{"id":"full_commission-H104889-2024-04-18","awcc_number":"H104889","decision_date":"2024-04-18","opinion_type":"full_commission","claimant_name":"Ruth Escobedo","employer_name":"Jake’s Janitorial Services","title":"ESCOBEDO VS. JAKE’S JANITORIAL SERVICES AWCC# H104889 APRIL 18, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Escobedo_Ruth_H104889_20240418.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Escobedo_Ruth_H104889_20240418.pdf","text_length":9766,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H104889 \n \nRUTH ESCOBEDO, EMPLOYEE              CLAIMANT \n \nJAKE’S JANITORIAL SERVICES,  \nUNINSURED EMPLOYER RESPONDENT NO. 1 \n \nUNIVERSITY OF ARKANSAS,  \nEMPLOYER RESPONDENT NO. 2 \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nINSURANCE CARRIER/TPA RESPONDENT NO. 2 \n \nABSOLUTE JANITORIAL,  \nUNINSURED EMPLOYER                                                    RESPONDENT NO. 3 \n \nOPINION FILED APRIL 18, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents No. 1 appearing Pro Se. \n \nRespondents No. 2 represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 3 represented by the HONORABLE GUY A. WADE, Attorney at \nLaw, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed June 5,  \n\n \nESCOBEDO - H104889  2\n  \n \n \n2023.  Respondent No. 2 and Respondent No. 3 cross-appeal.  The \nadministrative law judge entered the following findings of fact and conclusions of \nlaw: \n1. The stipulations agreed to by the parties at the pre-hearing conference \nconducted on April 6, 2022, and contained in a Pre-hearing Order filed \nApril 6, 2022, are hereby accepted as fact. \n \n2. The   claimant   proved   by   a   preponderance   of   the   evidence   that \nRespondent No. 1, Jake’s Janitorial Services, and the claimant had an \nemployee/employer relationship on November 12, 2019.   \n \n3. The  claimant  failed  to  prove  by  a  preponderance  of  the  evidence  that \nRespondent No. 2, the University of Arkansas, and the claimant had an \nemployee/employer relationship. \n \n4. The  claimant  failed  to  prove  by  a  preponderance  of  the  evidence  that \nRespondent   No.   3,   Absolute   Janitorial,   and   the   claimant   had   an \nemployee/employment relationship.   \n \n5. The   claimant   proved   by   a   preponderance   of   the   evidence   that \nRespondent  No.  3,  Absolute  Janitorial,  has  liability  for  any  and  all \ncompensation awarded to the claimant through her employee/employer \nrelationship with Respondent No. 1, Jake’s Janitorial Services,  for  her \nNovember 12, 2019, compensable left knee injury under ACA §11-9-402. \n \n6. The  claimant  proved  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her left knee on November 12, 2019, \nwhile an employee of Respondent No. 1, Jake’s Janitorial Services.   \n \n7. The  claimant proved  by  a  preponderance  of the  evidence  that medical \ntreatment  admitted  into  evidence  by  the  parties  is  reasonable  and \nnecessary medical treatment for the claimant’s compensable left knee \ninjury.    The  claimant  also  proved  by  a  preponderance of  the  evidence \nthat  the  medical  treatment  recommended  by  Dr.  Arnold,  including \nsurgical intervention, is reasonable and necessary treatment. \n \n\n \nESCOBEDO - H104889  3\n  \n \n \n8. The claimant failed to prove by a preponderance of the evidence that she \nis entitled to temporary total disability benefits from January 10, 2021, to \na date yet to be determined. \n \n9. The issue of attorney’s fees and compensation rates are moot. \n \n10. The  defense  of  Notice  raised  by  Respondent  No.  2,  the  University  of \nArkansas, and Respondent No. 3, Absolute Janitorial, are moot.   \n \n After reviewing the entire record de novo, it is our opinion that the \nadministrative law judge’s June 5, 2023 decision is supported by a preponderance \nof the evidence, correctly applies the law, and should be affirmed.  The Full \nCommission notes the correct citation of two cases cited in the administrative law \njudge’s opinion:  Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 \n(1996); and Bailey v. Simmons, 6 Ark. App. 193, 639 S.W.2d 526 (1982).  We \notherwise find that the administrative law judge’s findings of fact and conclusions \nof law are correct and are therefore adopted by the Full Commission.   \n Therefore, we affirm and adopt the decision of the administrative law judge, \nincluding all findings and conclusions therein, as the opinion of the Full \nCommission on appeal.  For prevailing in part on appeal, the claimant’s attorney is \nentitled to a fee of five hundred dollars ($500) in accordance with Ark. Code Ann. \n§11-9-715(b)(1)(Repl. 2012).  Respondent No. 3, Absolute Janitorial, shall be \nliable for said fee.   \n \n \n\n \nESCOBEDO - H104889  4\n  \n \n \nIT IS SO ORDERED.   \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority opinion finding that the claimant has \nproven by a preponderance of the credible evidence that she was performing \nemployment services and suffered a compensable left knee injury resulting from a \nfall outside of her vehicle while working for Jake’s Janitorial Services on \nNovember 12, 2019. \nOur rules define a compensable injury as \"[a]n accidental injury . . . arising \nout of and in the course of employment.\"  Ark. Code Ann. § 11-9-102(4)(A)(i).  A \ncompensable injury does not include an \"[i]njury which was inflicted upon the \nemployee at a time when employment services were not being performed.\"  Ark. \nCode Ann. § 11-9-102(4)(B)(iii).  The Act, however, fails to define the phrase \"in \n\n \nESCOBEDO - H104889  5\n  \n \n \nthe course of employment\" or the term \"employment services.\"  Wood v. Wendy's \nOld Fashioned Hamburgers, 2010 Ark. App. 307, 374 S.W.3d 785 (2010).  \nOur Supreme Court has held that an employee is performing \"employment \nservices\" when he or she \"is doing something that is generally required by his or \nher employer.\"  Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 \n(2008).  \nThe Commission uses the same test to determine whether an employee \nwas performing employment services as we do when determining whether an \nemployee was acting within the course of employment.  Id.  Specifically, it has \nbeen held that the test is whether the injury occurred \"within the time and space \nboundaries of the employment, when the employee [was] carrying out the \nemployer's purpose or advancing the employer's interest directly or indirectly.\"  Id. \nThe critical inquiry is whether the interests of the employer were being directly or \nindirectly advanced by the employee at the time of the injury.  Id.  The issue of \nwhether an employee was performing employment services within the course of \nemployment depends on the particular facts and circumstances of each case.  Id.  \nIn short, an employee is performing employment services when engaged in \nthe primary activity that he or she was hired to perform, or in incidental activities \nthat are inherently necessary for the performance of the primary activity, or when \n\n \nESCOBEDO - H104889  6\n  \n \n \nan employee is performing employment services when he or she is engaging in \nan activity that carries out the employer's purpose or advances the employer's \ninterests.  Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 \n(1997); Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 \n(1997). \nAn employee is generally not said to be acting within the course of \nemployment when he is traveling to or from the workplace, and thus, the \"going \nand coming rule\" ordinarily precludes compensation for injuries sustained while an \nemployee is going to or returning from his place of employment.  Linton v. Ark. \nDep't of Corr., 87 Ark. App. 263,190 S.W.3d 275 (2004).  However, there are \nexceptions to the \"going and coming rule\" where the journey itself is part of the \nemployment service, such as traveling men on a business trip and employees \nwho must travel from job site to job site.  Id.  Whether an employer requires an \nemployee to do something has been dispositive of whether that activity \nconstituted employment services.  Campbell v. Randal Tyler Ford Mercury, Inc., \n70 Ark. App. 35, 13 S.W.3d 916 (2000). \nIn the present case, the claimant’s time sheets in the record reflect that her \nwork began inside the Pike house at 7:00 a.m. and mention nothing about the \nDuncan Street Apartments.  The going and coming rule clearly applies.  (Resp. \nEx. 1, Pp. 2-9; Hrng. Tr., Pp. 40-41).  Although the claimant asserted at the \n\n \nESCOBEDO - H104889  7\n  \n \n \nhearing that “sometimes we went outside to clean or pick up trash,” her \nsupervisor, Lena Phillips, stated, unequivocally, that “[w]e did not do anything \noutside of the building” and that “[w]e do not clean the outside of the buildings at \nall.” (Hrng. Tr, Pp. 35, 51).  Their work was strictly inside of the campus buildings. \n(Hrng. Tr., P. 51).  Regardless, the claimant was not scheduled to do any exterior \nwork.  (Hrng. Tr., P. 35).  \nAt the time of her injury, the claimant was merely getting out of her car \nwhen she fell in the parking lot on her way to begin her work day at 7:00 a.m. \ninside the PKA House.  The tools for her job were inside of the building and all of \nthe work to be done was inside of the building.  The record reflects the claimant \nhad not begun her work day at the Pike House prior to her injury.  For these \nreasons, I find that the claimant was not performing employment services at the \ntime of her injury and, therefore, her claim is not compensable. \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H104889 RUTH ESCOBEDO, EMPLOYEE CLAIMANT JAKE’S JANITORIAL SERVICES, UNINSURED EMPLOYER RESPONDENT NO. 1 UNIVERSITY OF ARKANSAS, EMPLOYER RESPONDENT NO. 2 PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT NO. 2...","fetched_at":"2026-05-19T22:29:45.775Z","links":{"html":"/opinions/full_commission-H104889-2024-04-18","pdf":"https://labor.arkansas.gov/wp-content/uploads/Escobedo_Ruth_H104889_20240418.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}