ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

JERRY L. HAYES

APPELLANT

V.

ARKANSAS EMPLOYMENT SECURITY DEPARTMENT PUBLIC EMPLOYEE CLAIMS DIVISION

APPELLEE

CA00-1404

October 3, 2001

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

E807300

REVERSED AND REMANDED

Appellant, Jerry Hayes, appeals from a decision of the Workers' Compensation Commission (Commission), denying his claim for benefits. The Commission, reversing the decision of the administrative law judge (ALJ), found that appellant was not performing employment services at the time of his injury. We find that there is substantial evidence to support the Commission's finding that appellant was traveling to the restroom when struck by a mail-cart in the hallway of the employer's premises. However, we reverse the Commission's conclusion that appellant was not performing employment services at the time of his injury and remand this case to the Commission for further consideration of appellant's claim in light of our recent decision in Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001).

Appellant is a twenty-six year employee of the Arkansas Employment Security Department (AESD), where he is an interview manpower specialist. In his job, he talks to companies new to the area and finds jobs for people. On May 13, 1998, he sustained an injury at work. At the hearing before the ALJ on July 26, 1999, he described how his injury occurred as follows. Appellant had just finished a meeting with a client when he headed to the supply room to get additional supplies and forms he needed. As he began to enter the supply room, he was paged and entered the break room to take the call. Appellant concluded the phone call, which was a business call, and left the break room to proceed to the supply room. As he left, he was struck from the back by a dolly loaded with supplies being pushed by the mailman. Appellant recalled, upon being struck, that he began to twist and turn. He attempted to grab hold of the bathroom wall that he was knocked into and the bathroom door, but fell down and twisted his back.

Contrary to appellant's testimony at the hearing, the Arkansas Workers' Compensation Form N, quoted by appellee's attorney during appellant's cross-examination, described the injury as follows: "Blind sited [sic] by mailman pushing boxes of supplies on a dolly as I crossed the hallway and attempted to open the bathroom door." Appellant explained that the summary of the incident was written by his supervisor and the completed Form N was sent to him for his signature. At the hearing, appellant read the following handwritten incident report he prepared five to ten minutes after the injury:

An employee's report of accident on the Public Employee Claims Division Form, filled out and signed by appellant on June 3, 1998, describes the activity of employment at the time of the injury as "walking from one room to bathroom at intersection, reaching for the bathroom door." Arkansas Workers' Compensation Form AR-C, signed and dated by appellant on June 18, 1998, relates that appellant was on his way to get supplies and to go to the bathroom, when he was struck by themailman. In a statement taken on June 29, 1998, by Muriel Hicks, Claims Determination Manager for the Public Employee Claims Division/Arkansas Insurance Department, appellant stated that he was on his way to the supply room and then the bathroom when he was struck by the mailman.

In an opinion filed August 18, 1999, the ALJ concluded that appellant sustained a compensable injury and awarded benefits. In his findings, the ALJ stated that Act 796 of 1993 did not repeal the personal comfort doctrine and that even if it was repealed, appellant's injury arose out of and in the course of his employment. The employer appealed, and the full Commission, in an opinion dated February 28, 2000, vacated the ALJ's decision and remanded for additional findings as to whether appellant was entering the bathroom or going to the supply room at the time of the incident. On remand, the ALJ made the following additional findings of fact and conclusions of law in an opinion filed March 14, 2000:

The employer appealed the decision to the full Commission on the basis that it was contrary to the law and the facts, and appellant cross-appealed the ALJ's finding that he took a temporary deviation and was traveling to the restroom when he was struck, stating that it was not supported by a preponderance of the evidence and was an error in law. The full Commission, in a two-to-one decision delivered August 9, 2000, reversed the decision of the ALJ, finding that appellant was not performing employment services when he was struck by a mail-cart when walking to the restroom. From the August 9, 2000, decision, comes this appeal.

Appellant first contends that the Commission's finding that he was traveling to the restroom when struck by a mail-cart in the hallway of the employer's premises is not supported by substantial evidence. This finding was first made by the ALJ in his opinion dated March 14, 2000, from which appellant filed a cross-appeal. The Commission, after comparing appellant's testimony at the hearing with his previous written statement, accorded more weight to the written statements and found that the preponderance of the evidence indicated that the appellant was traveling to the restroom when he was struck by a mail-cart.

When a workers' compensation claim is denied, the substantial evidence standard of review requires us to affirm the Commission if its opinion displays a substantial basis for the denial of relief sought by the worker. Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001). This court reviews decisions of the Arkansas Workers' Compensation Commission to see if they are supported by substantial evidence. Wal-Mart Stores v. Brown, 73 Ark. App.174, 40 S.W.3d 835 (2001). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).

Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. White v. Gregg Agric. Enter., 72 Ark. App. 309, 37 S.W.3d 649 (2001). We defer to the Commission's findings on what testimony it deems to be credible. Id. When there is conflicting evidence, it is within the Commission's province to reconcile conflicting evidence and to determine the true facts. Id. The Commission isnot required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Express Human Resources III v. Terry, 61 Ark. App. 258, 968 S.W.2d 630 (1998).

In this case, the Commission found that earlier reports of injury given by appellant were more credible than his later testimony given at the hearing before the ALJ. Based on the evidence presented, we conclude that there was substantial evidence to support the Commission's finding that appellant was traveling or walking to the bathroom when he was injured.

Appellant discusses points two through five in one section of his brief, and thus our consideration of these points will also be consolidated. Essentially, appellant contends that there is no substantial evidence to support the Commission's decision that he was not performing employment services at the time of his injury. The decision was based on its finding that appellant was on his way to the bathroom when he was struck by the mail-cart in the hallway of his employer's office. The Commission's analysis included the following: (1) that Act 796 of 1993 excludes from the definition of compensable injury any injury sustained by an employee at a time when he is not performing employment services; (2) that the test for determining whether an employee is acting in the course of employment at the time of the injury requires that the injury occur within the time and space boundaries of the employment, when the employee is carrying out the employer's purpose or advancing the employer's interest directly or indirectly (citing Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997)); and (3) that the personal comfort doctrine is no longer the law (citing Beaver v. Benton County Child Support Unit, 66 Ark. App. 153, 991 S.W.2d 618 (1999)).

A "compensable injury" is defined as "[a]n accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death." Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 1999). However, the definition of compensable injury excludes any "[i]njury which was inflicted upon the employee at a time when employment services were not being performed...." Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 1999). Just recently, this court handed down a decision Matlock v. Arkansas Blue Cross Blue Shield, supra, that provides a list of factors to be considered when determining whether an employee is engaged in employment services.1

Because the Commission did not have the guidance of the Matlock decision in determining whether appellant was performing employment services at the time of his injury, we reverse and remand this case, so that the Commission may reconsider its decision in light of Matlock.

Reversed and remanded.

Pittman and Neal, JJ., agree.

1 We note that the Arkansas Supreme Court has granted appellee's petition for review in Collins v. Excel Specialty Prods., 74 Ark. App. 400, 49 S.W.3d 161 (2001), a similar case, where this court, relying on Matlock, reversed the Commission's decision finding that the appellant was not performing employment services at the time of her injury and remanded for further consideration in light of Matlock.