Arkansas Horse-Racing Employee’s Leap From Burning Stable Was Not Compensable
Applying Arkansas’ relatively narrow employment-related rule, which excludes compensation for an injury which was inflicted upon the employee at a time when employment services were not being performed [see Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 2019)], a state appellate court affirmed a decision by the Workers’ Compensation Commission that denied benefits to an employee at a horse-racing track who sustained injuries when he leaped from a second-story window to escape a fire [Lopez v. James Divito Racing Stable, 2021 Ark. App. 257, 2021 Ark. App. LEXIS 270 (May 26, 2021). Acknowledging that the employee resided in space above the stables, and that such an arrangement was common within the horse-racing industry, the appellate court nevertheless agreed with the Commission that the employee’s living arrangement was not required, but merely permitted. Accordingly, the employee was not a residential employee and he was not performing employment services at the time of his injury.
Background
Lopez fractured his spine when he leaped out of a second-story window to escape a fire while he was off duty and sleeping in a space above racing stables owned by his employer. Lopez was an experienced worker in the horse-racing industry, had regular hours from 5:30 a.m. to 10:30 a.m. each morning, and worked other hours when the employer had horses running in races, which happened about 25 times during the four-month racing season.
Lopez contended that he was on call, but that was disputed by the employer. Lopez was paid $350 per week and, according to the custom within the horse-racing industry, was allowed to live above the stable area. The employer contended that there was no requirement that Lopez live at the track. Its representative agreed that it was quite common for staff such as Lopez to do so.
On the night before his injury, Lopez has gone out to eat with a friend, came back to his room, and fell asleep about 11:30 p.m. He testified that he had been told by the trainer to start work at 6:00 a.m. the next morning. He awoke the next morning to a fire and the smell of smoke. He testified the fire began at approximately 5:45 a.m., and that he could not open the door of his room because of the fire. He escaped the fire by jumping from a window, which was approximately 10 feet to the ground. He suffered a burst fracture of his T12 vertebra, underwent a successful short segment fixation and fusion surgery, but was unable to work for some ten months following his injury.
ALJ Awards Benefits
He sought workers’ compensation benefits. The employer and carrier contested the claim, contending that under the Arkansas Workers’ Compensation, Lopez was not performing employment services at the time of his injury. An ALJ disagreed, finding that Lopez’s employer benefited from Lopez’s presence on the premises. The ALJ found that Lopez was performing employment services when the fire occurred pursuant to the risk doctrine described in Deffenbaugh Industrial v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993), and applied by the state supreme court in Jivan v. Economy Inn & Suites, 370 Ark. 414, 260 S.W.3d 281 (2007).
Commission Reverses
The Commission reversed, concluding that Lopez was not providing employment services when he was injured. It also found that this case was unlike Deffenbaugh and Jivan because Lopez was not required to live on premises as a condition of his employment. Instead, the Commission found that he willfully chose to stay at the track because it was free and convenient. The Commission concluded that, because Lopez was doing nothing to further the interest of his employer at the time of the injury, he failed to prove by a preponderance of the evidence that the injury was compensable.
Appellate Court Decision
The appellate court noted that the case turned on whether Lopez was performing employment services when he was injured. As a bit of commentary, may I add that Arkansas employs a relatively narrow rule for determining whether an injury arises out of and in the course of the employee’s employment. A compensable injury does not include an “[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. 2019)]. Citing Arkansas case law, the court stressed that an employee is performing employment services when he or she is doing something generally required by his or her employer.
As had the Commission, the appellate court distinguished Deffenbaugh and Jivan, noting that the Commission had determined that Lopez’s presence in the space above the stable was not required by the employer. It cited Cook v. ABF FreightSystems, Inc., 88 Ark. App. 86, 194 S.W.3d 794 (2004), as standing for the proposition that an overnight injury suffered by a nonresident employee is not compensable when the employee is merely attending to his or her own personal needs.
Transient Nature of Horse-Racing Industry
Lopez argued that the Commission failed to address the transient nature of the horse-racing industry and that resident employees were a common occurrence. He contended that his living at the racetrack was an indirect benefit to his employer because it allowed the stable to pay him lower wages; made it easier for experienced help like him to move from racetrack to racetrack; and by living at the stable he would be there if needed.
Not a Resident Employee
The court said neither party had cited any Arkansas cases involving an employee who was injured while residing on the employer’s premises when the employee’s residence on premises was permitted but not required. According to the court, Jivan and Deffenbaugh were not controlling because those decisions involved resident employees who lived on premises and were on call twenty-four hours a day, seven days a week. The instant case was different because Lopez generally had fixed hours of work and was not required to be “on call” 24-7. Again, the employer’s representive testified that Lopez was not required to live on the grounds as a condition of his employment. Substantial evidence, therefore, supported the Commission’s fact-based conclusion that Lopez was not a resident employee.
The court summarized its conclusion: that there was a substantial basis for the denial of benefits:
Lopez was not within the time and space boundaries of his employment when he was injured. He had returned from dinner, there was no race the next day, and his set work hours did not begin until later that morning. What Lopez was doing at the time of the injury—sleeping—was not inherently necessary for the performance of his job as a hot walker. He was merely attending to his own personal needs. Lopez was not indirectly advancing his employer’s interest either. The fire apparently occurred at 5:45 a.m., which was before his work began. Lopez was free to do as he pleased and had no employment obligation of any kind as he slept in a room above the stables provided for his convenience. Lopez’s back injury is most regrettable; but it is also not compensable under Arkansas law.