{"id":"alj-H305182-2024-08-12","awcc_number":"H305182","decision_date":"2024-08-12","opinion_type":"alj","claimant_name":"Andrea Ewton","employer_name":"Dardanelle Public Schools","title":"EWTON VS. DARDANELLE PUBLIC SCHOOLS AWCC# H305182 August 12, 2024","outcome":"denied","outcome_keywords":["dismissed:1","denied:2"],"injury_keywords":["knee","ankle","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/EWTON_ANDREA_H305182_20240812.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EWTON_ANDREA_H305182_20240812.pdf","text_length":15503,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H305182 \n \nANDREA EWTON, Employee                                                                        CLAIMANT                               \n \nDARDANELLE PUBLIC SCHOOLS, Employer                                       RESPONDENT                                                   \n \nARKANSAS SCHOOL BOARDS ASSOCIATION WCT, Carrier             RESPONDENT                                                                                       \n \n \n \n OPINION FILED AUGUST 12, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   GREGORY   K.   STEWART   in \nRussellville, Pope County, Arkansas. \n \nClaimant represented by ANDY L. CALDWELL, Attorney, Little Rock, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 1, 2024, the above captioned claim came on for hearing at Russellville, \nArkansas.  A pre-hearing conference was conducted on May 29, 2024 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #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 the \nwithin claim. \n 2.     The  employee/employer/carrier  relationship  existed  among  the  parties  on \nAugust 15, 2023. \n 3.   Claimant was earning an average weekly wage of $132.64 which would entitle \nher to compensation at the rate of $88.00 per week. \n\nEwton – H305182 \n \n 2 \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Compensability of injury to claimant’s left knee and right ankle on August 15,  \n2023. \n 2.    Related medical. \n 3.    Temporary total disability benefits from August 16, 2023 through a date yet to \nbe determined. \n 4.   Attorney’s fee. \n At the time of the hearing claimant clarified that she is requesting temporary total \ndisability benefits beginning August 16, 2023 and continuing through June 22, 2024. \n The claimant contends she sustained injuries to her right ankle and left knee in the \ncourse and scope of her employment which resulted in the need for treatment beginning \non  or  about  August  15,  2023.    Respondents  have  controverted  the  claim.    Claimant \ncontends she is entitled to temporary total disability from August 16, 2023 through June \n22,  2024, reasonable and necessary medical treatment, and attorney’s fees.  All other \nissues are reserved. \n The  respondents  contend that  claimant  did  not  suffer  a  compensable  injury  on \nAugust 15,  2023.   She  was  not  in the  course  and  scope  of  her  employment  when  she \ninjured her left knee and right ankle. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nEwton – H305182 \n \n3 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non May 29, 2024 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.       Claimant  has failed  to  prove  by  a  preponderance  of  the  evidence  that  she \nsuffered  a  compensable injury  to  her  left  knee  and  right  ankle  on  August  15,  2023.  \nSpecifically, claimant was not performing “employment services” at the time of her injury. \n \n \n FACTUAL BACKGROUND \n The claimant is a 41-year-old woman who periodically worked for respondent as a \nsubstitute  custodian at  multiple  school  buildings  in  Dardanelle.    On  August  14,  2023 \nclaimant was contacted by Rebecca (“Becca”) Manatt to work the next day.    \n Claimant testified that on August 15, 2023, she reported for work at respondent’s \nCentral Office where she talked to Susie Howell, received keys, and did some cleaning \nat the Central Office building.  Claimant then drove to the Intermediate School office to fill \nout a time sheet and get keys for the gym and a tech lab building.  Claimant testified that \nshe  received  the  keys  from  Manatt  and  then  drove  her  car  across  campus  to  those \nbuildings.  She then testified as follows: \n  Q And what did you do once you parked? \n \n  A Once I parked, I got to - - I went up to the gym to see if \n  anybody was in there to let me in and there wasn’t because I \n  didn’t have the right set of keys. \n \n  Q So then what did you do? \n \n\nEwton – H305182 \n \n4 \n \n  A I went back to my car to get my bottle of water and get \n  the other set of keys that I needed to go start the agra building \n  and the electronics building. \n \n  Q So did you make it to your car? \n \n  A No, sir, I did not.  I stepped off of the sidewalk and \n  twisted my ankle and broke it. \n \n \n Claimant then got back in her car and drove to the Intermediate School office to \nreport  the  injury.    In  the  office  claimant  was  seen  by  April  McGuire,  the  school  nurse.  \nMcGuire  gave  claimant  workers’ compensation paperwork  to  complete and  they  called \nMisty Thompson, claim supervisor at the Arkansas School Boards Association, to report \nthe injury.   \n During that conversation Thompson informed claimant that respondent would not \naccept the claim as compensable and that any treatment would be at her expense. \n Claimant has filed this claim contending that she suffered a compensable injury to \nher left knee and right ankle on August 15, 2023.  She seeks payment of related medical \ntreatment as well as temporary total disability benefits, and a controverted attorney fee. \n \n \nADJUDICATION \n \n Claimant contends  that  she  suffered  a compensable  injury  to  her  left  knee  and \nright ankle when she stepped off a curb while working for respondent on August 15, 2023.  \nClaimant’s claim is for a specific injury.   In  order  to  prove  a  compensable  injury  as  the \nresult of a specific incident that is identifiable by time and place of occurrence, a claimant \nmust establish by a preponderance of the evidence (1) an injury arising out of and in the \ncourse of employment; (2) the injury caused internal or external harm to the body which \n\nEwton – H305182 \n \n5 \n \nrequired  medical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported by objective findings establishing an injury; and (4) the injury was caused by a \nspecific incident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, \n2011 Ark. App. 450, 384 S.W. 3d 630. \n A  compensable  injury  does  not  include  an “injury  which  was  inflicted  upon  the \nemployee at a time when employment services were not being performed.”  A.C.A. §11-\n9-102(4)(B)(iii).    An  employee  is  performing  employment  services  when  she  is  doing \nsomething generally required by her employer.  White v. Georgia-Pacific Corporation, 339 \nArk. 474, 6 S.W. 3d 98 (1999).  The same test is used to determine whether an employee \nis performing employment services as is used when determining whether an employee \nwas acting in the course and scope of employment.  Pifer v. Single Source Transportation, \n347 Ark. 851, 69 S.W. 3d 1 (2002).  The test is whether the injury occurred within the time \nand  space  boundaries  of  the  employment  when  the  employee  was  carrying  out  the \nemployer’s purpose or advancing the employer’s interest, either directly or indirectly.  Id.   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to prove by a preponderance of \nthe evidence that she suffered a compensable injury to her left knee and right ankle on \nAugust  15,  2023.    Specifically,  I  find  that  claimant  was  not  performing  employment \nservices at the time of her injury. \n Claimant  testified  at  the  hearing  that  she  was  returning  to  her  car  when  she \nstepped off the curb and twisted her ankle in order to get a set of keys.  Clearly, this would \nconstitute the performance of employment services.  However, I do not find this testimony \nto be credible.   \n\nEwton – H305182 \n \n6 \n \n First, I note that claimant testified at her deposition that when she initially went to \nthe Intermediate Office she received keys to the gym and tech lab from April McGuire, \nthe  school  nurse.    However,  testimony  from  McGuire  and  Mannatt  established  that \nMcGuire does not have any keys to respondent’s buildings other than the keys to her own \noffice.  Even claimant at the time of the hearing had changed her testimony to indicate \nthat she had received the keys from Mannatt. \n Furthermore,  immediately  after  this  accident,  claimant  did  not  give  a  history  of \ngoing to her car to obtain keys to a building, but instead indicated that she was going to \nher car to get her own personal drink.  As previously noted, immediately after this accident \nclaimant  returned  to  the  Intermediate  School office  to  report  the  injury  where  she  was \nseen  by  April  McGuire,  respondent’s  school  nurse.    McGuire  testified  that  claimant \nindicated that she was walking to her car to get a drink. \n  Q Did she tell you what she was doing at the time of \n  the fall? \n \n  A If I remember correctly, she told us that she had been \n  walking out to her car to get a drink and slipped off the curb. \n \n  Q Did she mention anything at all about going to her car \n  to get a set of keys? \n \n  A No, ma’am. \n \n Furthermore,  as  previously  noted,  McGuire  telephoned  Misty  Thompson,  the \nworkers’ compensation claims supervisor, to report the injury.  Thompson also testified \nthat  claimant  indicated  that  she  was  going  to  her  car  to  get  a  drink  and  that  no  other \npurpose was mentioned. \n  Q What did Mrs. Ewton tell you she was doing at the \n\nEwton – H305182 \n \n7 \n \n  time of the fall? \n \n  A She was going back to her vehicle to get a drink. \n \n  Q Did she mention anything else that she would have \n  been doing as far as why she was going back to her car? \n \n  A No.  And can I reference that? \n \n  Q Yes. \n \n  A And I do recall when I went back and looked when this \n  was going into litigation to verify if she was going out there \n  for any other purpose or if that was her sole purpose for  \n  going back out to the vehicle was to get the drink. \n \n  Q You even asked her, “Was there any other purpose for \n  you going back to your car?”  What was her response? \n \n  A Her response was, “No.” \n \n \n Claimant’s statement that she was going to her car to get a drink is further reflected \nin  the recorded statement which was submitted into evidence by the respondent.  That \nstatement contains the following: \n  Q And how were you injured, or what happened? \n \n  A I stepped off a curb and twisted my ankle and fell in \n  the parking lot. \n \n  Q And what were you doing at that time, I mean like \n  taking trash out, going to another building? \n \n  A I was getting ready.  I was going to my car to get \n  something to drink that I had left in there, and when I \n  stepped off of the curb I twisted my ankle and its all \n  swollen. \n \n      *** \n \n  A Yes. \n \n\nEwton – H305182 \n \n8 \n \n  Q And it was to get a drink for yourself? \n \n  A Yes. \n \n  Q Okay.  And that was something you had left in your \n  car? \n \n  A Yes, and I was going back out, I was going to go back \n  in after I got my drink, but then I -  \n \n  Q Okay. \n \n  A - couldn’t make it back in because I fell and messed up \n  my ankle. \n \n  Q Was there any other purpose for you going out there,  \n  other than to get your drink? \n \n  A No, ma’am. \n \n \n Perhaps  the most  damaging evidence with regard  to  claimant’s  credibility  is  her \napplication  for  unemployment  insurance  benefits  on  April  22,  2024.    At  the  hearing \nclaimant testified that she had not worked since the date of the accident on April 15, 2023.  \n  Q Have you been back to work since the date of \n  this incident? \n \n  A No, sir. \n \n \n First, I note that claimant initially filed for unemployment compensation benefits on \nSeptember 12, 2023, and when listing her last employer did not list the respondent but \ninstead listed Northport Health Services of Arkansas with her last date of work as August \n15, 2023.  According to this claim, claimant was working for respondent on August 15, \n2023.   More  importantly,  claimant  refiled  for  unemployment  compensation  benefits  on \nApril 22, 2024.  Despite testifying that she had not worked since August 15, 2023, claimant \n\nEwton – H305182 \n \n9 \n \nlisted her last employer as Dardanelle Nursing & Rehab.  Claimant indicated that she was \nworking fulltime for that employer and that her first day to work for Dardanelle Nursing \nwas October 5, 2023, and her last date of work was February 22, 2024.  Claimant was \nsubsequently  disqualified  for unemployment  compensation  benefits  for  making  false \nstatements or  misrepresenting a material  fact  on  her application.   Documentation  from \nthe Division of Work Force Services submitted on Page 13 of Respondent’s Exhibit #1 \nindicates  that  there  was  some  discrepancy  between  claimant  and  Dardanelle  Nursing \nregarding her employment and her missing work for that employer.  The relevant evidence \nin  this  case  is  that despite  claimant’s  testimony  that  she  did  not  work  after  August  15, \n2023, the claimant did in fact return to work for another employer. \n Based upon the foregoing, I do not find claimant’s testimony that she was going to \nher car to get keys to be credible.  Instead, I find that claimant was returning to her car in \norder to get her own personal drink.  The Commission is bound to examine the activity \nthe  claimant  was  engaged  in  at  the  time of  the  accident  in  determining  whether or  not \nthey were performing employment services.  Texarkana School District v. Conner, 383 \nArk. 372, 284 S.W. 3d 57 (2008); Javan v. Econ. Inn & Suites, 370 Ark. 414, 260 S.W. 3d \n281 (2007).  \n Here,  the  activity claimant  was  engaged  in  at  the  time  of  her  accident  was  not \ngoing to her car to get keys in to a building to clean, but instead was her going to her car \nto get her own personal drink.  While claimant may have been on the clock at the time \nshe was engaging in that activity, claimant was not carrying out the employer’s purpose \nor advancing the employer’s interest either directly or indirectly.  Therefore, she was not \nperforming  employment  services  at  the  time  of  her  accident  and  her  injury  is  not \n\nEwton – H305182 \n \n10 \n \ncompensable under Arkansas workers’ compensation law. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that she suffered \na compensable injury to her left knee and right ankle while employed by respondent on \nAugust 15, 2023.  Claimant was not performing employment services at the time of her \naccident.  Therefore, her claim for compensation benefits is hereby denied and dismissed. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $528.10. \n IT IS SO ORDERED. \n \n     __________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305182 ANDREA EWTON, Employee CLAIMANT DARDANELLE PUBLIC SCHOOLS, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION WCT, Carrier RESPONDENT OPINION FILED AUGUST 12, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Russellville, Pope ...","fetched_at":"2026-05-19T22:50:00.595Z","links":{"html":"/opinions/alj-H305182-2024-08-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/EWTON_ANDREA_H305182_20240812.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}