BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION

CLAIM NO. G502659 (3/28/2015)

BILLY J. LOVELL, EMPLOYEE CLAIMANT

DADDY RABBIT’S TRUCK WASH, UNINSURED RESPONDENT #1

DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2

OPINION FILED AUGUST 30, 2017

Hearing before ADMINISTRATIVE LAW JUDGE ANDREW L. BLOOD, on June 30, 2017, atLuxora, Mississippi County, Arkansas.

Claimant represented by the HONORABLE SCOTT HUNTER and the HONORABLE BILLBRISTOW, Attorneys at Law, Jonesboro, Arkansas.

Respondent #1 represented by the HONORABLE ROBERT L. COLEMAN, Attorney at Law,Blytheville, Arkansas.

Respondent #2 represented by the HONORABLE DAVID L. PAKE, Attorney at Law, LittleRock, Arkansas.

STATEMENT OF THE CASE

A hearing was conducted in the above style claim to determine the claimant’s entitlement

to workers’ compensation benefits. On March 30, 2017, a pre-hearing conference was conducted

in the claim, from which a Pre-hearing Order of the same date was filed. The Pre-hearing Order

reflects stipulations entered by the parties, the issues to be addressed during the course of the

hearing, and the contentions of the parties to the afore. The Pre-hearing Order is herein

designated a part of the record as Commission Exhibit #1.

The testimony of Billy James Lovell, Tiffany Alison, and Dawn Marie Lovell, coupled

with medical reports, photographs, and other documents comprise the record in this claim.

DISCUSSION

Billy James Lovell, the claimant, with a date of birth of June 7, 1972, attended Sowela

Technical College in Lake Charles, Louisiana and obtained a degree in automotive mechanics

and diesel mechanics. The claimant is certified as both an automobile mechanic and as a diesel

mechanic. The claimant offered that he was I Car Certified and ASC Certified.

The claimant maintains that he started work for respondent #1 three to five years prior to

March 28, 2015, accident which serves as the basis for the present claim. The claimant confirmed

that he initially worked for respondent #1 as a work-release inmate, and subsequently

transitioned to that of an hourly worker– – punching the time clock and washing trucks, The

claimant eventually was allowed to keep up with his own time and write his own ticket.

The claimant recorded his time in a book and turned in invoices to respondent #1 for the

work he performed so that those could be billed to various customers of respondent #1.

Regarding the afore, the claimant added:

That's correct. And if I lost an invoice,Mr. Daddy Rabbit's, John Eddleman, wouldcharge me $1500.00 per invoice.(T. 36).

While the claimant testified that he was employed by respondent #1 as a roadside mechanic, he

offered regarding other services that he performed in the employment:

For the company, yes. I've did just abouteverything. I've been on wrecker calls, I'vebeen on roll-back calls. Anything he asked,I did.(T. 10).

The claimant maintains that he was required to work from 8:00 a.m. to 5:00 p.m.,

Monday through Saturday, and that he was on call 24 hours a day, seven days a week. The

claimant’s testimony reflects that on March 28, 2015, he arrived for work at 8:00 a.m. The

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claimant testified regarding a telephone call he received from Mr. Eddleman:

The call, I remember he wanted me to picksomething up, but he wanted me to take threeof the work-release inmates that we had thereand take them to our salvage yard at Exit 71and have them and us clean up while we werethere.(T. 12).

Additionally, the claimant testified:

As a chore, just to go down there, and notlet them work by their-selves, but I,actually, helped them out, but -- and numbertwo, they were work-release inmates. I hadto supervise them. They couldn't be leftalone. (T. 12).

The testimony of the claimant reflects that he picked up the three work-release inmates at the

truck stop where they were dropped off, loaded them in his service truck, and took them to the

Exit 71 shop. The claimant testified that en route to the shop he made a stop to get some floor

cleaner.

The testimony of the claimant reflects the identities of the work-release inmates as Ryan

Chase, Harold R. Marshall, and Armondo Villegrana. The claimant testified regarding the

various assignments of the work-release inmates once they reached the shop:

I got Ryan kind of -- they're work-releaseinmates, you have to get them motivated; someof them. I got Ryan Chase motivated insidethe shop to clean. H. R., he went -- Johnhad done informed him what he wanted him todo.(T. 13).

While Mr. Chase was working inside the building, Mr. Marshall and Mr. Villegrana performed

tasks outside in the salvage yard:

They were using a chain to move dieselrear ends and what not around in the salvage

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yard to, you know, move them around, and Iwas helping them, you know, to be sure theywas doing it safe.(T. 14).

The claimant testified that he and the work-release inmates had been working for about an hour

and a half before Mr. Eddleman arrived. During the afore period claimant testified:

Oh, we were working and cleaning up aroundthe salvage yard and moving some of thethings around. You had one person on a Lull,one in the shop. Me and Armondo was helpingtie the rear ends up with a chain on theLull.(T.14).

The claimant explained that the Lull is “like a Skytrak, it’s a forklift”. Mr. Marshall was

operating the Lull, The testimony of the claimant reflects:

He was pulling the forks out and me and Armondo would tie thechains around the forks to the rear end that we were moving, thediesel rear ends, and they were just organizing them to make moreroom there, organizing them. (T. 15).

As to whether or not he was on his hourly rate of pay at the time that work was being

performed at the salvage yard, the claimant offered:

Hourly rate, if I wrote an hourly ticket. I mean, any time I worked, if I fixed atruck, Mr. Eddleman regulated the rate of payand he regulated the hours of minimum pay,you know, two hours, a minimum, if I didanything. If I worked on making something atthe shop or did inventory, anything likethat, I could write a service ticket on that,you know, and be paid, you know, hourly, howhe wanted to pay it. I didn't get a chanceto write a ticket on that for going downthere to clean all that up, because I gotinjured that day.(T. 15).

The claimant testified that he was injured by the actions of the Lull Operator. The claimant

testified regarding the mechanics of the March 28, 2015, accident:

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We were working about an hour. Hour and ahalf later, Mr. Eddleman shows up, figuringout the time. When he showed up, he broughthamburgers for everybody and the work-releaseinmates didn't really have money. He feedsthem lunch when he's going to keep them downthere sometimes. And he does bring it foreverybody. Well, when he got there, hetalked to Harold Marshall, he told me andArmondo to pull the chains off the Lull. When Armondo and me were over there gettingthe chains off the Lull, I was trying to leadArmondo away from it. Because I yelled and Idon't know if he heard me or not, but I knowthat's unsafe for what he told him to do towedge those forks in between the crossmembers and you remove that chain.(T. 17).

The claimant testified that Mr. Eddleman directed him and Armondo to remove the chains and

instructed Mr. Marshall on how to pick it up.

The claimant added that he got Mr. Villagrana safely away from the area where the lifting

was about to occur, at which time everything went black as he got hit in the face by a piece of

metal. Thereafter, the claimant testified:

Just bits and pieces. Somebody brought mesome ice to put on my eye. They helped me into John Eddleman's truck. He had to stop andget gas. I remember that and I remember himasking me if I could make it to Jonesboro andI told him, "No, take me to the hospital." And the next thing I know, I wake up andthey're pushing my nose to the side of myface trying to stitch me up.(T. 18).

The claimant was taken to the Great River Medical Center in Blytheville. The claimant testified

that Mr. Eddleman was present at the hospital, as was his fiancé, Dawn Lovell. The claimant

was later airlifted to the MED in Memphis. The claimant testified regarding the conversation he

heard between Mr. Eddleman and medical personnel while at Great River Medical Center:

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I heard him say that, "It's workers' comp,that he had to have a urine test done on me,and then, I heard the nurse yell back at himthat they needed to get somebody in there todo this. I'm laying in the bed. I had tohave the nurse help me sit up to pee in acup, and they told him that they had donegive me shots of medication. My face wascrushed.(T. 19).

The claimant noted that his fiancé was present at the time the statement was made by Mr.

Eddleman regarding the workers’ compensation aspect of his injuries.

The claimant testified regarding the documents generated as a result of his employment

by respondent #1. Specifically, the claimant identified a 2014 W-2 form provided by respondent

which reflected his total hourly earnings of $80,219.00. The claimant noted that the form did not

reflect an entry designated commission. The testimony of the claimant further reflects regarding

deductions identified on the 2014 W-2:

Yes. And then, they took out $8,000.00 infederal tax. They took out 4900 in SocialSecurity, and $1,000.00 in Medicare taxes.(T.22).

The claimant denies that he ever received a 1099 Form during his entire time that he worked for

respondent #1.

The claimant testified regarding his understanding of his employment situation with

respondent #1 at the time he commenced working for same:

He would set the two-hour minimum on roadservice. He would set the rate of pay. Certain companies were higher rates, somewere lower. The further we went, the more wecould charge. The hourly rate, you know,making pipe stakes around the yard, doinganything around there that, you know, that hewould agree, you know, write a ticket on it,

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working on his wreckers, anything. You know,we could write a ticket on it and it wouldjust -- you know, we'd be paid by that, buthe determined the rate of pay. It never wasanything set in – (T. 22-23).

The claimant noted that he never received a Form 1099, but rather received a W-2 every year,

and a check stub every week. The claimant identified one of his check stub for the pay period

5/19 to 5/25, reflecting gross earnings of $1,367.00, and net earnings of $1,043.00, after taxes.

The claimant discussed his assessment of the documents generated by respondent and provided

to him:

They're all -- you know, they're differentamounts, you know, it's just -- between theweeks, there's hourly pay, there's lifeinsurance, there's everything on it.

Yes. There's some hourly pay on them. They're mostly -- it says, "Commissionquantity, one hour, rate of pay $1367.00,"but they still, when I turned in my invoices,it was -- I write the hours down that Iperformed on that job and the rate of pay wasalready set forth by John Eddleman and DaddyRabbit's. There's one on here. There's evencommission shared on this.

If I took anybody with me to kind oftrain them or if I took anybody with me, Johnwould split the rate of pay for two hours,split it between me and the other person. So, he determined the rate of pay.(T. 24).

* * *

I see here, hourly 3 hours at $10.00 an hour. You know, someother places, there’s hourly at $50.00 an hour. He determines therate of pay. Just two hours at 10. He determined 5 hours at $15.00an hour. He determined the rate of pay. He would go into theoffice and tell them how much to pay me an hour, because Icouldn’t receive commission on a wreck. (T. 25).

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The claimant testified regarding the make-up of the respondent #1’s workforce:

For a few months, I was his only mechanicthat could do road service that had a validdriver's license. He had other people there. One had a driver's license. One didn't havea driver's license, and the one that didn't,couldn't be trusted.(T. 24-25).

Job task-wise, the claimant confirmed that he did whatever he was instructed to do by

Mr. Eddleman.

The claimant explained that since the March 28, 2015, injury he has experienced

difficulty with his memory. The claimant added that he has lost some memory due to the

accident. The testimony of the claimant reflects that he has difficulty remembering conversations,

noting that if he does not write it down as soon as it comes in he’ll never remember it.

In addition to his memory difficulties, the claimant described other injuries or residuals

from the March 28, 2015, accident to include a loss of the senses of smell and taste. Regarding

his vision, the claimant testified:

Vision is gone on this side. I'm colorblind. My depth perception is off; that'swhy you see me rub against things.

I'm on medication to keep me from gettingaggravated, sad, you know, to try to keep mesane going through this.(T. 33).

During cross examination, the claimant testified that he has not work since the March 28,

2015, accident, noting that he did not think that he is capable of working. Regarding the afore,

the claimant offered:

I’ve tried to do some tests when you can do them online athome. I can’t remember to pass the tests. The tests are very hard.(T. 35).

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The testimony of the claimant reflects that re-certification every five (5) years is required for an

automotive, and that he would not qualify at this time to work on diesel vehicles. Claimant

attributes the afore to his mental situation.

The claimant’s testimony reflects that his employment with respondent provided him the

best combination of compensation and freedom in his activities as to how he did his work. The

claimant was questioned regarding his method of compensation/earnings from respondent:

Yeah, I was paid a commission and an hourly rate set by JohnEddleman.

But it was an hourly rate of pay. If I charged 3 hours, thecommission rate that John Eddleman set for Daddy Rabbit is $75an hour. I’d get 3 hours of so much commission of the labor. Hegot the rest.

Yeah, because mostly it wasn’t all my tools in the service truckthat I used. The majority of it was his, the tire tools, the jacks, theimpact, big sockets, and stuff like that wasn’t mine.

The air compressor, things like that. The truck was his. (T. 40).

The claimant offered that the job on which he suffered the March 28, 2015, injury was to have

been paid on an hourly rate. (T. 41). The claimant confirmed that through his injury of March

28, 2015, his year to date earnings at respondent was $22,517.00. In explaining that with the

exception of $740.00, all of the afore was attributed to commission, the claimant offered

regarding the hourly rate:

It depends on how you relate hourly rate. Hourly rate can be that you punch a timeclock and everybody in the company is paidaround about the same, is all generated. Hourly rate can be hourly rate versus apayment set forth, it's still a hourlyrate.(T. 43).

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The claimant continued:

I don't understand where you get thecommission pay, because it's all hours. It'sall hours and whether it's overtime orregular time and the rate of pay is set byJohn Eddleman. It's just not everybody'snorm. Eight dollars, ten dollars an hour,when you punch a time clock. If you doovertime, it's 15 dollars an hour. That'sthe rate of pay that was set by him and it'shours that's set forth on paper. I don'tunderstand where you get the commission payfor hours.

Yes. If you build a building and theoutcome of it says this, the interior worksas this, they sign their checks to paycommission, but if you go back and look atthe body of the work that took place to buildthat, you see the right one.(T. 48).

The testimony of the claimant reflects that respondent #1 has operations at two (2)

locations, Exit 63 where the main office and the truck wash is located, and where the work-

release individuals get dropped off. The other location is at Exit 71, which is the last Arkansas

exit before entering Missouri. The claimant described the Exit 71 location as the salvage

location, adding:

It's one mile away from Carmack, whichhas a truck stop store, and it's right besidethe interstate.(T. 49).

The testimony reflects that salvage vehicles are taken to the Exit 71 location and that there is a

shop there also.

The claimant described that the Lull or Skytrak as a diesel powered large outdoor

industrial forklift that is used to move large objects. At the time of the March 28, 2015, accident,

the Lull was being used to remove suspension and rear end of a diesel truck, which claimant

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estimated to weight approximately 3,000 pounds. The claimant confirmed that in order to enter

the fence he had to enter a specific code on the keypad.

The claimant concedes that to his knowledge, the only people that would have been eye

witnesses to the entire event of the March 28, 2015, accident were Mr. Marshall, Mr. Villagrans,

and Mr. Eddleman. The claimant testified regarding the extent of the instructions he received

from Mr. Eddleman with respect to the work at the Exit 71 location:

No. The extent of the instructions thatmorning was to go pick something up, and Ibelieve it was at Fasco. I'm not for sure, Ithink, it was floor dry, to pick something upand take those work-release inmates downthere. The extent of my phone call was, Ican't take them and drop them off. That's aviolation of the work-release law here in thestate -- Arkansas Department of Corrections. You get inmates that take off all thetime.(T. 52-53).

The claimant’s testimony reflects that he was told by Mr. Eddleman that the work-release

inmates were going to move some rear ends around and clean up.

The claimant testified that Mr. Eddleman arrived with hamburgers while Mr. Marshall

was operating the Lull and in the process of moving the rear end and suspension of a diesel truck.

The claimant’s testimony reflects, regarding the exchange by Mr. Eddleman at the time:

No, sir. He said that -- he said, "I canshow you a way faster to do that. Armondo,Billy, take those chains -- take that chainoff." And we went to take it off, and then,we got out of the way. (T. 56).

The claimant estimates that he was 20 to 30 feet away when he was struck. The claimant offered

that Mr. Villagrane was standing shoulder-to-shoulder from where he was going at the time he

was struck. The claimant testified that he was not eating a hamburger at the time of the accident,

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and noted that his hamburger was located in his pocket when his coat was cut off of him at the

hospital. The claimant asserts that eating the hamburger was not on his mind, but rather he was

trying to get Mr. Villagrane away from the incident.

The claimant provided a description of where he was hit by the piece of metal during the

March 28, 2015, accident:

It hit me flat right here. You can seethe scar at the top, it cut my eye, I can'tfeel this one, it crushed my sinuses. It hitme here. The metal was shaped like this,(witness indicating). If it would have hitme here, it would have killed me, (witnessindicating).(T. 59).

The claimant described the object as hitting him on the left side of his face. (T. 66). The

claimant noted, with respect to the shape of the piece of metal that hit him, that cross members

on a diesel truck are shaped like a C. The claimant continued:

That was a guesstimate. I don't remember,what -- when he wedged those forks and that'swhen everything goes crazy for me, because Igot hit. (T. 59).

The claimant acknowledged that he did not see the object coming at him nor did he actually see

the piece of metal afterwards. The claimant added that something broke and hit him in the face.

During redirect examination the claimant testified that at the time of his March 28, 2015,

accidental injury, he had Mr. Villagrane attempting to get him out of the way, adding:

I was more worried about him. He waseating a burger, which shows him not to beworried, because he's never seen anything,you know, happen like that. I was worriedthat somebody might get hurt; so, I wasgetting him away.

John was secured on the other side of

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his pickup truck. Harold Marshall was in theLull surrounded by a cage.(T. 85).

The testimony of the claimant reflects that tools used in the discharge of his duties

belonged to respondent, as well as the service vehicle he drove and the telephone insuring his

availability 24-hours on-call. The claimant was not available to perform work for employers

other than respondent.

Tiffany Alison, a resident of Labanon, Missouri, testified that she is employed as a

secretary at Brand Law Firm and working toward becoming a court reporter. Ms. Alison testified

regarding the period of time that she was employed by respondent #1, which was from May 2012

until March 2015:

I started out as a secretary and whenevermy employment ended, I was Office Manager.(T. 96).

The testimony of Ms. Alison reflects that in the afore capacity she prepared the payroll for

respondent #1, which included the period during the claimant’s March 28, 2015, accident. Ms.

Alison testified that she was supervised by Mrs. Leah Eddleman, the wife of John Eddleman.

Ms. Alison testified that she recalled that the claimant was a work-release employee of

respondent #1, and at some point got out of work-release and became a full time mechanic for

respondent #1. Ms. Alison noted that hourly employees of respondent #1 punched the time

clock, however, mechanics were not hourly employee. Ms. Alison testified that the claimant was

an employee of respondent #1. Ms. Alison’s testimony reflects that she never gave the claimant

a 1099 Form, but rather was furnished with W-2s. Regarding the claimant’s hours of work

during his employment with respondent #1, Ms. Alison testified:

He worked Monday through Friday 8:00 to

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5:00, I know. Saturday, I know he went in at8:00, but I can't recall if he got off at12:00 or at 5:00 or something. I don'tremember, and then, he was on call 24/7.(T.98).

Ms. Alison testified that the clamant’s supervisor was John Eddleman. Ms. Alison offered that

Mr. Eddleman was aware that the claimant supervised work-release inmates. Ms. Alison’s

testimony reflects that at the time of the claimant’s March 28, 2015, injury respondent #1 did not

employ another mechanic with a driver’ license.

Ms. Alison testified that at one period of time the claimant’s fiancé, who later became his

wife, worked at respondent #1. Ms. Alison acknowledged that she and Dawn Lovell became

friends, and maintained the friendship. Ms. Alison testified that she learned of the claimant’s

injury on the day of the accident from Dawn. Ms. Alison testified regarding developments at

respondent following the claimant’s March 28, 2015, accident:

I'm trying to remember. It wasn't longafter. We were only -- I was only there acouple of days, maybe two or three, before itclosed for a day or two.(T. 100).

Ms. Alison’s testimony reflects that immediately after that her employment was terminated by

Mr. Eddleman.

During cross examination, Ms. Alison acknowledged that when someone would call the

claimant was dispatched to the service calls by someone in the office. Ms. Alison testified that

the claimant did not have the option to reject a service call, adding:

No. We had to take all calls. I mean,sometimes there were a lot and we had to tellthem it would be two hours before he gets toyou or three hours and if they decided theydidn't want us, but no, we couldn't turn

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anybody away. (T. 102).

Ms. Alison confirmed that there are two (2) physical locations for respondent #1. The

office and dispatch center is located at the Exit 63 site. The other location, where the salvage

yard is lodged, is at Exit 71. Ms. Alison further added regarding the claimant’s activities:

No, he could never sit. If there wasn't aservice call, he was to be working orcleaning something.

Well, yeah, he could go to lunch -- eatlunch, but most of the time, he stayed sobusy that he would go through a drive-throughon his way and eat it in the truck.(T. 103).

Ms. Alison testified regarding her observation of the activities she observed the claimant

preforming:

He would help the truck wash employeeswash the trucks, and clean his own personalservice truck. He helped do the -- my mind just went blank -- the inventory. There were several things he'd help to doaround.(T.107).

As far as observing the claimant supervise work-release employee, Ms. Alison offered:

Yes and no. If John had to leave the 63location, then, somebody had to be there towatch them out in the yard; and so, he wouldwatch them there. And then, like at 71, hewould watch them, but I wasn't there at71.(T. 107).

Dawn Marie Lovell testified that she and the claimant were married on April 12, 2016,

approximately one year following the claimant’s March 28, 2015. Mrs. Lovell was employed by

respondent #1 from March 2013 through November 2013, as a secretary in the office. Mrs.

Lovell testified that she got her accounting degree in 1991, prior to employment by respondent

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#1. The testimony of Mrs. Lovell reflects that she was aware of the accounting practices at

respondent #1:

I was a secretary. I did the invoices,payroll, ordering parts.(T. 109).

Mrs. Lovell testified that she did not expect to find a 1099 Form for the claimant:

Because he had a weekly payroll check andhe had hourly wages and the commission-paidwages on his check and he had stuff held outof it, life insurance, and uniforms.

Yes, if he wasn't considered an employee,he would get a commission -- or would get a1099.(T. 111-112).

Mrs. Lovell’s testimony reflects that the claimant was employed by respondent #1 as a

diesel mechanic. Mrs. Lovell testified that regarding the claimant’s work activities from her

observations of the records during her employment:

He would help with inventory. He didtires. They did maintenance on theirpersonal Daddy Rabbit vehicles, you know,like the ones that they drove. (T. 112).

Mrs. Lovell’s testimony reflects that she received a telephone call from of the secretaries

at Great River Medical Center on March 28, 2015, that the claimant had been in an accident.

Mrs. Lovell testified that once she arrived at the hospital she was in an area such that she could

overhear the conversation of Mr. Eddleman regarding the claimant:

He was telling the doctors and nurses thathe needed a drug screen for workman's compbefore --

John Eddleman was telling the nurses anddoctors that he needed a drug screen forworkman's comp before they could airlift him,because he had to have it for the workman's

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comp, and they came in and handed me a cup tohelp him and when I told the nurses it wastheir job, "Give him a cup." They got thesample.(T. 114).

Mrs. Lovell continued, regarding the presence of workers’ compensation insurance by respondent

#1:

Yes. When I got to the hospital and theyasked me to help check him in, because, youknow, he couldn't speak to them and hecouldn't talk to the secretary. I went tothe front and I had his wallet and I waschecking him in and John was there and hekept telling them, "It's workman's comp. It's workman's comp. My wife is coming withthe card."

Not -- no, I mean, he just was over andover repeating that it was workman's comp andthat Leah, his wife, was coming with theworkman's comp card.(T. 115).

Regarding the designation of the claimant’s earnings in the records of respondent #1, Mrs.

Lovell’s testimony reflects:

He was on both. He was on hourly andcommission pay depending on what he done.

No, he was hourly paid if he worked in theshop, if he did other things around thesalvage yard, it was on John's discretionwhether he was paid hourly or what the hourlyrate was.

No, that's what John would tell us when wewould ask him, "What does he get paid for?" And John would tell us. (T.119).

The record reflects the presence of financial documents issued by the respondent to the

claimant, to include W-2 forms for the year 2014 and 2015, as well as a series of pay stubs

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covering the period April 17, 2014 through April 9, 2015. (CX #1, p. 3-11). The evidence in the

record also reflects the presence of an Invoice Sheet generated by respondent #1 regarding

payment arrangements for the claimant. (R1,X#1). The March 28, 2015, hospital admission

record of Great River Medical Center regarding the claimant reflects that the injuries he suffered

were the product of his employment with respondent.(CX #1, p. 12-17). Further, the hospital

records that due to the injuries being identified by respondent as work-related, a drug screen was

requested and obtained. (CX #1, p., 22). Finally, the record reflects the presence of the

handwritten statements of the two (2) work-release individuals present at the time of the

claimant’s March 28, 2015. (R1, X#3-4) accident.

After a thorough consideration of all of the evidence in this record, to include the

testimony of the witnesses, review of the medical records and other documentary evidence,

application of the appropriate statutory provisions and applicable case law, I make the following:

FINDINGS

1. The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.

2. While employing the requisite number of employees respondent #1 did not have

in place a policy of workers’ compensation insurance on March 28, 2015, pursuant to Ark. Code

Ann. §11-9-401 (a) (1) (Repl. 2012), nor was it an authorized self-insured employer in

accordance with Arkansas Workers’ Compensation Commission Rule 099.05.

3. On March 28, 2015, the employee-employer relationship existed between the

claimant and respondent #1, during which time the claimant sustained an injury arising out of

and in the course of his employment while performing employment services.

4. Respondent #1 has controverted this claim in its entirety.

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CONCLUSIONS

It is undisputed that the claimant was an employee of respondent #1 on March 28, 2015,

and that on that date he sustained injuries as a result of an accident. The limited issues before the

Commission at this juncture are those of compensability and employment relationship. The

claimant contends that he was an employee of respondent #1 on March 28, 2015, and was

performing employment services when he suffered injuries as a result of a specific

incident/accident within the course and scope of his employment. Respondent #1 maintains that

at the time of the March 28, 2015, accident the claimant was not performing employment

services.

The present claim is one governed by the provisions of Act 796 of 1993, in that the

claimant asserts entitlement to workers’ compensation benefits as a result of injuries sustained

subsequent to the effective date of the afore provision.

Employment Relationship

Ark. Code Ann. §11-9-102 (11) (Repl. 2012), “Employment” provides, in pertinent part:

(A) Every employment in the stat in which three (3) or moreemployees are regularly employed by the same employer in thecourse of business [.]

Ark. Code Ann. §11-9-401 (Repl. 2012), Employer’s liability for compensation, provides, in

pertinent part:

(a)(1) Every employer should secure compensation to itsemployees and pay or provide compensation for their disability ordeath from compensable injury arising out of and in the course ofemployment without regard to fault as a cause of the injury.

* * *

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(b) The primary obligation to pay compensation is upon theemployer, and the procurement of a policy of insurance by anemployer to cover the obligation in respect to this chapter shall notrelieve the employer of the obligation.

There is not a dispute that respondent #1 employed more than the requisite number of

employees to bring its operation within the purview of the Arkansas Workers’ Compensation

Act. The evidence reflects that respondent #1 employed office personnel and mechanics, as well

as work-release individual on a regular basis in the course and scope of its operations.

Respondent #1 conducted business at two (2) locations. Nevertheless the evidence preponderates

that at the time of the March 28, 2015, accident at the salvage yard or Exit 71 location,

respondent #1 did not have a valid policy of workers’ compensation insurance in place, nor was

it an authorized self-insured employer pursuant to Arkansas Workers’ Compensation

Commission Rule 099.05.

Earlier in the claim, respondent #1 advanced the position that the claimant was an

independent contractor and not an employee. Factors to consider in determining whether one is

an employee or independent contractor included: a) the extent of control which, by the

agreement, the master may exercise over the details of the work; b) whether or not the one

employed is engaged in a distinct occupation or business; c) the kind of occupation, with

reference to whether in the locality, the work is usually done under the direction of the employer

or by a specialist without supervision; d) the skill required in the particular occupation; e)

whether the employer or the workman supplies the instrumentalities, tool, and the place of work

for the person doing the work; f) the length of time for which the person is employed; g)the

method of payment, whether by the time or by the job; h) whether or not the work is a part of the

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regular business of the employer; i) whether or not the parties believe they are creating the

relation of master and servant; and j) whether the principal is or is not in business. Cloverleaf

Express v. Fouts, 91 Ark. App. 4, 16-17, 207 S.W.3d 576, 583, (2005). In the present claim the

evidence preponderates that John Eddleman, the owner of respondent #1, set the claimant’s hours

and rate of pay. Respondent #1 provided the tools and equipment by which the claimant

performed his job duties, to include the vehicle and telephone, and supervised the claimant. The

claimant has sustained his burden of proof by a preponderance of the evidence that he was an

employee of respondent #1 at all times pertinent, to include March 28, 2015, at the time of his

accidental injuries.

Compensability

The occurrence of the March 28, 2015, accidental injury to the claimant is not disputed.

Ark. Code Ann. §11-9-102 (4)(A) (Repl. 2012), set forth the definition of a compensable injury:

(i) An accidental injury causing internal or external physical harmto the body . . . arising out of and in the course of employment andwhich requires medical services or results in disability or death. Aninjury is “accidental” only if it is caused by a specific incident andis identifiable by time and place of occurrence [.]

The compensable injury must be established by medical evidence supported by objective

findings. Ark. App. Code §11-9-102 (4)(D) (Repl. 2012). “Objective findings” are those

findings which cannot come under the voluntary control of the patient. Ark. Code Ann. §11-9-

102 (16) (a) (i) (Repl.2012). In the present claim, the record reflects evidence of the injuries

suffered by the claimant in the March 28, 2015, accident, to include medical reports and

photographs of the physical injuries.

In order for an accidental injury to be compensable, it must arise out of and in the course

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of employment. A compensable injury does not include an injury inflicted upon the employee at

a time in which employment services are not being performed. Ark. Code Ann. §11-9-102

(4)(B)(iii). An employee is performing employment services when he or she is doing something

that is generally required by his or her employer. Dairy Farmers of America, Inc. v. Coker, 98

Ark. App. 400, 255 S.W.3d 905 (2007).

The credible evidence reflects that at the time the clamant sustained his March 28, 2015,

injuries, he was attempting to move a fellow employee, Armondo Villagrana, out of harms way,

as the rear suspension of a diesel truck was being moved. The claimant was struck on the left

side of his face/head by a piece of metal. In Office of Emergency Services v Home Ins. Co., 2

Ark. App. 185, 618 S.W.2d 573 (1981), the court noted the following passage by Professor

Larson:

Under familiar doctrines in the law relating to emergenciesgenerally, the scope of an employee’s employment is impliedlyextended in an emergency to include the performance of any actdesigned to save life or property in which the employer has aninterest. . .

It is too obvious for discussion that emergency efforts to savethe employer’s property from fire, theft, runaway horses,destruction by strikers, or other hazards are within the course ofemployment. The fact that the rescue effort takes place outside ofworking hours does not detract from its work-connected status. Thus, an employee who lived near the employer’s plant, and whorand to fight a fire in the middle of the night, was held covered, aswas a security guard who suffered a fatal heart attack whilefighting a fire, rather than simply call “911".

Arthur Larson, Larson’s Workers’ Compensation Law, §28.01 (2009) (footnotes omitted). It is

undisputed that at the time Mr. Eddleman, the claimant’s supervisor, arrived he furnished

hamburgers to those individuals working for lunch, the evidence preponderates that the claimant

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was not eating lunch or on his lunch break at the time of his injury. Indeed, the evidence reflects

that a hamburger was removed from the claimant’s clothes at the hospital following the accident.

The evidence preponderates that at the time of he claimant’s injury he was advancing the interest

of respondent #1, such that his injury was sustained within the course and scope of his

employment while performing employment services. Gaskins v. Jeff Minner Trucking, 2010 Ark.

App. 471. The claimant has sustained his burden of proof by a preponderance of the credible

evidence that he suffered a compensable accidental injury arising out of and the course of his

employment. Respondent #1 has controverted the compensability of this claim in its entirety.

AWARD

The claimant herein having been found to be an employee of respondent #1, who was

performing employment services at the time he sustained compensable accidental injuries arising

out and in the course of his employment while performing employment services is entitled to the

payment of workers’ compensation benefits, both medical and indemnity, as well as controverted

attorney fees. Issues of the amount and duration of the afore benefits are expressly reserved.

This award shall bear interest at the legal rate, pursuant to Ark. Code Ann.§11-9-809,

until paid.

If they have not already done so, the respondents are directed to pay the court reporter

fees and expenses within thirty (30) days of receipt of the invoice.

IT IS SO ORDERED.

____________________________________________________ Andrew L. Blood, ADMINISTRATIVE LAW JUDGE

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