{ "id": 6142965, "name": "OLSTEN KIMBERLY QUALITY CARE v. Cheri PETTEY", "name_abbreviation": "Olsten Kimberly Quality Care v. Pettey", "decision_date": "1996-12-23", "docket_number": "CA 96-77", "first_page": "343", "last_page": "348", "citations": [ { "type": "official", "cite": "55 Ark. App. 343" }, { "type": "parallel", "cite": "934 S.W.2d 956" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "320 Ark. 333", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451271 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0333-01" ] }, { "cite": "10 Ark. App. 254", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140886 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/10/0254-01" ] }, { "cite": "320 Ark. 501", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451284 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0501-01" ] }, { "cite": "261 Ark. 100", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678863 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/261/0100-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "opinion_index": 0 }, { "cite": "304 Ark. 632", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881017 ], "weight": 2, "year": 1991, "opinion_index": 1, "case_paths": [ "/ark/304/0632-01" ] }, { "cite": "206 Ark. 1099", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485056 ], "weight": 2, "year": 1944, "opinion_index": 1, "case_paths": [ "/ark/206/1099-01" ] }, { "cite": "315 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910462 ], "weight": 2, "year": 1993, "opinion_index": 1, "case_paths": [ "/ark/315/0079-01" ] }, { "cite": "304 Ark. 95", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881076 ], "weight": 2, "year": 1990, "opinion_index": 1, "case_paths": [ "/ark/304/0095-01" ] }, { "cite": "257 Ark. 647", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722611 ], "weight": 2, "year": 1975, "opinion_index": 1, "case_paths": [ "/ark/257/0647-01" ] }, { "cite": "207 Ark. 527", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481800 ], "weight": 2, "year": 1944, "opinion_index": 1, "case_paths": [ "/ark/207/0527-01" ] } ], "analysis": { "cardinality": 564, "char_count": 9532, "ocr_confidence": 0.832, "pagerank": { "raw": 2.60309745584039e-07, "percentile": 0.8196719190964415 }, "sha256": "36313f1a04c475cab7811a3dd99b0246056b7bab74afecdcb91901481123637b", "simhash": "1:8529acd90ede7607", "word_count": 1534 }, "last_updated": "2023-07-14T22:52:16.845649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mayfield, Rogers, and Neal, JJ., agree.", "Jennings, C.J., and Stroud, J., dissent." ], "parties": [ "OLSTEN KIMBERLY QUALITY CARE v. Cheri PETTEY" ], "opinions": [ { "text": "JAMES R. Cooper, Judge.\nThe appellee in this workers\u2019 compensation case was employed by the appellant as a nurse\u2019s assistant. Her duties required her to care for patients in their homes. She was compensated according to the time she actually spent in each patient\u2019s home. She used her own vehicle to travel to the homes but she received no wages for the time spent travelling and was not reimbursed for travel expenses. On April 21, 1994, the appellee was injured in an automobile accident while en route from the appellant\u2019s offices to the home of her first patient of the day. The appellee filed a claim for workers\u2019 compensation benefits and, on stipulated facts, the Commission held that the appellee\u2019s accident constituted a compensable injury under the Arkansas workers\u2019 compensation law as amended by Act 796 of 1993. From that decision, comes this appeal.\nFor reversal, the appellant contends that the Commission erred in concluding that the appellee was injured at a time when employment services were being performed.\nAct 796 of 1993 made sweeping changes to the Arkansas workers\u2019 compensation law. Among those changes was the redefinition of \u201ccompensable injury\u201d so as to exclude injury which was inflicted on the employee at a time when employment services were not being performed. Ark. Code Ann. \u00a7 11 -9-102(5) (B) (iii) (Repl. 1996). In the case at bar, the Commission reasoned that because the appellee\u2019s duties necessarily involved travel exceeding travel to and from a regular place of employment, the appellee was performing employment services at the time of her accident.\nThis is a case of first impression concerning the meaning of \u201cperforming employment services\u201d under \u00a7 11-9-102(5) (B)(iii). Arkansas Code Annotated \u00a7 11-9-1001 (Repl. 1996) provides that:\nThe Seventy-Ninth General Assembly realizes that the Arkansas workers\u2019 compensation statutes must be revised and amended from time to time. Unfortunately, many of the changes made by this act were necessary because administrative law judges, the Workers\u2019 Compensation Commission, and the Arkansas courts have continually broadened the scope and eroded the purpose of the workers\u2019 compensation statutes of this state. The Seventy-Ninth General Assembly intends to restate that the major and controlling purpose of workers\u2019 compensation is to pay timely temporary and permanent disability benefits to all legitimately injured workers that suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom, and then to return the worker to the work force. When, and if, the workers\u2019 compensation statutes of this state need to be changed, the General Assembly acknowledges its responsibility to do so. It is the specific intent of the Seventy-Ninth General Assembly to repeal, annul, and hold for naught all prior opinions or decisions of any administrative law judge, the Workers\u2019 Compensation Commission, or courts of this state contrary to or in conflict with any provision in this act. In the future, if such things as the statute of limitations, the standard of review by the Workers\u2019 Compensation Commission or courts, the extent to which any physical condition, injury, or disease should be excluded from or added to coverage by the law, or the scope of the workers\u2019 compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers\u2019 Compensation Commission, or the courts.\nThe legislature also changed the law so as to require the Commission and the courts to construe the Act \u201cstrictly,\u201d Ark. Code Ann. \u00a7 ll-9-704(c)(3) (Repl. 1996), rather than \u201cliberally in accordance with the chapter\u2019s remedial purposes\u201d as was the law prior to the 1993 amendment.\nThe Workers\u2019 Compensation Commission is an administrative agency, Ward School Bus Mfg., Inc. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977), and, as a general rule, reviewing courts recognize that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than are courts to determine and analyze legal issues affecting their agencies. Arkansas Dept. of Human Services v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995); see Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). Therefore, while not conclusive, the interpretation of a statute by an administrative agency is highly persuasive. Technical Services of Arkansas, Inc., v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995). We are persuaded by the Commission\u2019s reasoning in the case at bar.\nIn reaching its conclusion, the Commission reasoned that, because traveling was an inherent and necessary incident of the appellee\u2019s required employment activity, the appellee was performing employment services while en route from her employer\u2019s office to the patient\u2019s home. We agree. Although we recognize that the appellee was not direcdy compensated for driving to patients\u2019 homes, the payment of compensation is not conclusive to the question of whether employment services are being performed. For example, many workers, such as salesmen, are paid on the basis of commissions, but it is abundandy clear that a salesman who is attempting to make a sale is performing an employment service without regard to whether his attempt is successful.\nIt is likewise clear that delivering nursing services to patients at their homes is the raison d\u2019etre of the appellant\u2019s business, and that traveling to patients\u2019 homes is an essential component of that service. Whatever \u201cperforming employment services\u201d may mean in the context of Ark. Code Ann. \u00a7 11 \u2014 9\u2014102(5)(B)(iii), it must include the performance of those functions which are essential to the success of the enterprise in which the employer is engaged. Consequently, we hold that the Commission did not err in concluding that the appellee was performing employment services while en route from the employer\u2019s office to the patient\u2019s home.\nAffirmed.\nMayfield, Rogers, and Neal, JJ., agree.\nJennings, C.J., and Stroud, J., dissent.", "type": "majority", "author": "JAMES R. Cooper, Judge." }, { "text": "JOHN E. Jennings, Chief Judge,\ndissenting. The issue in this case is one of law because the facts were stipulated and are undisputed. Although we have always deferred to the Commission when it decides a question of fact, neither this court, nor the supreme court, has deferred to the Commission when the issue was the interpretation of a substantive workers\u2019 compensation statute.\nIt has long been the law in this state, as well as in most every other state, that an injury is compensable if it was one \u201carising out of and in the course of employment.\u201d See, e.g., Barrentine v. Dierks Lumber & Coal Co., 207 Ark. 527, 181 S.W.2d 485 (1944); American Red Cross v. Wilson, 257 Ark. 647, 519 S.W.2d 60 (1975). An enormous body of case law has developed interpreting this phrase and in most every instance the interpretation has been guided by the familiar rule that workers\u2019 compensation laws are remedial and to be liberally construed.\nAct 796 of 1993 made, as the majority says, \u201csweeping changes to the Arkansas Workers\u2019 Compensation Law,\u201d among them a requirement that the act be \u201cstrictly construed.\u201d Ark. Code Ann. \u00a7 ll-9-704(c)(3) (Repl. 1996). A strict construction requires that the language of the statute be narrowly construed. Arkansas Conference Assoc. of Seventh Day Adventist, Inc. v. Benton Cty. Bd. of Equalization, 304 Ark. 95, 800 S.W.2d 426 (1990). Strict construction requires that nothing is taken as intended which is not clearly expressed. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993). Strict construction is construction of a statute or other instrument according to its letter, which recognizes nothing that is not expressed, takes the language used in its exact and technical meaning, and admits no equitable considerations or implications. Arkansas State Highway Comm\u2019n v. Southwestern Bell Telephone Co., 206 Ark. 1099, 178 S.W.2d 1002 (1944), (McFadden, J., dissenting, quoting Black\u2019s Law Dictionary, 3rd ed. p. 413).\nMoreover, the basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Graham v. Forrest City Housing Authority, 304 Ark. 632, 803 S.W.2d 923 (1991). In my view the language of the act leaves no doubt that the General Assembly intended the statute in issue to be narrowly construed. Under a strict construction of the statute the claimant here was injured \u201cat a time when employment services were not being performed.\u201d Under the stipulated facts she was using her own vehicle to travel and would not begin earning wages until her arrival at the home of her first patient.\nWhile the Commission\u2019s decision is, in the abstract, a reasonable and sensible one and would be entirely supportable under prior law, I do not believe that this injury is \u201ccompensable\u201d under current law. The legislature has made its intention clear and I would give effect to that intention. It is, after all, the body charged with the responsibility for making law.\nI am authorized to state that Judge Stroud joins in this dissent.", "type": "dissent", "author": "JOHN E. Jennings, Chief Judge," } ], "attorneys": [ "Laser, Wilson, Bufford & Watts, P.A., by: Frank B. Newell, for appellant", "The Whetstone Law Firm, BA., by: Robert H. Montgomery, for appellee." ], "corrections": "", "head_matter": "OLSTEN KIMBERLY QUALITY CARE v. Cheri PETTEY\nCA 96-77\n934 S.W.2d 956\nCourt of Appeals of Arkansas En Banc\nOpinion delivered December 23, 1996\n[Petition for rehearing denied January 15, 1997.]\nLaser, Wilson, Bufford & Watts, P.A., by: Frank B. Newell, for appellant\nThe Whetstone Law Firm, BA., by: Robert H. Montgomery, for appellee." }, "file_name": "0343-01", "first_page_order": 369, "last_page_order": 374 }