{"id":"alj-H304951-2024-10-02","awcc_number":"H304951","decision_date":"2024-10-02","opinion_type":"alj","claimant_name":"Robert Herdison","employer_name":"Drivers Select, Inc","title":"HERDISON VS. DRIVERS SELECT, INC. AWCC# H304951 October 02, 2024","outcome":"denied","outcome_keywords":["granted:1","denied:4"],"injury_keywords":["cervical","thoracic","lumbar","neck","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/HERDISON_ROBERT_H304951_20241002.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HERDISON_ROBERT_H304951_20241002.pdf","text_length":14342,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H304951 \n \nROBERT HERDISON, Employee CLAIMANT \n \nDRIVERS SELECT, INC., Employer RESPONDENT \n \nSEDWICK CLAIMS MANAGEMENT, Carrier RESPONDENT \n \n \n \n OPINION FILED OCTOBER 2, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On July  25,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on April 29, 2024, and a Pre-hearing Order \nwas filed on April 30, 2024.   A copy of the Pre-hearing Order has been  marked Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on June 22, \n2023. \n 3. The respondents have controverted the claim in its entirety. \n\nHerdison – H304951 \n \n-2- \n 4. The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $371.00 for temporary total disability benefits and $278.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to his cervical, thoracic, and lumbar \nspine on or about June 22, 2023. \n 2.  Whether  Claimant  is  entitled  to  medical  treatment  for  his  compensable  cervical, \nthoracic, and lumbar spine injuries. \n 3. Whether Claimant is entitled to temporary total disability benefits from June 23, 2024, \nto a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“On  or  about  6/22/2023,  the  claimant  was  involved  in  a  motor \nvehicle  accident  in  the  scope  and  course  of  employment.  As  a \nresult  of  the  accident,  the  claimant  sustained  injuries  to  multiple \nbody  parts,  including  his  head,  neck,  back,  left  leg,  left  foot  and \nright  arm.  Respondents  denied  the  claim  in its entirety.  The \nClaimant  sought  treatment  on  his  own.  An  MRI  to  the  thoracic \nspine  revealed  disk  protrusions  to  T8,  9,  and  10.  And  MRI  to  the \nlumbar spine revealed protrusions at L3-4 and L4-5. An MRI to the \ncervical spine revealed bulging at C4-5 and C5-6 and a protrusion \nat   C6-7.   As   a   result,   claimant   underwent   a   cervical   spine \ndiskectomy  and  fusion  surgery  from  C5  to  C7  on  November  18, \n2023. \n \nClaimant  contends  that  he  sustained  compensable  injuries  to  his \nneck and back in the scope and course of employment and that he \nis  entitled  to  TTD,  medical  benefits,  and  that  his  attorney  is \nentitled to an attorney fee. All other issues are reserved.” \n \n The respondents’ contentions are as follows: \n\nHerdison – H304951 \n \n-3- \n“Respondents   contend   that   the   claimant   was   not   performing \nemployment  services  at  the  time  of  his  injury  on  June  22,  2023. \nThe claimant had completed his job responsibilities for the day and \nwas  no  longer  driving  for  Drivers  Select,  he  was  not  performing \nemployment services, and he was not earning wages when he was \nthe  passenger  in  a  co-worker’s  vehicle  that  was  involved  in  a \nmotor vehicle accident.” \n \n The  claimant  in  this  matter  is  a 53-year-old  male who  alleges  to  have  sustained \ncompensable injuries to his cervical, thoracic, and lumbar spine on or about June 22, 2023. The \nclaimant  has  also  requested  medical  treatment  for  those  injuries as  well  as temporary  total \ndisability benefits. However, upon my review of the evidence in this matter, it is certain that the \ncentral issue is compensability of those alleged injuries. More specifically, whether the claimant \nwas  performing  employment  services  at  the  time  of  a  June  22,  2023,  motor  vehicle  accident in \nwhich  the  claimant  was  involved.  The  respondent/employer  in  this  matter  is  somewhat  of  a \nunique type of employer, in that the respondent/employer is much like a temporary employment \nagency but deals specifically with the moving of semi tractor trailers. The respondent’s business \nmodel  is  to  bid  on  jobs  to  move  semi  tractor  trailers  from  one  location  to  another.  They  use \ntemporary  employees  as  their  labor  source.  These  movements  of  semi  tractor  trailers  could  be \nacross the country movements or just movements from 10 to 80 miles. \n The  claimant  in  this  matter  gave  testimony  about  his  employment  with  the  respondent \nwhich began roughly one month before his June 22, 2023, motor vehicle accident. The claimant \nwas  asked  on  direct  examination  about  the  job  he  had  accepted  with  the respondent before  the \njob  in  which  he  alleges  to  have  sustained  a  compensable  injury  on  June  22,  2023.  That  job \nrequired the claimant  and several other  employees to go to Colorado Springs, Colorado.  In that \njob  the  claimant  and  other  employees  were  transported  to  Mobile,  Alabama.  At  that  point  they \npicked  up  and  drove  several  semi  tractor  trailers  to  Colorado  Springs,  Colorado.  When  they \n\nHerdison – H304951 \n \n-4- \nreached  their  destination  some  of  the  men,  including  the  claimant,  drove  semi  tractor  trailers \nback to Mobile, Alabama. At that point the claimant got into a “chase car” that brought him back \nto  Arkansas.  It  appears  from  testimony  that  a  chase  car  is  used  to  move  the  semi  tractor  trailer \ndrivers  between  locations  when  needed.  The  claimant concluded this  engagement  with the \nrespondent without any incident. \n It is the claimant’s next employment with the respondent that he alleges to have sustained \ncompensable injuries to his cervical, thoracic and lumbar spine. \n On  that  day  the  claimant  was  contacted  by  Abigail  Robertson,  who  is  the  driver \ndispatcher  manager  for  the  respondent  and  has  been  since  December  2020.  Abigail  Robertson \ngoes by the name of Abby, and I will refer to her as such. On June 22, 2023, Abby contacted the \nclaimant  and  at  least  one  other  temporary  employee  to  provide  employment  services  to  move \nsemi  tractor  trailers  from  Van  Buren  to  Rogers,  Arkansas.  However,  after  her  initial  contact  to \nthe temporary employees including the claimant a change in the job status had occurred. Initially, \nthere  was  a  need  for  a  chase  car;  however,  the  new  instructions  did  not  include  that  chase  car \nneed. Abby testified that she was unable to reach the temporary employees before they arrived at \nthe  respondent’s  Fort  Smith  office.  However, after they  arrived,  they  were  informed  of the \nchange. The respondent informed them that there would be no need for a chase car and that they \nshould  go  to  a  well-known  place  in  Van  Buren  called  MHC  to  pick  up  the  semi  tractor  trailers \nand move them to Rogers. At which point, a second vehicle would retrieve them and take them \nto a location in Springdale to pick up a semi tractor trailer and return it to their starting point in \nVan Buren known as MHC. \n The  claimant  had  issue  with  this  new  development  in  that  he  was  lacking  in  gasoline  in \nhis personal vehicle in order to get to the job site in Van Buren to pick up the semi tractor trailer \n\nHerdison – H304951 \n \n-5- \nand  begin  the  job.  The  respondent  did  specifically  recommend  that  he  ride  with  another \ntemporary employee named Jody, who was assigned to the same job. I note that throughout the \ncourse  of  testimony  Jody  is  identified  no  further  than  Jody.  The  claimant  associated  or  named \nhim as Joe; however, according to the respondent his name was Jody. No one at the time of the \nhearing  was  aware  of  his  last  name.  Apparently,  Jody  agreed  to  give  the  claimant  a  ride  to  the \nVan Buren MHC facility to pick up the semi tractor trailers and as such begin working that day. \nAs previously stated, the men completed the run and returned to the MHC facility in Van Buren. \nAt that time, they sent photos via text message to the respondent to show the arrival of the semi \ntractor  trailers.  However,  the  claimant  still  needed  to  return  to  his  gasoline  deficient  personal \nautomobile.  It  is  during  that  return  that  the  claimant  and  Jody,  who  gave  him  a  ride,  were \ninvolved in a motor vehicle accident in which they were hit by another driver from behind in a \nseparate vehicle. \n The central question is whether the claimant was performing employment services at the \ntime of his motor vehicle accident. \nA compensable injury is defined, in part, as an accidental injury which arises out of an in \nthe course of employment. A.C.A.§ 11-9-102(4)(A)(I). However, a compensable injury does not \ninclude an injury “inflicted upon the employee at a time when employment services were not \nbeing  performed.”  A.C.A.  §11-9-102(4)(B)(iii).   An   employee   is   performing   employment \nservices  when  they  are  doing  something  that  is  generally  required  by  his  or  her  employer. \nContinental Construction Co. v. Nabors, 2015 Ark. App. 60, 454 S.W.3d 762; White v. Georgia-\nPacific Corp., 339 Ark. 474, 478, 6 S.W.3d 98, 100 (1999). The same test is used to determine \nwhether  an  employee  is  performing  employment  services  as  is  used  when  determining  whether \nan employee is acting within the course and scope of employment. The test is whether the injury \n\nHerdison – H304951 \n \n-6- \noccurred  within  the  time  and  space  boundaries  of  the  employment,  when  the  employee  was \ncarrying  out  the  employer’s  purpose  or  advancing  the  employer’s  interest  either  directly  or \nindirectly. Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W.3d 1 (2002). \n The  Arkansas  Court  of  Appeals  determined  in Linton v. Ark. Dep’t of Corrections,  87 \nArk  App.  263,  190  S.W. 3d  275  (2004)  that  an  employee  who  was  injured  while  traveling  to  a \nrequired meeting at a normal place of work on the claimant’s day off was properly denied \nworkers’ compensation benefits. The Court stated, “merely traveling to and from the workplace \nwas not a covered activity under the workers’ compensation statutes.” \n In  the  present  matter  it  is  clear  that  the  claimant  was  traveling  to  retrieve  his  personal \nvehicle  that  he  would  have  driven  to  the  Van  Buren  MHC  location  had  he  not  been  unable  to \nbecause of a lack of gasoline in his personal vehicle. \n The claimant did provide testimony that it was his belief that he had to return to the Fort \nSmith office of the respondent to complete his work duties. I note that this is the same location \nthat the claimant’s personal vehicle was located with a lack of gasoline. Testimony provided by \nboth Jennifer Powell, the respondent’s assistant manager of operations, who also  served  as  the \nhuman  resources  manager,  along  with  Abby,  the  driver  dispatch  manager,  showed  the  claimant \nhad no reason to return to the Fort Smith office of the respondent. It was pointed out that the job \nof the claimant was a bid job and that no timesheets were required to be completed. Essentially \nthe claimant’s job was completed when he sent the photographs of the truck being returned to the \nMHC facility to the respondent.  \n Given the testimony and evidence before the Commission I find that the claimant was not \nperforming  employment  services  at  the  time  of  his  June  22,  2023,  motor  vehicle  accident,  but \nwas instead retrieving his personal vehicle that  was low on gasoline. Given that the claimant is \n\nHerdison – H304951 \n \n-7- \nunable  to  prove  that  he  was  providing  employment  services  at  the  time  of  the  motor  vehicle \naccident,  the  claimant  is  unable  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained \ncompensable  injuries  to  his  cervical,  thoracic  and  lumbar  spine  as  he  has  alleged  on  June  22, \n2023, in a motor vehicle accident. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nApril 29, 2024, and contained in a Pre-hearing Order filed April 30, 2024, are hereby accepted as \nfact. \n 2. The claimant has failed to prove by a preponderance of the evidence that he sustained \ncompensable injuries to his cervical, thoracic and lumbar spine on or about June 22, 2023. \n 3. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto medical treatment for his alleged compensable cervical, thoracic and lumbar spine injuries. \n 4. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto temporary total disability benefits from June 23, 2023, to a date yet to be determined. \n 5. The claimant has failed to prove by a preponderance of the evidence that his attorney is \nentitled to an attorney’s fee in this matter. \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \n\nHerdison – H304951 \n \n-8- \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H304951 ROBERT HERDISON, Employee CLAIMANT DRIVERS SELECT, INC., Employer RESPONDENT SEDWICK CLAIMS MANAGEMENT, Carrier RESPONDENT OPINION FILED OCTOBER 2, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas....","fetched_at":"2026-05-19T22:47:07.801Z","links":{"html":"/opinions/alj-H304951-2024-10-02","pdf":"https://labor.arkansas.gov/wp-content/uploads/HERDISON_ROBERT_H304951_20241002.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}