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Continental Construction Co. v. Nabors

Court of Appeals of Arkansas, Division II

February 4, 2015

CONTINENTAL CONSTRUCTION COMPANY and TRAVELERS INDEMNITY COMPANY, APPELLANTS
v.
RONNIE J. NABORS, APPELLEE

Page 763

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION. No. F903914.

Spicer Rudstrom, PLLC, by: Bradford J. Spicer and Catherine Corless, for appellants.

Orr Willhite, PLC, by: M. Scott Willhite, for appellee.

LARRY D. VAUGHT, Judge. WHITEAKER and HOOFMAN, JJ., agree.

OPINION

Page 764

LARRY D. VAUGHT, Judge

Appellants Continental Construction Company (Continental) and Travelers Indemnity Company (Travelers) appeal from an opinion of the Arkansas Workers' Compensation Commission awarding appellee Ronnie Nabors benefits for an injury he sustained during his employment with Continental. The Commission affirmed and adopted the administrative law judge's decision that Nabors sustained a compensable injury when he slipped on the ice on the morning of March 2, 2009, while walking from the main gate of the construction site to his employer's work trailer prior to clocking in. On appeal, appellants argue that substantial evidence does not support the Commission's finding that Nabors was performing employment services when he was injured. Specifically, appellants argue that the going-and-coming rule precludes recovery because Nabors was injured while walking to Continental's work trailer to clock in for the day. We affirm because substantial evidence supports the Commission's finding that Nabors had already engaged in employment activity by donning his personal protective equipment and swiping an access card to obtain entry to the job site.

On and before March 2, 2009, Nabors worked full-time as an iron worker for Continental, assisting in the construction of a power plant near Blytheville, Arkansas. Continental was one of several subcontractors involved in the project. The site was controlled by the general contractor, Zachary and Dynegy Construction (Zachary), which erected a fence surrounding the job site and controlled entry and exit of all workers through one main gate. In order to enter the gate, Zachary required all workers to don their personal protective equipment and swipe an access card.

Nabors and other employees who were not from the area resided at the Royal Inn in Blytheville, approximately a thirty-minute drive from the construction site. They were paid a per diem in addition to their hourly wages to cover the added expenses associated with living away from home. In order to receive their per diem, employees were required to appear at Continental's work trailer on the job site at 7:00 a.m., even if work was cancelled that day.

On the evening of March 1, 2009, Nabors's supervisor told Nabors that, due to forecasted inclement weather, there may be emergency work that had to be done at the site the next morning and that he should report to work. On March 2, Nabors awoke around 5:00 a.m. and observed a significant amount of snow on the ground. He did not see his supervisor's truck parked outside, leading him to believe that the supervisor had already gone into work. He called his supervisor to see if work had been cancelled but got no response. Nabors drove to the job site and parked outside the front gate. In order to enter the gate, Nabors donned his personal protective equipment and swiped his access card. He then walked to his employer's work trailer, located approximately 200 yards from the main gate. When Nabors was approximately fifty feet from the work trailer, he slipped on the ice, injuring his lower back. The fall took place between 6:30 a.m. and 7:00 a.m. Nabors then proceeded to the work trailer, signed in, and learned that work had been canceled for the day.

Nabors filed a claim for compensation for his injury with the Commission. By agreement of the parties, the primary issue

Page 765

to be determined was compensability. After a hearing, the ALJ issued an opinion finding that Nabors had suffered a compensable injury and awarded him benefits. Continental and Travelers appealed to the Commission. The Commission affirmed and adopted the ALJ's ...


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