WAYNE HOLDEN & COMPANY, INC. APPELLANT
TYLER WAGGONER (DECEASED) APPELLEE
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Law Firm, PLLC, by: Gail Ponders Gaines, for appellant.
Giles & Matteson, L.L.P., by: Greg Giles, for appellee.
Whiteaker and Brown, JJ., agree.
BRANDON J. HARRISON, Judge.
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.
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
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.
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
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
[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.
Wasey Kyle Davis's Testimony
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
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,
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.
Quintin Helms's Testimony
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
Holden's attorney: As you understood it, why were they