{ "id": 6141778, "name": "Tony MONCUS, Deceased v. BILLINGSLEY LOGGING and American Interstate Insurance Company", "name_abbreviation": "Moncus v. Billingsley Logging", "decision_date": "2005-12-07", "docket_number": "CA 05-264", "first_page": "402", "last_page": "410", "citations": [ { "type": "official", "cite": "93 Ark. App. 402" }, { "type": "parallel", "cite": "219 S.W.3d 680" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "31 Ark. App. 245", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141439 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/31/0245-01" ] }, { "cite": "13 Ark. App. 194", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139735 ], "weight": 4, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/13/0194-01" ] }, { "cite": "85 Ark. App. 61", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137050 ], "weight": 3, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark-app/85/0061-01" ] }, { "cite": "347 Ark. 851", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683187 ], "weight": 4, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/347/0851-01" ] }, { "cite": "347 Ark. 811", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683196 ], "weight": 4, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/347/0811-01" ] }, { "cite": "82 Ark. App. 600", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6143443 ], "weight": 6, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/82/0600-01" ] }, { "cite": "35 Ark. App. 32", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6646872 ], "weight": 2, "year": 1991, "opinion_index": 1, "case_paths": [ "/ark-app/35/0032-01" ] }, { "cite": "74 Ark. App. 322", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141492 ], "weight": 2, "year": 2001, "opinion_index": 1, "case_paths": [ "/ark-app/74/0322-01" ] }, { "cite": "328 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50383 ], "weight": 2, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark/328/0381-01" ] }, { "cite": "76 Ark. App. 42", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137122 ], "weight": 3, "year": 2001, "opinion_index": 1, "case_paths": [ "/ark-app/76/0042-01" ] }, { "cite": "63 Ark. App. 171", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139183 ], "weight": 2, "year": 1998, "opinion_index": 1, "case_paths": [ "/ark-app/63/0171-01" ] }, { "cite": "87 Ark. App. 263", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139764 ], "weight": 2, "year": 2004, "opinion_index": 1, "case_paths": [ "/ark-app/87/0263-01" ] }, { "cite": "66 Ark. App. 177", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139035 ], "weight": 2, "year": 1999, "opinion_index": 1, "case_paths": [ "/ark-app/66/0177-01" ] }, { "cite": "13 Ark. App. 194", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139735 ], "weight": 2, "year": 1985, "opinion_index": 1, "case_paths": [ "/ark-app/13/0194-01" ] }, { "cite": "347 Ark. 811", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683196 ], "weight": 2, "year": 2002, "opinion_index": 1, "case_paths": [ "/ark/347/0811-01" ] } ], "analysis": { "cardinality": 699, "char_count": 16610, "ocr_confidence": 0.751, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.3115633382486778 }, "sha256": "b5b84f7c67bee55683c822cd5634dfbf99099019d284d1e1913f94b0653060aa", "simhash": "1:35d98a4b7111711b", "word_count": 2766 }, "last_updated": "2023-07-14T22:52:25.043286+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Baker, Robbins, Griffen and Crabtree, JJ., agree.", "Bird, J., dissents." ], "parties": [ "Tony MONCUS, Deceased v. BILLINGSLEY LOGGING and American Interstate Insurance Company" ], "opinions": [ { "text": "Andree Layton Roaf, Judge.\nThis is a workers\u2019 compensation dginvolving e. \u201cgoing-and-coming rule.\u201d Tony Moncus was killed in an automobile accident while on his way to work for appellee Billingsley Logging. The issue on appeal is whether he was performing employment services at the time he was killed. The ALJ found that Moncus was not performing employment services, and the Commission agreed. Moncus\u2019s representative (\u201cMoncus\u201d) argues on appeal that this ruling is erroneous. We affirm.\nMoncus worked as a log cutter for Billingsley Logging. On August 19, 2003, he was killed in a motor-vehicle accident while driving his personal truck to the site where he would be logging that day. Mitchell Billingsley, the owner of Billingsley Logging, testified that he tried to get Moncus to ride in a company truck but that Moncus insisted upon driving his personal truck to the job site because he wanted to leave the job site early for a personal errand. Billingsley told the whole logging crew to meet at a service station that was centrally located to everyone\u2019s house around 6:30 a.m. so that he could show them where they would be logging that day. Billingsley told the crew to follow him, and the caravan left the parking lot on their way to the new logging site with everyone riding in a company truck except for Moncus. According to Billingsley, the crew only met like this before work approximately four to five times a year because, most of the time, the crew knew how to get to the logging site where they would be working for the day.\nMoncus was killed in a head-on motor-vehicle accident before he ever arrived at the logging site. He was driving his own pickup truck and there were no tools or equipment in his truck that belonged to Billingsley Logging. Moncus was paid according to the number of tons of wood that he cut, so he was paid nothing on the day of his death because he had not yet cut any wood.\nA claim was filed for workers\u2019 compensation benefits on behalf of Moncus. The administrative law judge (ALJ) held that Moncus did not sustain a compensable fatal injury because he was not performing an employment service at the time the accident occurred. The ALJ found that the preponderance of the evidence did not prove that Moncus\u2019s death was the result of any injury that was compensable under the Workers\u2019 Compensation Act. The Arkansas Workers\u2019 Compensation Commission affirmed and adopted the decision of the ALJ.\nIn reviewing decisions from the Workers\u2019 Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission\u2019s findings, and we affirm if substantial evidence supports the decision. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding. Id. If reasonable minds could reach the Commission\u2019s conclusion, we must affirm the Commission\u2019s decision. Id. We will not reverse the Commission\u2019s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the Commission\u2019s conclusions. Id.\nArkansas Code Annotated section 11\u20149\u2014 102(4)(A)(1) (Supp. 2003) defines compensable injury as \u201can accidental injury causing internal or external harm . . . arising out ofandinthe course of employment....\u201d Employment services are performed when the employee does something that is generally required by his or her employer. Collins v. Excel Spec. Prods., 347 Ark. 811, 69 S.W.3d 14 (2002); Pifer v. Single Source Transp. 347 Ark. 851, 69 S.W.3d 1 (2002). We use the same test to determine whether an employee was performing \u201cemployment services\u201d as - we do when determining whether an employee was acting within \u201cthe course of employment.\u201d Collins, supra; Pifer, supra. The test is whether the injury occurred \u201cwithin the time and space boundaries of employment, when the employee [was] carrying out the employer\u2019s purpose or advancing the employer\u2019s interests directly or indirectly.\u201d Collins, supra; Pifer, supra.\nAn employee traveling to and from the workplace is generally not acting within the course of employment. Swearengin v. Evergreen Lawns, 85 Ark. App. 61, 145 S.W.3d 830 (2004). The \u201cgoing-and-coming\u201d rule ordinarily precludes recovery for an injury sustained while an employee is going to or returning from work. Id. The rationale behind this rule is that an employee is not within the course of his employment while traveling to and from his job, and all persons, including employees, are subject to the recognized hazards of travel to and from work in a vehicle. Id.; Am. Red Cross v. Hogan, 13 Ark. App. 194, 681 S.W.2d 417 (1985). There are exceptions to the going-and-coming rule:\n(1) where an employee is injured while in close proximity to the employer\u2019s premises; (2) where the employer furnishes the transportation to and from work; (3) where the employee is a traveling salesman; (4) where the employee is injured on a special mission or errand; and (5) when the employer compensates the employee for his time from the moment he leaves home until he returns home.\nSwearingen, supra (citing Jane Traylor, Inc. v. Cooskey, 31 Ark. App. 245, 792 S.W.2d 351 (1990)).\nAppellant concedes that if Moncus had been killed while he was simply driving to work like he did on most days, to a location he already knew, this claim would not be compensable. Appellant argues, however, that the day in question was not a \u201cnormal\u201d workday because Billingsley ordered his employees to meet him at a gas station so that he could have the employees follow him to the tract of land because only he knew where it was. Appellant asserts that Moncus was performing employment services when he was killed driving to the job site because Billingsley admitted that meeting at the gas station benefited his company and insured that he could successfully conduct his business on the day in question.\nThere is no question that meeting at the gas station and following Billingsley in convoy fashion to the job site was not normally how the employees got to work, and, in fact, this was quite rare. It is also clear that this case fits within the going-and-coming rule, and it does not meet any of the exceptions to this rule. At his own request, Moncus was traveling to the job site in his personal vehicle that contained none of Billingsley Logging\u2019s property. Moncus was not being paid at the time of the accident and would not have been paid until he arrived at the job site and began to cut trees.\nThe rationale of the ALJ, which was adopted by the Commission, was the following:\nIn the present claim I find that [Moncus] was not performing an employment service at the time that the tragic accident occurred. As discussed above, employees of [Billingsley Logging] were responsible for providing their own transportation to and from the tracts of land where timber was cut each day. On rare occasions, approximately two to three times each year, work would begin on a new tract of land and the employees would not be familiar with the location of that tract ofland. Although the employees meet Mr. Billingsley and follow him to the tract of land on the first day the timber is cut from such tracts, it cannot be said that their travel to the tract of land advances the employer\u2019s purpose or interest on those days any more than any other day when the employees travel to the tract of land where timber is to be cut.\nWe find that this case is analogous to Hogan, supra, where this court held that the going-and-coming rule precluded a nurse working in a bloodmobile from receiving workers\u2019 compensation benefits for injuries sustained while en route to meet the unit. In Hogan, the nurse was subject to risks common to all others on streets and highways and there was no substantial evidence to support the conclusion that it was the Red Cross\u2019s customary practice to provide transportation during inclement weather even though, on at least one occasion, it had provided transportation. Id. In the present case, while it was not customary for the logging employees to meet at the gas station to follow Billingsley, they did do this a few times per year when commencing work at a new job site. In either case, Moncus was required to travel to the actual job site where his work would begin, and his case does not fall within one of the recognized exceptions to the going-and-coming rule. For these reasons, his claim is not compensable.\nAffirmed.\nBaker, Robbins, Griffen and Crabtree, JJ., agree.\nBird, J., dissents.", "type": "majority", "author": "Andree Layton Roaf, Judge." }, { "text": "Sam Bird, Judge,\ndissenting. I respectfully disagree with the dge, the majority that appellant, Tony Moncus, was not performing employment services at the time of his accidental death. Appellee Billingsley Logging was in the business of harvesting logs under contract with Weyerhaeuser. Moncus was employed by Billingsley as a log cutter who was paid according to the weight of the logs that he cut. The site of the log harvesting varied in location from time to time and was determined by Billingsley in coordination with Weyerhaeuser. Under normal circumstances, Moncus would know the location of the job site on any given day, and would drive his personal truck from his home to the site, where he would begin his assigned job of cutting logs. However, on rare occasions, \u201ctwo or three times a year\u201d according to Billingsley, a work site would be unknown to Billingsley\u2019s employees in advance, so they would be instructed by telephone to meet at a location specified by Billingsley, from which location the employees would follow Billingsley in convoy fashion to the day\u2019s work site. The day that Moncus was killed, August 19, 2003, was one of those rare occasions.\nBillingsley testified that on August 19, he instructed Moncus and the other employees to meet him at the Shell gas station in Nashville, Arkansas, \u201cbecause we [were] moving to a new tract of timber over in the Hope area and they would have to follow me to work to know where they were going. They didn\u2019t know where it was. I did.\u201d Billingsley further testified that meeting at the Shell station \u201cwas not an optional meeting, it was mandatory if they wanted to work that week,\u201d and that \u201c[w]e did not discuss how we were going to get to the new tract of land. I just told them to stay behind me. To follow me. It was kind of like a convoy. I was leading. I expected them to follow me.\u201d Moncus was killed in a head-on automobile collision while following Billingsley to the new job site. In my opinion, Moncus was performing employment services at the time of his fatal automobile accident, and his death was therefore a compensable workers\u2019 compensation claim.\nI disagree with the majority\u2019s holding that this case is analogous to American Red Cross v. Hogan, 13 Ark. App. 194, 681 S.W.2d 417 (1985). In Hogan, a nurse was precluded by the going-and-coming rule from receiving workers\u2019 compensation benefits when she was injured in an automobile accident while she was en route to a location where she was to meet a bloodmobile that would transport her to a designated place of work. However, Moncus\u2019s death did not occur while he was en route to the Shell station. Had that been the case, I would agree that his trip would have been within the going-and-coming rule and that his death would not be compensable under our workers\u2019 compensation law. Rather, here, Moncus had safely arrived at the Shell station where Billingsley had instructed his employees to meet him, and he was later killed while performing the task he was directed to perform, following his employer to the new work site.\nIn my view, the majority\u2019s analysis of this case misses the mark by failing to acknowledge that workers\u2019 compensation cases involving the going-and-coming rule, both before and after the passage of Act 796 of 1993, have been analyzed in the light of whether an employee was acting at the direction of his or her employer. Simply put, when a claimant is doing something that is generally required by his or her employer, the claimant is providing employment services. Ray v. Univ. of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999). See also Linton v. Arkansas Dep\u2019t of Correction, 87 Ark. App. 263, 190 S.W.3d 275 (2004); Shults v. Pulaski County Special Sch. Dist., 63 Ark. App. 171, 976 S.W.2d 399 (1998). The phrase \u201cperforming employment services\u201d is synonymous with the phrase \u201cacting within the course of employment,\u201d in that the test for determining both is whether the injury occurred \u201cwithin the time boundaries of employment, when the employee [was] carrying out the employer\u2019s purpose or advancing the employer\u2019s interests directly or indirectly.\u201d Collins v. Excel Spec. Prods., 347 Ark. 811, 69 S.W.3d 14 (2002).\nI disagree with the Commission\u2019s finding that it could not be said that the employee\u2019s travel to a tract of land where new work would begin, which location was not familiar to the employees, advanced the employer\u2019s purpose or interest any more than any other day when the employees travel to a tract where timber was cut. As the majority notes, Billingsley admitted that having his employees meet him at the gas station benefitted his company and insured that he could successfully conduct his business on the day at issue. Moncus was placed on the highway at his employer\u2019s direction, dutifully following the employer from Nashville to an unknown location near Hope to learn where he was to cut logs that morning.\nThe majority repeatedly notes that Moncus was driving his own vehicle at the time of his fatal accident, apparently to make it clear that Moncus\u2019s accident did not fall within the employer-provided-transportation exception to the going-and-coming rule. It seems to be the position of the majority that the employees who advanced Billingsley\u2019s interests by going to the unknown logging site in Billingsley\u2019s trucks would have been afforded workers\u2019 compensation protection, while employees, like Moncus, who advanced Billingsley\u2019s interests by following Billingsley to the unknown work site in their private vehicles would not have been afforded workers\u2019 compensation protection. In my opinion, this approach makes the controlling issue the manner in which an employee carried out his advancement of the employer\u2019s interests, instead of whether the employee was performing employment services at the time of his or her accident.\nThe majority also emphasizes that Moncus was not engaged in log cutting, and therefore was not being paid, at the time of his fatal accident. The majority ignores well-established precedent that employment, for workers\u2019 compensation purposes, is not limited to the task that a person was hired to do. Whatever the normal course of employment may be, the course of employment may be enlarged when the employer assigns tasks outside the usual scope of employment. Bell v. Tri-Lakes Servs., 76 Ark. App. 42, 61 S.W.3d 867 (2001). The fact that an employee is not compensated during travel is not dispositive in determining whether employment services are being performed; however, whether an employee requires an employee to do something may be dispositive of whether the activity constituted employment services. Id. See also Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997); Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001); Ray v. Univ. of Arkansas, supra; Arkansas Dep\u2019t of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991).\nI would hold that Moncus, even though traveling in his own vehicle so that he could leave early in the afternoon, was carrying out his employer\u2019s purpose and directly advancing the employer\u2019s interests by following him to the new job site in the morning. I would hold that Moncus was performing employment services and, thus, that his claim was not precluded by the going-and-coming rule.\nI would reverse the denial of benefits in this workers\u2019 compensation claim. Therefore, I respectfully dissent.\nBillingsley Logging is a sole proprietorship owned by Mitchell Billingsley. Billings-ley Logging and Mitchell Billingsley will be referred to interchangeably throughout this dissenting opinion simply as Billingsley.", "type": "dissent", "author": "Sam Bird, Judge," } ], "attorneys": [ "Hart Law Firm, L.L.P., by: Neal W. Hart, for appellant.", "Michael E. Ryburn, for appellee." ], "corrections": "", "head_matter": "Tony MONCUS, Deceased v. BILLINGSLEY LOGGING and American Interstate Insurance Company\nCA 05-264\n219 S.W.3d 680\nCourt of Appeals of Arkansas\nOpinion delivered December 7, 2005\nHart Law Firm, L.L.P., by: Neal W. Hart, for appellant.\nMichael E. Ryburn, for appellee." }, "file_name": "0402-01", "first_page_order": 428, "last_page_order": 436 }