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Kroger Limited Partnership I and Sedgwick CMS v. Bess

Court of Appeals of Arkansas, Division I

September 12, 2018



          Barber Law Firm PLLC, by: Karen H. McKinney, for appellants.

          Mickel & Chapman, by: Thomas W. Mickel and Brooklyn R. Parker, for appellee.


         This is an appeal from the September 27, 2017 decision of the Arkansas Workers' Compensation Commission ("Commission") affirming the determination of the administrative law judge ("ALJ") that Michael Lawson Bess sustained a compensable injury. The employer and insurance carrier appellants contend that no substantial evidence exists to support the Commission's decision. We affirm.

         I. Facts

         When Bess sustained his injury on December 25, 2016, he was sixty-six years old and had been employed with the Kroger pharmacy for about three years. Bess worked as a staff pharmacist, and on the day of the injury his employer required him to go to work to check on the pharmacy after the security alarm sounded. Bess left his home in Conway and drove to the pharmacy, which is located in Russellville. The pharmacy is a free-standing building located in the Kroger grocery store parking lot. Bess parked in the space directly in front of the pharmacy, sat in his car for a few minutes, and he observed that there was no sign of forced entry and that he could not hear an alarm sounding. Bess exited the vehicle and fell while climbing the curb, breaking his left leg. Bess was taken by ambulance to the hospital, and he was hospitalized for twenty-one days. An orthopedic surgeon placed four screws and a rod in his leg, and after his hospitalization Bess completed an eleven-day inpatient rehabilitation program. Following the incident, appellants denied Bess's request for workers'-compensation benefits because they did not consider Bess to have been performing employment services when he was injured. Bess initiated a claim for benefits with the Commission.

         On August 15, 2017, a hearing was held before the ALJ to determine the compensability of Bess's claim arising out of the December 25, 2016 job injury. At the hearing, Bess testified in pertinent part that part of his job as a staff pharmacist is ensuring that the premises are secure and "making sure there is no pilfering or stealing[.]" Bess testified that on Christmas day in 2016, he received a voicemail message from the Kroger Central Alarm Control ("KCAC") informing him that the alarm had sounded at the pharmacy. Bess advised KCAC to send the police and to ask the police if any doors or windows had been broken. KCAC explained that the police would not divulge that information, which Bess thought was unusual. A little later, Bess received a call from Scott Carpenter, an asset-protection manager for Kroger, who told him to go check on the store, and Bess drove to Russellville to do so. Bess testified that "I felt that I needed to comply with Mr. Carpenter's request because that is my job. I am supposed to take care of the pharmacy and assumed whenever security or loss prevention called that we are required to take care of that. I thought he had apparent authority to tell me what to do." Bess testified that he had been required to check on the pharmacy when an alarm sounded once before the incident on Christmas day. On the day Bess injured his left leg, he arrived in the parking lot and did not hear the alarm sounding, nor did he observe any signs of forced entry. He sat in his car finishing a cigarette and then got out of his car and approached the front door to unlock it. Bess stated that he stepped up on the six-inch curb with his right foot and then fell and broke his left leg. The security video of Bess's fall was admitted and showed Bess stepping up onto the curb with his right foot and immediately falling down. Bess admitted that in the past he had issues with his right knee, he had used a cane, and that sometimes his right knee felt weak and as though it was going to "go out on me." Bess stated that he had not had any treatment for his right knee, and it had been ten years since he had talked to a doctor about his knee. Bess also stated that his knee did not give out on him that day, that he had not had any trouble before the fall, and that three entrances to his home involved climbing and descending stairs.

         Scott Carpenter described the protocol regarding the sounding of the security alarm. Carpenter explained that when the alarm sounds, someone from the KCAC calls the employees on the call list

to make contact with someone to go to that location if they feel it is necessary for someone to go. The judgment of whether someone should go is up to the call center people. They decide if there's someone that needs to be called to be notified or if they feel that someone may or may not need to go to the store.

         Carpenter testified that on December 25, 2016, KCAC contacted him and told him that someone needed to go check on the store and that police had arrived at the scene. Carpenter asked if there had been a break-in, but KCAC was unable to give him that information. Carpenter testified that though he was not Bess's supervisor and had no authority over him, he asked Bess to check on the store, and Bess agreed to go.

         Steve Depner, the Kroger pharmacy manager since 2008, described Bess as a "co-manager" or "staff pharmacist." Depner explained that the Russellville location is a "unique situation" because the pharmacy is free-standing and not contained within the grocery store.

         In the September 27, 2017 opinion, the ALJ found that Bess's injury was a nonidiopathic compensable injury arising out of the course and scope of his employment. Specifically, the ALJ found that regarding whether Bess was performing employment services at the time of the injury, "it is clear that on a normal day, the claimant would not be actually at work until he got in the store, the situation was different on Christmas Day. The store was closed, and a burglar alarm went off." The ALJ relied on Carpenter's testimony that KCAC "decides if . . . they feel if someone may need to go, that they call the shots, and that they needed someone to go." The ALJ found that, based on KCAC's decision, Carpenter and Bess agreed that Bess would go to the store. The ALJ determined that Bess had driven to the store to check the alarm on a previous occasion, and that he felt his job description included preventing and reporting robbery. In light of these facts, the ALJ found that Bess was performing employment services when he traveled from Conway to Russellville to check on the pharmacy. The ALJ also found it "important that the claimant had previously made the same trip because he felt that it was part of his job and he was never instructed to not check on the store if he got a call in regard to the alarm."

         The ALJ also determined that Bess's injury was nonidiopathic, and therefore compensable. Specifically, the ALJ found that though Bess had previously had issues with his right knee, the claimant credibly testified that he did not suffer problems going up and down stairs on Christmas Day. The ALJ noted that when Bess broke his left leg and was admitted to St. Mary's Hospital in Russellville, his ...

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