ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE KAREN R. BAKER

DIVISION IV

LOIS SHACKLEFORD

APPELLANT

V.

DOLLAR GENERAL STORE

APPELLEE

CA 00-1040

APRIL 25, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E905251]

AFFIRMED

Appellant, Lois Shackleford, brings this appeal from a decision of the Workers' Compensation Commission holding that, under the provisions of Ark. Code Ann. § 11-9-102(5)(B)(iii) (Repl. 1999), appellant was not entitled to compensation for an injury sustained when she tripped over a concrete stop in the parking lot on her way into her employer's store. Appellant urges that the Commission erred in finding that appellant was not engaged in activity to carry out the employer's purpose or to advance the employer's interest when the accident occurred; therefore, she was not entitled to an award of benefits. Testimony presented at the hearing focused on the issue of whether appellant was required by her employer to go to the store on the day of the incident to verify that the assistant manager had properly opened the store. Both appellant's and appellee's arguments on appeal focus on determining whether

employment services were being performed at the time of the injury. We find that substantial evidence supports the Commission's finding and affirm.

On appeal, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings. Coble v. Modern Business Sys., 62 Ark. App. 26, 28, 966 S.W.2d 938, 939 (1998). We must affirm the Commission's decision if its finding is supported by substantial evidence; even when a preponderance of the evidence might indicate a contrary result, we affirm if reasonable minds could reach the Commission's conclusion. Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 161, 943 S.W.2d 608, 609 (1997). The Act, as amended, requires that the evidence be weighed impartially, and that the provisions of the Act be strictly construed. Id.

Appellant was employed by appellee, Dollar General, in November 1998. She was initially employed as a clerk before being promoted to a "third key" position and finally to assistant manager, a position which she held at the time she terminated her employment in August 1999. A "third key" has many of the same responsibilities as an assistant manager, including opening and closing the store. In May 1999, Dollar General employed Mr. Looper as a "third key." There were apparently some problems with Mr. Looper opening the store on time and, as a result, appellant and the store's manager, Mr. Armstrong, would occasionally check on Mr. Looper to insure that the store was open and running properly.

On Sunday, May 2, 1999, appellant went to the store to check on Mr. Looper to verify that the store was properly operating. As appellant was walking across the parking lot, she tripped over a concrete stop and fell. As a result of the fall, she suffered fractures of her right upper extremity. She remained off work until May 31, 1999, when she returned. Sheterminated her employment in August 1999. Appellant sought payment of temporary total disability benefits beginning May 2, 1999, through May 31, 1999, and from August 21, 1999, through an undetermined future date.

The administrative law judge denied benefits, finding that appellant had failed to prove that she was performing "employment services" at the time of the accident. The Commission agreed.

A similar fact situation was presented in Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 161, 943 S.W.2d 608, 609 (1997). In Hightower, a teacher who had been called in to work when the school was closed due to weather conditions, was injured when she slipped and fell on ice in her employer's parking lot. We noted that the going-and-coming rule ordinarily denied compensation to employees who were traveling between their home and job, and while the premises exception to this rule previously provided that injuries were compensable if an employee was injured while on the employer's premises, Act 796 of 1993, codified at Ark. Code Ann. § 11-9-102(5)(B)(iii)(Repl. 1996 & Supp. 1999), eliminated the premises exception to the going-and-coming rule for compensation claims:

This provision seems clearly aimed at eliminating the premises exception to the going-and-coming rule since, under a strict construction of Ark. Code Ann. Section 11-9-102(5)(B)(iii), merely walking to and from one's car, even on the employer's premises, does not qualify as performing "employment services."

Hightower at 164, 943 S.W.2d at 610.

We find no distinction between the facts in Hightower and the facts in this case. The fact that appellant was in the parking lot of her employer when the injury occurred is notsufficient to establish that she was performing "employment services." We conclude that substantial evidence supports the Commission's finding that appellant was not performing employment services at the time of her injury. Accordingly, we affirm.

Hart and Neal, JJ., agree.