                                   Cite as 2016 Ark. App. 484


                     ARKANSAS COURT OF APPEALS
                                          DIVISION III
                                          No. CV-16-389

                                                      Opinion Delivered   October 19, 2016
USA TRUCKS, INC.
BROADSPIRE SERVICES, INC.                             APPEAL FROM THE ARKANSAS
                     APPELLANTS                       WORKERS’ COMPENSATION
                                                       COMMISSION
V.                                                    [NO. G409263]

JAMES JARRELL
                                   APPELLEE           AFFIRMED


                                 LARRY D. VAUGHT, Judge

       USA Truck, Inc. and Broadspire Services, Inc., (collectively “USA Trucks”) appeals the

Arkansas Workers’ Compensation Commission’s order adopting and affirming the

administrative law judge’s (ALJ) finding that appellee James Jarrell suffered a compensable

injury. We affirm.

       In 2014, Jarrell applied for a truck-driving position with USA Trucks and attended the

company’s truck-driving school in Fort Wayne, Indiana. He obtained a commercial driver’s

license and was directed by USA Trucks to go to Van Buren for a two-day orientation, which

he did. He left the orientation with a “training driver” with whom he drove to Colorado and

back to Arkansas. While on the road, the two men slept in the sleeper berth of the truck,

although the trainer told Jarrell that, if he didn’t want to sleep in the truck, he could get a hotel

room at his own expense.

       After the training trip to Colorado, USA Trucks arranged for Jarrell to take a bus to

Memphis for additional training, which he did. As soon as Jarrell arrived at the West Memphis
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bus terminal, his new trainer took him to Wal-Mart to buy groceries for their trip to begin the

following morning. Later, the trainer instructed Jarrell on where to put his personal belongings

in the sleeping berth of the truck, told him that the top bunk was Jarrell’s, and told him that

they needed to get to sleep because they were leaving for Texas early the next morning. Jarrell

testified that the trainer never mentioned that he had any option other than sleeping in the

truck and instead told him that they should sleep there so they could leave very early the

following morning. Jarrell testified that he understood this as an instruction from the trainer.

       In the morning, the trainer woke Jarrell up by instructing him to immediately conduct

a pretrip inspection of the truck. Jarrell climbed down from the top bunk and inadvertently

stepped into a crock pot full of hot water, causing severe burns to both of his feet. He was

transported to the hospital by ambulance. Jarrell testified that he was climbing out of the bunk

bed to get dressed in order to conduct the inspection as instructed by the trainer. He noted

that he was required to keep an accurate log of his on-duty and off-duty time and that he was

not permitted to log any on-duty time until he was dressed and ready to work. He admitted

that he had not yet logged any on-duty time in the truck when he was hurt.

       Jarrell filed a claim with the Commission, alleging that he had suffered a compensable

injury. Appellants denied that his injury was compensable, arguing that he had not been

performing employment services at the time of his injury. The ALJ found that Jarrell had been

instructed to sleep in the truck so that the two men could leave early the next morning and

that by sleeping there he had advanced his employer’s interest. USA Trucks then appealed to

the Commission, which adopted and affirmed the ALJ’s opinion.




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       In reviewing Commission decisions, we view the evidence and all reasonable inferences

deducible therefrom in the light most favorable to the Commission’s decision and affirm it if

it is supported by substantial evidence. Hill v. LDA Leasing, Inc., 2010 Ark. App. 271, 374

S.W.3d 268. Substantial evidence exists if reasonable minds could reach the Commission’s

conclusion, and we will not reverse unless fair-minded persons could not have reached the

same conclusion when considering the same facts. Id. We will reverse if the Commission’s

decision is based on an incorrect application of the law. Id.

       The only issue presented by USA Trucks in this appeal is whether Jarrell was

performing employment services at the time of his injury. In Razorback Concrete v. Perkins, 2015

Ark. App. 368, at 2, 465 S.W.3d 15, 16, we explained:

               A compensable injury is one that arises out of and in the course of employment,
       but it does not include one that is inflicted on an employee at a time when employment
       services are not being performed. Wallace v. W. Fraser South, Inc., 365 Ark. 68, 225
       S.W.3d 361 (2006).

              The Workers’ Compensation Act does not define the phrase “in the course of
       employment” or the term “employment services.” Id. Our supreme court has taken on
       the task of defining these terms in a manner that is compliant with the strict
       construction required of the Act. Id. Since 1993, the supreme court has held several
       times that the test is whether the injury occurred within the time and space boundaries
       of the employment, when the employee was carrying out the employer’s purpose or
       advancing the employer’s interest directly or indirectly. Id. This inquiry depends on the
       particular facts and circumstances of each case. Texarkana Sch. Dist. v. Conner, 373 Ark.
       372, 284 S.W.3d 57 (2008).

Appellants argue that our case law has previously established that off-duty truck drivers who

are injured while performing “routine personal grooming and related tasks” upon arising in

the morning (showering, going to the bathroom) are not performing employment services and

their injuries are, therefore, not compensable. See Cook v. ABF Freight Sys., Inc., 88 Ark. App.

86, 90, 194 S.W. 3d 794, 797 (2004); Kinnebrew v. Little John’s Truck, Inc., 66 Ark. App. 90, 92,
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989 S.W.2d 541, 543 (1999). The following excerpt from Cook is helpful in understanding the

two cases:

               However, in Kinnebrew v. Little John’s Truck, Inc., 66 Ark. App. 90, 989 S.W.2d
       541 (1999), this court affirmed the Commission’s decision that a shower is not
       inherently necessary for the performance of the job a trucker was hired to do. In
       Kinnebrew, supra, the appellant, a truck driver, had stopped over at a rest stop for his
       eight-hour rest. While at the truck stop, the appellant cleaned his truck, washed laundry,
       and took a number for the shower facility. When a shower became available, he entered
       the stall, slipped and fell onto a slippery substance. The court held that the appellant
       was not performing employment services when he was injured while taking a shower
       while off duty. The court stated that showering is not inherently necessary for the job
       he was hired to do, and that the performance of such personal tasks, even while on the
       employer’s premises, was not performing employment services under Act 796 of 1993.

               In this instance, there was no evidence that Cook’s entry into the bathroom was
       for any reason other than to attend to his own personal needs. While the supreme court
       held in Pifer that the use of “toilet” facilities while at work is a necessity and that an
       employee who is injured while using the toilet during working hours is performing
       employment services, the case before us is readily distinguishable from Pifer, supra.
       Here, Cook was “off the clock” and taking a mandated eight-hour overnight rest break
       when the accident occurred. There is no suggestion in the record that his planned use
       of the bathroom upon arising at 7:30 a.m. in the morning in question was in any respect
       different from his routine morning preparations, whether he was on the road or at
       home. We thus conclude that the facts of this case are most analogous to Kinnebrew,
       supra, and that the performance of routine personal grooming and related tasks upon
       arising in the morning, even under the circumstances present in this case, is not the
       performance of employment services for the purposes of compensability.

Cook, 88 Ark. App. at 90–91, 194 S.W.3d at 797.

       The present case is distinguishable from Cook and Kinnebrew. First, unlike in those cases,

Jarrell was a trainee, was required to follow his trainer’s instructions, and was specifically

instructed to sleep in the truck so that they could leave early the next morning. Sleeping in the

truck was required and was done for the employer’s benefit. Moreover, unlike in Kinnebrew and

Cook, at the time of the injury Jarrell was not performing routine personal-grooming tasks as

he would have done upon arising in the morning regardless of where he slept. Here, Jarrell


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had been awakened by his trainer and specifically instructed to perform a pretrip inspection

of the truck. He was injured as he followed that instruction.

       USA Trucks argues that our previous holdings indicating that “the relevant inquiry” is

specifically “what [the claimant is] doing at the moment of his injury” mandate reversal because,

even if Jarrell was following the trainer’s instruction to conduct a pretrip inspection, what he

was doing at the moment of injury was simply getting out of bed. Gaskins v. Jeff Minner Trucks,

2010 Ark. App. 471, at 6 (emphasis added). Even under such a narrow inquiry, Jarrell was

performing employment services at the moment of his injury. Jarrell was stepping down from

the top bunk, where he had been required to sleep by his employer, to initiate employment

services (an inspection of the truck) at the direction of his trainer. While he was not yet on the

clock and could not log any on-duty hours until he got out of bed and got dressed, the fact

that the injury occurred while stepping out of bed does not automatically mean that Jarrell was

“performing personal grooming and related tasks” as described in Kinnebrew and Cook.

       Affirmed.

       HIXSON and BROWN, JJ., agree.

       Ledbbetter, Cogbill, Arnold & Harrison, LLP, by: R. Scott Zuerker and Joseph Karl Luebke,

for appellant.

       Marc I. Baretz, for appellee.




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