Cite as 2013 Ark. App. 469

ARKANSAS COURT OF APPEALS

DIVISION IV

No. CV-13-143

CECIL B. SHELTON

APPELLANT

V.

QUALSERV AND AMERICAN

CASUALTY COMPANY

APPELLEES

Opinion Delivered September 4, 2013

APPEAL FROM THE ARKANSAS

WORKERS’ COMPENSATION

COMMISSION

[NO. G105497]

AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Cecil B. Shelton appeals the decision of the Arkansas Workers’

Compensation Commission denying his claim for benefits associated with an injury he

received during his employment with appellee Qualserv. The Commission found that

Shelton had failed to prove a compensable injury because he was not performing

employment services at the time of his accident. We affirm.

I. Facts

Shelton, a fifteen-year employee of Qualserv, slipped and fell on some ice in the

Qualserv parking lot and suffered a rotator-cuff tear to his left shoulder, which ultimately

required surgery. The accident occurred midway through Shelton’s thirty-minute lunch

break while returning his lunch box to his car. At the time of the accident, Shelton was not

being paid. He had not clocked out, as employees were not required to clock in or out

during lunch breaks unless they left the Qualserv premises. However, he was not allowed
Cite as 2013 Ark. App. 469

to work by company policy. Qualserv did not require that he return his lunch box to his car. 

Shelton admits that he could leave his lunch box in the break room, but he placed it in his

car so he would not have to retrieve it before he went home. At the time of the accident,

he was following his normal routine, whereby he would eat his lunch, return his lunch box

to his car, and then “rest for a bit” before returning to work. If the weather was nice, he

rested outside; otherwise, he rested in the break room. He stated that his injury occurred

while he was walking to his car.

Qualserv denied the compensability of the injury. The administrative law judge (ALJ)

determined that Shelton had sustained a compensable left-shoulder injury and granted

benefits. Qualserv appealed.

The Commission reversed the decision of the ALJ and denied benefits, finding that

Shelton was not performing any activity required by his employer at the time of his injury

and that his employer did not glean any benefit from Shelton’s activity. Thus, the injury did

not occur within the time and space boundaries of his employment and was not

compensable. Shelton filed a timely appeal of the Commission’s determination of

noncompensability.

II. Standard of Review

Our standard of review for workers’ compensation claims is clear. We view the

evidence in the light most favorable to the Commission’s decision and affirm the decision if

it is supported by substantial evidence. Hudak-Lee v. Baxter Cnty. Reg’l Hosp., 2011 Ark. 31,

378 S.W.3d 77. Substantial evidence is evidence that a reasonable mind might accept as

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adequate to support a conclusion. Id. Substantial evidence is “evidence that is of sufficient

force and character that it will, with reasonable and material certainty and precision, compel

a conclusion one way or the other.” Aluminum Co. of Am. v. McClendon, 259 Ark. 675, 687,

535 S.W.2d 832, 838 (1976). On review, 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’s conclusion, we must affirm its decision. St.

Joseph’s Mercy Med. Ctr. v. Redmond, 2012 Ark. App. 7, 388 S.W.3d 45. The Commission

is required to weigh the evidence impartially without giving the benefit of the doubt to any

party. Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992).

III. Analysis

The sole issue on appeal is whether there was substantial evidence supporting the

Commission’s conclusion that Shelton was not performing employment services at the time

of his injury. In order for an accidental injury to be compensable, it must arise out of and

in the course of employment. Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2012). A

compensable injury does not include an injury that is inflicted upon the employee at a time

when employment services are not being performed. Ark. Code Ann. § 11-9-102(4)(B)(iii).

The phrase “in the course of employment” and the term “employment services” are not

defined in the Workers’ Compensation Act. Texarkana Sch. Dist. v. Conner, 373 Ark. 372,

284 S.W.3d 57 (2008). Thus, it falls to the court to define these terms in a manner that

neither broadens nor narrows the scope of the Act. Id.

An employee is performing employment services when he or she is doing something

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that is generally required by his or her employer. Id.; Pifer v. Single Source Transp., 347 Ark.

851, 69 S.W.3d 1 (2002). We use the same test to determine whether an employee is

performing employment services as we do when determining whether an employee is acting

within the course and scope of employment. Jivan v. Econ. Inn & Suites, 370 Ark. 414, 260

S.W.3d 281 (2007). The 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. In Conner, supra, we stated

that, where it was clear that the injury occurred outside the time and space boundaries of

employment, the critical inquiry is whether the interests of the employer were being directly

or indirectly advanced by the employee at the time of the injury. Moreover, the issue of

whether an employee was performing employment services within the course of employment

depends on the particular facts and circumstances of each case. Id.

Shelton asserts that, because he had remained on the work premises during his lunch

hour and was returning to work at the time of the injury, he was within the time and space

boundaries of his employment and was clearly advancing the interests of Qualserv. As such,

the Commission’s determination that he was not performing employment services at the time

of his injury was erroneous. Our supreme court has previously recognized 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. Hudak-Lee,

supra (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

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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); Conner, supra (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).

Those cases, however, are distinguishable from the case at bar. Here, Shelton was on

his lunch break when the injury occurred. He was not required to stay on premises during

his break, and he was not expected to perform any job-related duties during that time. 

Although he was not required to clock out if he stayed on premises, he did not receive any

compensation for the time he was on break. At the time of the fall, his break was only half

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over and he was returning to his car to deposit his lunch box. He did not intend to

immediately return to work. Rather, Shelton testified that it was his normal practice (which

he was following that day) to deposit his lunch box in his car and then rest—either in the

break room or outside depending on the weather—until his break was over. Qualserv

neither directly nor indirectly benefited from Shelton’s actions. Shelton’s actions were for

his own convenience. Substantial evidence supports the Commission’s finding that Shelton’s

shoulder injury did not occur within the time and space boundaries of his employment and,

thus, was not compensable. 

Affirmed.

VAUGHT and HIXSON, JJ., agree.

Michael Hamby, P.A., by: Michael Hamby, for appellant.

The Barber Law Firm, by: Frank Newell and T. Kent Smith, for appellees.

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