support the Commission\u2019s decision. We disagree and affirm.\nThe record reveals that appellant was five months pregnant while being employed by appellee in August of 1990. On August 17, 1990, appellant brought $1,000 in cash to work and left it in her purse. While at the office, the money was stolen. She discovered that someone had stolen her money when she had left work to run an errand. Appellant returned to work and reported the theft to her supervisor, John Phillips. Mr. Phillips phoned the police and reported the incident. A temporary employee confessed to the theft, and the money was returned to appellant. The episode, from its inception until the money was returned, lasted approximately thirty to forty-five minutes. According to appellant, she became so hysterical that she began to have contractions. She was hospitalized the same day and released two days later on August 19, 1990. On October 21, 1990, she again suffered pre-term contractions. She subsequently gave birth to a healthy child on November 12, 1990. Appellant filed a claim for temporary total disability benefits and medical costs related to her premature labor. Appellee controverted appellant\u2019s claim by arguing that her premature labor was not causally connected to her work as a receptionist.\nThe Commission determined that appellant had failed to prove the existence of a causal connection between her work and the premature birth of her child. Appellant argues, however, that her injury was compensable under the positional risk doctrine. She contends that, but for the fact that she was required to keep her money in her purse at her desk in an area accessible to other employees, she would not have been the victim of this theft and thus would not have suffered the premature birth of her child.\nAlthough the dissent states that we adopted the doctrine of positional risk in our decision Deffenbaugh Industries v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992), aff\u2019d, 313 Ark. 100, 852 S.W.2d 804 (1993), we note that that decision was an affirmance by an evenly divided court and is not entitled to precedential weight. See France v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987). Moreover, the supreme court reviewed and affirmed our decision in that case under a different theory, that of increased risk. Therefore, we have not adopted the doctrine of positional risk to date. We are reviewing the facts in this case to determine if this presents an appropriate case in which to decide if we are going to adopt the doctrine of positional risk.\nAn injury is deemed to arise out of the employment under the positional risk doctrine, if it is one that would not have occurred but for the fact that the conditions and obligations of the employment placed the employee in the position where the injury occurred. Kendrick v. Peel, Eddy & Gibbons Law Firm, 32 Ark. App. 29, 795 S.W.2d 365 (1990). The positional risk doctrine is implicated in circumstances where an employee is injured by a neutral risk to which she is exposed due to the conditions and obligations of her employment. Id. A neutral risk means that the risk which caused the injury was neither personal to the appellant nor distinctly associated with the employment. Deffenbaugh Industries & Travelers Ins. Co. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993).\nThe record discloses that appellant brought $1,000 to work and kept it in her purse on August 17. Appellant testified that the $1,000.00 was to pay for the birth of her child.\nMr. Phillips testified that the $1,000 was not company money. He said that he did not ask appellant to bring the money to the office on the day in question. Mr. Phillips stated that he did not know appellant had brought $1,000.00 to work that day. He said that he discouraged employees from bringing large sums of cash to the office and the plant. He added that he did not encourage anyone to bring any more money than they needed to get through the day. Mr. Phillips also remarked that the temporary employee would have had no reason, business or personal, to be in the office where appellant worked on the day in question.\nThe record further reveals that the night before the theft, appellant stayed all night at the hospital with her husband. Dr. Stephen R. Marks testified that emotional stress, such as that which might be caused by appellant\u2019s husband\u2019s illness, could possibly have triggered premature labor.\nThe Commission found that nothing about appellant\u2019s work as a receptionist subjected her to the risk of theft; that the theft of appellant\u2019s money was not the result of a work-related dispute between appellant and the temporary employee; and that appellant\u2019s work setting did not expose her to the danger of the theft of her money. The Commission concluded that the positional risk doctrine did not apply to the facts of this case because the risk involved was not neutral but one personal to the appellant.\nWhere the Commission\u2019s denial of relief is based on the claimant\u2019s failure to prove entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission\u2019s opinion displays a substantial basis for the denial of relief. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission\u2019s conclusion, we must affirm its decision. Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993). In conducting \u00f3ur review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993).\nAfter reviewing the record, we cannot say there is no substantial basis for the Commission\u2019s denial of benefits. The record indicates that appellant\u2019s job as a receptionist did not require her to handle sums of money. Apparently, appellant chose to bring the cash to work and leave it in her purse unattended. Also, the record reveals that employees were instructed not to bring valuables or excess money to work. We cannot disagree with the Commission\u2019s conclusion that the risk to which appellant was exposed was personal and thus defeated compensability under the positional risk doctrine.\nAlthough appellant purports to argue the positional risk doctrine, she suggests that the increased risk doctrine also applies. She contends that she was exposed to an increased risk of theft because of her employment setting.\nUnder the doctrine of increased risk, the injuries are compensable if the employment exposed the employee to a greater degree of risk than other members of the general public in the same vicinity. Under this theory, the claimant must only prove that the conditions of her employment, or the place where her employment required her to be, intensified the risk of injury due to extraordinary natural causes. Deffenbaugh Industries v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993).\nAs noted above, the Commission determined that appellant\u2019s work as a receptionist did not increase the risk of theft and that appellant\u2019s work setting did not increase the risk of theft of her money. After reviewing the evidence, we cannot disagree with the Commission\u2019s determination that appellant\u2019s work environment did not increase the risk of theft.\nAffirmed.\nPittman, J., concurs.\nMayfield and Cooper, JJ., dissent.", "type": "majority", "author": "Judith Rogers, Judge." }, { "text": "John Mauzy Pittman, Judge,\nconcurring. I fully agree with the majority opinion. However, in light of the position taken by the dissenting judges, I wish to state my further view that the positional risk doctrine is contrary to the provisions of the Arkansas Workers\u2019 Compensation Act and has no place in our law. My view on this issue is that as stated in the dissenting opinion of Chief Judge Cracraft in Deffenbaugh Industries v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992).", "type": "concurrence", "author": "John Mauzy Pittman, Judge," }, { "text": "Melvin Mayfield, Judge,\ndissenting. In this case the Commission adopted and affirmed the decision of the administrative law judge who held that the positional risk doctrine was not applicable under the facts in this case. This court adopted that doctrine in Deffenbaugh Industries v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992), where we said:\nWe now join those courts which accept the positional risk doctrine to provide compensation for employees who are injured by neutral risks. The question of who should bear the burden of the costs of such an injury is a policy consideration, and use of the positional risk doctrine where the risk is neutral places the risk of loss on the employer, the party most able to sustain such a loss. This, we believe, is in keeping with the spirit of our workers\u2019 compensation law.\n39 Ark. App. at 30, 832 S.W.2d at 873.\nThe law judge refused to apply the doctrine to this case based on the finding adopted by the Commission, that the risk in this case was personal to the claimant, and I agree with the appellant that the evidence will not support that finding. Absent some specific evidence to the contrary, I would agree with the following from 1 Larson, Workmen\u2019s Compensation Law \u00a7 11.11(b) at 3-199 to -201 (1993).\nA few other cases have also fallen into this error of insisting that the subject matter of the assault or dispute be inherent in the employment, disregarding the risk created by the employment environment. An employee may be required to work in a lonely and isolated spot in the small hours of the morning, yet if the robbers happen to take only his purse and nothing belonging to the employer, one or two courts have been able to satisfy themselves that this makes the assault personal and that there is no more to be said. Apart from the initial fallacy of supposing that what the robbers finally steal or do not steal demonstrates the motive of their attack, the greater fallacy is to suppose that there is only one possible way of connecting an attack with the employment \u2014 the subject matter of the assault.\nIn any case, even if the motive is to get the personal wallet of the victim, most robberies of this kind are not \u201cprivate\u201d in origin, in the compensation-law sense. There is a marked distinction between the holdup in which the robber says to himself, \u201cI am going to track down Henry Davis wherever he may be and steal the gold watch which I know he has,\u201d and the holdup in which the robber says, \u201cI am going to rob whoever happens to be on duty as night watchman at the Consolidated Lumber Company, or whoever happens to come down the dark, hidden path from the factory to the rear gate.\u201d The latter is not really personal to the victim at all; he is attacked exclusively in his employment capacity as being the one who occupies the position in relation to that employment which the robber has found to create a favorable opportunity.\nThere was no specific evidence in this case to overcome the natural and common-sense view taken by Larson. Since appellee\u2019s brief admits that appellant\u2019s supervisor acknowledged that there was no policy prohibiting employees from bringing sums of cash to work, and because there was no evidence of a business or personal reason for the theft of the appellant\u2019s money, I think that the positional risk doctrine should apply here.\nThe Arkansas Supreme Court reversed our decision in Def-fenbaugh because it found that our decision should be affirmed for another reason, but it stated that \u201can appropriate scenario to the positional risk doctrine may eventually arise.\u201d Deffenbaugh Industries v. Angus, 313 Ark. 100, 106, 852 S.W.2d 804, 808 (1993).\nI think the appropriate scenario has now arrived and should be applied in this case. Therefore, I dissent from the majority opinion.\nCooper, J., joins this dissent.", "type": "dissent", "author": "Melvin Mayfield, Judge," } ], "attorneys": [ "Davidson Law Firm Ltd., by: Clark W. Mason, for appellant.", "Anderson & Kilpatrick, by: Mariam T. Hopkins, for appellee." ], "corrections": "", "head_matter": "Teresa King WEBER v. ALL AMERICAN ARKANSAS POLY CORP.\nCA 93-750\n879 S.W.2d 462\nCourt of Appeals of Arkansas En Banc\nOpinion delivered July 6, 1994\nDavidson Law Firm Ltd., by: Clark W. Mason, for appellant.\nAnderson & Kilpatrick, by: Mariam T. Hopkins, for appellee." }, "file_name": "0311-01", "first_page_order": 341, "last_page_order": 348 }