Green v. Coca-Cola Bottling Co.

Jimmy GREEN v. COCA-COLA BOTTLING COMPANY

96-1059                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 7, 1997


1.   Workers' compensation -- "quasi-course of employment" doctrine
     summarized. -- The "quasi-course of employment" doctrine
     includes activities undertaken by the employee following upon
     his or her injury that, although they take place outside the
     time and space limits of the employment and would not be
     considered employment activities for usual purposes, are
     nevertheless related to the employment in the sense that they
     are necessary or reasonable activities that would not have
     been undertaken but for the compensable injury.

2.   Workers' compensation -- prohibited-conduct test applied by
     appellate court -- appellant's injuries found compensable. --
     The court of appeals applied the prohibited-conduct test,
     which declares that when the injury following the initial
     compensable injury arises out of a quasi-course activity, such
     as a trip to the doctor's office, the chain of causation
     should not be deemed broken by mere negligence in the
     performance of the activity but only by intentional conduct
     that may be regarded as expressly or impliedly prohibited by
     the employer; because there was no proof that appellant's
     attempt to assist the stranded motorist was prohibited by his
     employer, the court of appeals held that appellant's injuries
     were compensable; accordingly, the court of appeals reversed
     the Workers' Compensation Commission's ruling and remanded the
     case for further proceedings.

3.   Workers' compensation -- issues of first impression not
     resolved without specific request or adequate legal argument -
     - request for review of court of appeals decision denied. --
     Where both appellee and appellant assumed that the "quasi-
     course of employment" doctrine was the appropriate standard to
     apply, even though the supreme court had never adopted it nor
     been asked to adopt it; where the supreme court had never
     determined the appropriate test for ascertaining whether a
     claimant has deviated from a "quasi-course of employment"
     journey; and where research indicated that there were several
     ways to analyze the fact pattern presented by the case, yet
     the parties failed to argue which standard should be adopted,
     the supreme court was hesitant to resolve such an important
     issue of first impression without a specific request to do so
     and without adequate legal argument upon which to base a
     decision; therefore, the supreme court found that the petition
     for review was improvidently granted; the supreme court
     declined appellee's request to review the decision of the
     court of appeals.  


     Appeal from Arkansas Workers' Compensation Commission;
petition for review denied. 
     Searcy Wood Harrell, for appellant.
     Michael J. Dennis, for appellee.

     Annabelle Clinton Imber, Justice.
     This is a workers' compensation case that we initially agreed
to review upon Coca-Cola Bottling Company's petition.  Upon further
examination, we conclude that the petition for review was
improvidently granted.  Accordingly, the petition is denied, and
the Court of Appeal's decision in Green v. Coca-Cola Bottling Co.,
CA95-1117 (Ark. Ct. App. Aug. 21, 1996), remains the binding ruling
in this case.
     The underlying facts of this case are undisputed because the
parties presented the case to the Workers' Compensation Commission
on a stipulated record.  On July 1, 1992, Jimmy Green sustained a
compensable injury while working for the Coca-Cola Bottling Company
("Coca-Cola").  On March 23, 1993, Green traveled to his doctor's
office in Pine Bluff for an appointment regarding his earlier
injury.  When Green was approximately eight miles outside of Pine
Bluff, he observed an elderly woman experiencing car trouble on the
side of the highway.  Because Green was early for his appointment,
he decided to turn around in a private driveway so that he could
assist the stranded motorist.  While attempting to turn into the
driveway, Green was struck from behind and injured.  
     Green applied for workers' compensation benefits for the
injuries he sustained while traveling to the doctor's office.  The
Workers' Compensation Commission applied the "quasi-course of
employment" doctrine, which the Court of Appeals has previously
adopted and summarized as follows:
     activities undertaken by the employee following upon his
     or her injury which, although they take place outside the
     time and space limits of the employment, and would not be
     considered employment activities for usual purposes, are
     nevertheless related to the employment in the sense that
     they are necessary or reasonable activities that would
     not have been undertaken but for the compensable injury.
Preway, Inc. v. Davis, 22 Ark. App. 132, 736 S.W.2d 21 (1987);
Wolfe v. City of El Dorado, 33 Ark. App. 25, 799 S.W.2d 812 (1990);
Eagle Safe Corp. v. Egan, 39 Ark. App. 79, 842 S.W.2d 438 (1992)
(citing Arthur Larson & Lex L. Larson, Larson's Workers'
Compensation Law  13.11(d) (1997)).  The Commission found that
Green's journey to the doctor's office fell under the "quasi-course
of employment" doctrine because the trip was a reasonable and
necessary activity relating to the prior compensable injury.  The
Commission, however, concluded that Green deviated from his
otherwise compensable journey when he attempted to assist the
stranded motorist.  Because Green's deviation did not advance the
employer's interest and was not causally related to a risk
reasonably incident to the employment, the Commission held that
Green's injuries were not compensable.
     On appeal, the Court of Appeals agreed with the Commission
that Green's journey to the doctor's office fell under the "quasi-
course of employment" doctrine.  However, the Court of Appeals
applied a different standard from that used by the Commission to
determine whether Green's attempt to assist the stranded motorist
was an impermissible deviation from an otherwise compensable
journey.  Specifically, the Court of Appeals applied Larson's
"prohibited-conduct" test which declares that:
          When the injury following the initial compensable
     injury arises out of a quasi-course activity, such as a
     trip to the doctor's office, the chain of causation
     should not be deemed broken by mere negligence in the
     performance of the activity, but only by intentional
     conduct which may be regarded as expressly or impliedly
     prohibited by the employer.
Id. (citing Larson, supra,  13.11(d)).  Because there was no proof
that Green's attempt to assist the stranded motorist was prohibited
by Coca-Cola, the Court of Appeals held that Green's injuries were
compensable.  Accordingly, the Court of Appeals reversed the
Commission's ruling and remanded the case for further proceedings.
     We granted Coca-Cola's petition for review pursuant to Ark.
Sup. Ct. R. 1-2(e) (as amended by per curiam July 15, 1996).  In
their briefs and during oral arguments, both Coca-Cola and Green
assume that the "quasi-course of employment" doctrine is the
appropriate standard to apply in this case.  Although the Court of
Appeals has previously recognized this doctrine, this court has
never adopted Larson's "quasi-course of employment" doctrine nor
have we been asked to do so in this case.  
     Moreover, we have never determined the appropriate test for
ascertaining whether a claimant has deviated from a "quasi-course
of employment" journey.  Although the parties have offered no
guidance in this area, our research reveals that courts have
applied a variety of tests to resolve the deviation inquiry.  In
this case, the Court of Appeals applied Larson's prohibited-
conduct test.  Other jurisdictions, however, have focused upon the
temporal and geographic extent of the deviation.  Cheryl M. Bailey,
Workers Compensation:  Compensability of Injuries Incurred
Traveling To or From Medical Treatment of Earlier Compensable
Injuries, 83 A.L.R.4th 110,  14 (1991).  Some courts have applied
the "positional risk doctrine" which states that the injury is
compensable if the conditions of employment place the claimant in
a position which requires him by ordinary standards of humanity to
undertake the rescue.  D.L. Cullifer & Son, Inc. v. Martinez, 572 So. 2d 1360 (Fla. 1990); Larson, supra,  28.00.  Other courts have
focused on whether the deviation is insubstantial, and whether the
"good-samaritan" act promoted good will toward the claimant's
employer.  Bunny Bread et al. v. Shipman, 267 Ark. 927, 591 S.W.2d 692 (1980); Larson, supra,  19.00 and 27.22.  
     In sum, there are several ways to analyze the fact pattern
presented by this case.  The parties, however, have failed to argue
which standard should be adopted by this court.  We are hesitant to
resolve such an important issue of first impression without a
specific request to do so and without adequate legal argument upon
which to base our decision.    
     For these reasons, we find that the petition for review was
improvidently granted.  Accordingly, we decline Coca-Cola's request
to review the decision of the Court of Appeals in Green v. Coca-
Cola Bottling Co., CA95-1117 (Ark. Ct. App. Aug. 21, 1996).  See
Hamilton v. Jeffrey Stone, Co., 297 Ark. 24, 759 S.W.2d 792 (1988)
(refusing to review a decision from the Court of Appeals after the
petition was initially granted by this court).
     Review denied.
     Brown, J., dissents.
     Brown, J., dissenting.  I dissent and would address the issue
of substantial evidence.