{"id":"alj-H400463-2024-08-02","awcc_number":"H400463","decision_date":"2024-08-02","opinion_type":"alj","claimant_name":"Jimmy Bruce","employer_name":null,"title":"BRUCE VS. CITY OF MARMADUKEAWCC# H400463August 2, 2024","outcome":"dismissed","outcome_keywords":["dismissed:1","granted:1","denied:1"],"injury_keywords":["ankle","fracture","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Bruce_Jimmy_H400463_20240802.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bruce_Jimmy_H400463_20240802.pdf","text_length":22527,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H400463 \n \n \nJIMMY D. BRUCE, EMPLOYEE CLAIMANT \n \nCITY OF MARMADUKE, \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. MUN. LEAGUE, \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED AUGUST 2, 2024 \n \nHearing  before Chief Administrative  Law  O.  Milton  Fine  II  on June  21,  2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented by Mr. Scott Hunter, Jr., Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by Ms. Mary K. Edwards, Attorney at Law, North Little Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On June   21,   2024,   the   above-captioned   claim   was   heard   in Jonesboro, \nArkansas.  A pre-hearing conference took place on April 1, 2024.  The Prehearing Order \nentered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection  as \nCommission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations  and \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit  1.    With  the  amendment  of Stipulation  No.  4,  they  are  the  following,  which  I \naccept: \n\nBRUCE – H400463 \n \n2 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The  employee/self-insured  employer/third-party  administrator  relationship \nexisted  among  the  parties  on  January  14,  2024,  and  at  all  other  relevant \ntimes. \n3. Respondents have controverted this claim in its entirety. \n4. Claimant’s average weekly wage of $256.00 entitles him to compensation \nrates of $171.00/$154.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.   After  an  amendment  of  Issue  No.  1  to  correct  a  typographical  error,  the  following \nwere litigated: \n1. Whether  Claimant  sustained  a  compensable  injury  to  his  right lower \nextremity by specific incident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \n\nBRUCE – H400463 \n \n3 \nContentions \n The respective contentions of the parties are as follows: \n Claimant: \n1. Claimant  contends  that he  was  in  the  process  of  transferring  his  medical \nbag,  clipboard,  and  body  armor  into  his  personal  vehicle  before  going \ninside  to  download  his  body  camera  footage  and  file  end-of-the-day \npaperwork when he slipped on ice, falling and breaking his right fibula. \nRespondents: \n1. Respondents contend that Claimant cannot prove by a preponderance of \nthe  evidence  that  he  sustained  a  compensable  injury  within  the  meaning \nof the Arkansas Workers’ Compensation Act.  On  January  14,  2024,  he \nhad clocked out of work, and while he was walking from the building to his \npersonal vehicle, he slipped and fell on ice. \n2. Respondents  contend  that  Claimant  was  not  performing  employment \nservices at the time the incident occurred. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \ndeposition  transcripts,  and  other  matters  properly  before  the  Commission,  and  having \nhad  an  opportunity  to  hear  the  testimony  of  the  witnesses  and  to  observe  their \ndemeanor,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n\nBRUCE – H400463 \n \n4 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  not  proven  by  a preponderance  of  the  evidence that  he \nsustained a  compensable  injury  to his right  lower  extremity by  specific \nincident. \n4. Because of the above finding, the remaining issues—whether Claimant is \nentitled  to  reasonable  and  necessary  medical  treatment,  temporary  total \ndisability benefits and a controverted attorney’s fee—are moot and will not \nbe addressed. \nCASE IN CHIEF \nSummary of Evidence \n The witnesses at the hearing were Claimant and Captain Scott Chambers. \n In  addition  to  the Prehearing Order  discussed  above,  admitted  into  evidence  in \nthis case were Claimant’s Exhibit 1, non-medical records, consisting of one index page \nand 12 numbered  pages  thereafter; Respondents’  Exhibit  1,  non-medical  records, \nconsisting of one index page and 17 numbered pages thereafter; Respondents’ Exhibit \n2, the  transcript  of  the  deposition  of  Claimant  taken  on  April  1,  2024, consisting  of 46 \nnumbered pages plus an eight-page index; and Respondents’ Exhibit 3, a thumb drive \ncontaining body cam footage of Claimant taken on January 14, 2024. \n\nBRUCE – H400463 \n \n5 \n In  addition,  I  have  blue-backed  to  the  record  the  post-hearing  letter  briefs  of \nClaimant  and  Respondents,  filed  on  July  12,  2024,  and consisting  of two  and  three \npages, respectively. \nAdjudication \nA. Compensability \n Introduction.  In this action, Claimant has alleged that he suffered a compensable \ninjury by specific incident to his right lower extremity on January 14, 2024, when he fell \nin the parking lot outside the entrance of his employer, the Police Department of the City \nof  Marmaduke.   Respondents,  in  turn,  have argued  that  at  the  time of  his fall,  he  was \nnot performing employment services–rendering said injury non-compensable. \n Discussion.  Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I \nfind applies to the analysis of Claimant’s alleged injury, defines “compensable injury”: \nAn accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of  employment  and  which  requires \nmedical services or results in disability or death.  An injury is “accidental” \nonly  if  it  is  caused  by  a  specific  incident  and  is  identifiable  by  time  and \nplace of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe element “arising out of . . . [the] employment” relates to the causal connection \nbetween the claimant’s injury and his employment.  City of El Dorado v. Sartor, 21 Ark. \nApp. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n\nBRUCE – H400463 \n \n6 \n“when a causal connection between work conditions and the injury is apparent to the \nrational mind.”  Id. \n If the party seeking to prove compensability fails to establish by a preponderance \nof  the  evidence any of  the  requirements  for  establishing  such,  compensation  must  be \ndenied.   Mikel  v.  Engineered  Specialty  Plastics,  56  Ark.  App.  126,  938  S.W.2d  876 \n(1997).    This  standard  means  the  evidence  having  greater  weight  or  convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., \n212 Ark. 491, 206 S.W.2d 442 (1947). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., \n72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief.  Id. \n In this case, the evidence shows that as a result of his January 14, 2024, fall in \nthe parking lot at the Marmaduke Police Department, Claimant suffered an injury to his \nright lower extremity.  As Respondents in their post-hearing brief point out, Claimant did \nnot offer into evidence a compilation of the medical records pertaining to the treatment \nthat  he  described  undergoing—including  placement  in  a  boot—in  connection  with  his \nalleged leg injury. \n\nBRUCE – H400463 \n \n7 \n But Respondents are incorrect in asserting that the evidence at bar is devoid of \nobjective findings.  The Marmaduke Fire/Rescue report of their response to Claimant’s \nfall, authored by Marcus Vowell, reads in pertinent part: \nCalled to city hall for ankle fx [fracture].  Pt fell on ice and thinks ankle is \nbroken.  Swelling noted[.]  Splint applied.  CMS intact[.] \n \n(Emphasis  added)   Captain  Scott  Chambers  of the  Marmaduke  Police  Department, \nClaimant’s supervisor, testified that Vowell “is a fireman and—he’s a volunteer fireman \nfor  the  fire  department  and  a  paramedic.    He  was  a  full-time paramedic.”  Vowell is a \nlicensed paramedic, according to Chambers.  I credit this testimony. \n The  report  by  the  paramedic  is  clearly  a  medical  record,  prepared  by  treating \npersonnel who dealt with Claimant in the aftermath of his fall, and contains an objective \nfinding in the form of swelling of the right lower extremity.  See Ellis v. J.D. & Billy Hines \nTrucking, Inc., 104 Ark. App. 118, 289 S.W.3d 497 (2008). \n The  incident  that  caused  the lower  extremity injury is  identifiable  by  time  and \nplace of occurrence:  Claimant’s slipping/falling on the snow-covered gravel parking lot \nof the police  department at  approximately 4:35 p.m.  on January  14,  2024.   Claimant’s \ntestimony  as  to  the time  and  location of  this  fall was  corroborated  by (1) Officer  C.J. \nIsom, whom  Claimant  telephoned  for  help  and whose  report thereon  was  written  that \nsame day and is part of the documentary evidence; and (2) the reports in evidence that \nare related to the ambulance that was dispatched to Claimant’s location.  Moreover, the \nlower  extremity  injury clearly caused  internal  or  external  physical  harm  to Claimant’s \nbody and required medical services. \n\nBRUCE – H400463 \n \n8 \n The  only  element  of  compensability  remaining  is  whether  the injury  at  issue \narose out of and in the course of Claimant’s employment; i.e., while he was performing \nemployment services for the City of Marmaduke.  In Hudak-Lee v. Baxter County Reg. \nHosp., 2011 Ark. 31, 378 S.W.3d 77, the Arkansas Supreme Court stated: \nIn  order  for  an  accidental  injury  to  be  compensable,  it  must  arise  out  of \nand  in  the  course  of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i) \n(Supp.  2009).    A  compensable  injury  does  not  include  an  injury  that  is \ninflicted upon  the employee at  a  time  when employment  services are  not \nbeing performed. Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 2009).  The \nphrase “in the course of employment” and the term “employment services” \nare not defined in the Workers' Compensation Act.  Texarkana Sch. Dist. \nv. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).  Thus, it falls to the court \nto  define  these  terms  in  a  manner  that  neither  broadens  nor  narrows  the \nscope of the Act.  Id. \n \nAn employee is performing employment services when he or she is doing \nsomething  that  is  generally  required  by  his  or  her  employer.   Id.; Pifer  v. \nSingle  Source  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the \nsame  test  to  determine  whether  an  employee  is  performing  employment \nservices as we do when determining whether an employee is acting within \nthe  course  and  scope  of  employment.  Jivan  v.  Econ.  Inn  &  Suites,  370 \nArk. 414, 260 S.W.3d 281 (2007).  The test is whether the injury occurred \nwithin  the  time  and  space  boundaries  of  the  employment,  when  the \nemployee  was  carrying  out  the  employer's  purpose  or  advancing  the \nemployer's interest, directly or indirectly.  Id.  In Conner, 373 Ark. 372, 284 \nS.W.3d  57,  we  stated  that  where  it  was  clear  that  the  injury  occurred \noutside the time and space boundaries of employment, the critical inquiry \nis  whether  the  interests  of  the  employer  were  being  directly  or  indirectly \nadvanced by the employee at the time of the injury.  Moreover, the issue \nof  whether  an  employee  was  performing  employment  services  within  the \ncourse of employment depends on the particular facts and circumstances \nof each case.  Id. \n \n In  analyzing  this  issue  under Hudak-Lee, supra,  Claimant’s  injury arguably \noccurred outside  the  time  boundaries  of  his employment.   The fall  took  place at \napproximately  4:35  p.m.    Per  the  Command  Log  for  Claimant  that  is  in  evidence,  his \n\nBRUCE – H400463 \n \n9 \nstatus on January 14, 2024, was “Off Duty” as of 4:25:49 that day. \n The   fall also arguably took   place   outside the   space   boundaries   of   his \nemployment:  in the parking lot of the police station.  The evidence does not show that \nhe had any duties to perform out there.  Claimant fell next to his own pickup truck, not \nnear his patrol vehicle. \n But  as  the Hudak-Lee Court  noted,  even  if  injury  did  occur  outside  the  time \nand/or space boundaries of the claimant’s employment, “the critical inquiry is whether \nthe interests of the employer were being directly or indirectly advanced by the employee \nat  the  time  of  the  injury.”    (Emphasis  added)   See  also  Wood  v.  Wendy’s  Old \nFashioned Hamburgers, 2010 Ark. App. 307, 374 S.W.3d 785. \n Claimant  has  alleged  that  at  the  time  of  his  fall,  he  was  attempting  to  retrieve \nfrom his vehicle the body cam that he used as part of his law enforcement work for the \ncity,  in  order  to  download  its  footage.   In Claimant’s post-hearing  brief,  his  counsel \nwrote: \nAfter logging “off duty,” Mr. Bruce took his body armor vest, body cam \nincluded,  to  his  personal  vehicle  and  was  returning  into  the  building  to \nfinish  the  paperwork  and  upload  the  footage  from  the  day.    During  this \nprocess,  he  realized  that  he  had  left  his  body  cam  on  his  vest  and  he \nbegan   to   return   to   his   vehicle   to   obtain   it.      It   was   at   this   time, \napproximately 4:35 p.m., that he slipped on the snow and injured himself. \n \n But  unfortunately,  this  version  of  the  events  of  that  afternoon  does  not  line  up \nwith the three versions Claimant himself has given that are in evidence:  (1) his unsworn \nreport; (2) his April 1, 2024, deposition; and (3) his hearing testimony.  In each of these \nrecounts, Claimant stated that at approximately 4:25 p.m., he parked his patrol vehicle \n\nBRUCE – H400463 \n \n10 \nand took  his gear  (including  his  body  armor)  to his  personal  vehicle.    In each  of  these \nretellings, he related that he then went inside the police station to do his paperwork and \nto transfer his body cam videos, but returned to his vehicle around 4:35 p.m. to retrieve \nthe  body  cam—slipping  and  falling  as  he  neared  his  truck.   Moreover,  Claimant \nacknowledged  that  he  had  completed any  paperwork  by this  point.   Consequently, the \nbrief cannot be given serious consideration. \n Further complicating this matter is the fact that while Claimant was consistent in \nrecounting this incident, which normally would bolster his credibility, his version of what \nhappened  late  in  the  afternoon  of  January  14,  2024,  is contradicted  by  the  body  cam \nfootage in evidence.  The footage shows that after he parked his Chevrolet Tahoe patrol \nvehicle  at  4:15 p.m.,  he  exited it and began to  pack  up his  gear and  paperwork in the \nfront  passenger  side  of  the  vehicle.    He paused from  doing  this  to step  outside  the \ngarage to deliver an insulator to a fellow officer who was in a Chevrolet Silverado police \nvehicle.   Thereafter,  he  resumed packing  up  his  gear.    At  4:21,  he took his  gear  and \npaperwork  from  the  vehicle  and  again  conversed with  the  other  officer.    He told the \nofficer that he had to go inside the police station to turn in his time sheet.  Claimant and \nthe  officer  entered the  station.    At  4:23  p.m.,  Claimant began unloading  his  gear  and \npaperwork at his workstation.  As part of this, he removed his body armor—to which the \nstill-running body cam was attached—and placed it in an adjacent chair.  Because the \ncamera was  facing  the  back  of  the  chair,  the  viewer  cannot  view  his  activities  at  this \npoint.   He  notified  the  dispatcher  at  4:25  p.m.  that  he was checking  out.    This  is \nconfirmed  by  the  Command  Log  in  evidence,  which  reflects  that  his  status was “Off \n\nBRUCE – H400463 \n \n11 \nDuty” as of 4:25:49.  At 4:27, Claimant told the  other  officer  that  he  forgot  to  get  the \nending mileage off his patrol vehicle; audio reflects that he left the room, supposedly to \nreturn to the vehicle to retrieve it.  He returned with the odometer reading, 103,777, at \n4:28.  The other officer announced that he was leaving to go on patrol.  Claimant replied \nto him at 4:29:  “I’ll come flying through there in a minute.”  After the officer finally left at \n4:31, sounds of paper shuffling and of a copier/scanner can be heard on the recording.  \nAt 4:33, Claimant zipped up his satchel, and carried it, a Styrofoam container, and the \nbody armor as he departed the police station.  He exited a set of double doors at 4:34.  \nWhen he did this, his personal truck came into view, sitting in the snow-covered parking \nlot.  Claimant used his key fob to remote-start the vehicle.  He stowed the items in the \nfront   passenger   compartment.      This   includes   the   body   armor.      Because   of   its \npositioning, the windshield of the truck stayed in view for the remainder of the footage.  \nClaimant closed the door at 4:34:57.  According to the undisputed evidence, he slipped \nand  fell  shortly  thereafter,  at  approximately  4:35  p.m.  At  4:39  p.m.  his  vehicle \nautomatically shuts off.\n1\n \n Again,   it   must   be   determined   whether Claimant was   directly   or   indirectly \nadvancing  his  employer’s  interests  at  the  time  the  fall  took  place.   He has  stated \nrepeatedly  that  at  the  time  of  his  fall  and  resulting  leg  injury,  he  was  returning  to  the \n \n \n1\nIt  bears  mentioning  that  I  cannot  find,  based  on  the  evidence,  that  Claimant’s  remote-\nstarting his vehicle shows that he intended to allow it to warm up while he returned to the station \nto  complete  any  work-related  tasks.    First,  he  did  not  testify  that  this  was  his  purpose  in  doing \nthis.    Second,  because  the  video  footage  does  not  show  that  Claimant  locked  his  now-running \nvehicle, it is not logical to assume that his intent was anything other than to depart the station—\nwhich, again, is what he told the other office was his plan. \n\nBRUCE – H400463 \n \n12 \ntruck  to  retrieve  the  body  cam  in  order  to  download  the  footage.    Captain  Chambers \nconfirmed  in  his  testimony  that  Claimant  did  not  perform  this  function  on  January  14, \n2024; he returned to the police station at a later time to do this.  But I cannot find that \nthis  was  his  intent,  in  light  of  the  footage.    Just  seconds prior  to the  fall,  Claimant  had \ndeliberately placed  the  body  armor  and  body  cam  into  his  vehicle;  he  did  not,  as  he \ntestified, place it there earlier, go into the police station, and then return to the truck to \nretrieve  it.  Based  on  the  body  cam  footage  that  is  in  evidence,  I  am simply unable  to \ncredit Claimant’s testimony. \n Obviously trying to tie his theory of the case to that footage, Claimant’s counsel \nhas posited that Claimant basically turned on his heels after closing the truck door and \nreturned  to get  the  body  cam.   But again, this was not Claimant’s testimony.  There is \nno  evidence  before  the  Commission  that  this  was  what in  fact happened.    For  me  to \naccept that  and  find  that this  was  what  occurred  at  4:35  p.m.  on  January  14,  2024, \nwould require that I engage in speculation and conjecture.  But I am not permitted to do \nthis.   See  Dena  Construction  Co.  v.  Herndon,  264  Ark.  791,  796,  575  S.W.2d  155 \n(1979). \n In  making  this  ruling,  I  am  mindful  of  the  testimony  of  Captain  Chambers  that \nofficers  are  supposed  to  download  their  body  cam  footage  before  leaving  “in  case \nthere’s a complaint for any reason . . . .”  Nevertheless, the evidence as set forth above \ndoes  not  support  the  finding  that  Claimant  intended  to  do  this—which,  again, he \nadmitted  was  the  only  duty  he  had  left  to  perform—after  he  closed  the  door  of  his \nvehicle at 4:35 p.m. that day. \n\nBRUCE – H400463 \n \n13 \n In sum, the preponderance of the credible evidence does not show that Claimant \nwas advancing the interests of the City of Marmaduke, directly or indirectly, at the time \nof  his  fall.    The “going and coming rule” generally forecloses recovery for an injury \nsustained  while  the  employee  is  going  to  or  returning  from  his  place  of  employment \nbecause  an  employee  is  generally  not  acting  within  the  course  of  employment  when \ntraveling  to  and from  the  workplace.   Olsten  Kimberly  Quality  Care  v.  Pettey,  328 Ark. \n381,  944  S.W.2d  524  (1997).  Claimant  has  not  shown  that  his  right  lower  extremity \ninjury  arose  out  of  and  in  the  course  of  his  employment.    Thus,  due  to  his  failure  to \nestablish  this  particular  element  of  compensability, he has  not met  his  burden  of proof \nand cannot prevail in this matter. \nB. Remaining Issues \n Because of the foregoing, the remaining issues—whether Claimant is entitled to \nreasonable  and necessary  medical  treatment,  temporary total  disability  benefits,  and a \ncontroverted attorney’s fee—are moot and will not be addressed. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H400463 JIMMY D. BRUCE, EMPLOYEE CLAIMANT CITY OF MARMADUKE, SELF-INSURED EMPLOYER RESPONDENT ARK. MUN. LEAGUE, THIRD-PARTY ADM’R RESPONDENT OPINION FILED AUGUST 2, 2024 Hearing before Chief Administrative Law O. Milton Fine II on June 21, 2024, in Jonesboro,...","fetched_at":"2026-05-19T22:49:43.581Z","links":{"html":"/opinions/alj-H400463-2024-08-02","pdf":"https://labor.arkansas.gov/wp-content/uploads/Bruce_Jimmy_H400463_20240802.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}