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Wayne Holden & Co., Inc. v. Waggoner

Court of Appeals of Arkansas

June 8, 2016

WAYNE HOLDEN & COMPANY, INC. APPELLANT
v.
TYLER WAGGONER (DECEASED) APPELLEE

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G400368]

          Barber Law Firm, PLLC, by: Gail Ponders Gaines, for appellant.

          Moore, Giles & Matteson, L.L.P., by: Greg Giles, for appellee.

          Whiteaker and Brown, JJ., agree.

          BRANDON J. HARRISON, Judge.

         Tyler Waggoner died in a motor-vehicle collision carpooling home from work in 2013. The Arkansas Workers' Compensation Commission (Commission) held that Waggoner sustained a compensable injury while performing employment services and awarded benefits to his minor child. His employer, Wayne Holden & Company, Inc., (Holden) appeals the Commission's decision. We reverse the Commission's decision and dismiss the case because substantial evidence does not support the conclusion that Waggoner was advancing his employer's interests when he was fatally injured.

         I. Facts

         The material facts in this case are largely undisputed. Waggoner, a resident of Texarkana, Texas, worked as a crew leader for Holden; his job was to lay new or replacement gas lines. Holden's main offices are located in Texarkana, Arkansas. But Holden performs work on natural-gas pipelines for different companies across numerous cities and states, including Shreveport, Louisiana. The parties do not dispute that Waggoner was assigned to work primarily in and around Shreveport, Louisiana.

         On 26 November 2013, Waggoner clocked in at his usual time of 7:00 a.m. at the company office in Shreveport. He then left with his crew in a company truck to do work replacing or laying new gas lines for one of Holden's clients, Centerpoint Energy. That work stopped early in the day because of rain. Waggoner and his crew returned to the Shreveport company office and clocked out around 11:00 a.m. After clocking out, Waggoner left the Shreveport office with two co-workers in a vehicle driven by another co-worker, Kendrick Blackmon. A distracted driver rear-ended Blackmon's vehicle at a new stoplight on Highway 71 around 12:23 p.m. in Caddo Parrish, Louisiana, killing Waggoner. Testimony during the administrative hearing revealed that it took around twenty-five or thirty minutes to reach Caddo Parrish from the company office in Shreveport, and about an hour or hour and a half to reach Texarkana using Highway 71. The vehicle in which Waggoner was riding was Blackmon's personal vehicle, not a company-owned truck.

         Witness testimony given during the administrative hearing about a $50 per diem Holden's Texarkana-based employees received is critical to the Commission's decision and our review of it.

         A. Kara Warren's Testimony

         Waggoner's partner, Kara Warren, testified that when his employment with Holden began in 2011, Waggoner rode to work in Shreveport in a company van. During that time he was not paid a per diem amount. Starting sometime in 2012, Holden changed its policy and discontinued using a company vehicle to transport employees from Texarkana to Shreveport. Warren explained that when the Texarkana-based employees started to drive their own vehicles,

[m]ost of the time, they got together and week by week, they'd use somebody's car. They'd give that person ten or fifteen dollars a day for gas, and they'd get together and drive to Shreveport and drive back.

Warren also said that when Waggoner worked in Shreveport, he returned to Texarkana each night and received a $50 per diem. And when Waggoner worked in Mena, Arkansas, he chose to spend the night instead of driving back and forth and received close to $75 per diem per day because Mena was farther from Texarkana, according to Warren. On cross-examination, Warren agreed that Waggoner did not have to turn in receipts or anything else showing how he spent the per diem money.

         B. Wasey Kyle Davis's Testimony

         Wasey Kyle Davis, a Holden superintendent, confirmed that Waggoner "worked consistently" at the Shreveport site. When questioned about the policy change, Davis explained that the company decided that it would rather pay per diem than transport employees in a van because people would not arrive to the van on time. Davis said that employees were never compensated for time riding in the van. According to Davis, the per diem was "motel money." When Davis worked out of town in Oklahoma, he and three others would use the money to get a motel room rather than commute from Texarkana. Davis testified that he drives a company truck and has a company credit card he uses to buy fuel, and he still receives a per diem. Davis also explained the per diem this way:

It don't matter what they [Holden's employees] do with it. I mean, they can go spend it on lunch, they can spend it on supper, they can take their family out to eat, just whatever.

Waggoner was not subject to being on call while he was traveling to and from work, according to Davis. Waggoner did not receive a per diem for the days he did not work or when he worked in Texarkana.

         C. Quintin Helms's Testimony

         Quintin Helms was a fellow passenger in Blackmon's vehicle the day the accident happened. Helms testified that after they signed out around 11:00 a.m. that day, they went by a convenience store before heading home to Texarkana. Helms agreed that he was not "on the job" at the time of the accident and was not being paid for his time when the accident occurred. According to Helms, he and his co-workers would carpool, and Holden would "pay us per diem for driving." This colloquy occurred during cross-examination:

Holden's attorney: As you understood it, why were they ...

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