Brotherton v. White River Area Agency on Aging

220 S.W.3d 219, 93 Ark. App. 432
CourtCourt of Appeals of Arkansas
DecidedDecember 14, 2005
DocketCA 05-476
StatusPublished
Cited by7 cases

This text of 220 S.W.3d 219 (Brotherton v. White River Area Agency on Aging) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brotherton v. White River Area Agency on Aging, 220 S.W.3d 219, 93 Ark. App. 432 (Ark. Ct. App. 2005).

Opinions

Wendell L. Griffen, Judge.

Glenda Brotherton appeals from the denial of workers’ compensation benefits, arguing that the Workers’ Compensation Commission erred in determining that she was not performing employment services for appellee White River Area Agency on Aging (“the agency”) when she was injured. Because we agree, we reverse and remand for an award of benefits.

Brotherton was employed by the agency and by Mary Jane Foster. Her duties for each involved serving as a personal-care aide for elderly or disabled individuals who lived with Foster. In total, five elderly or disabled women lived with Foster, who was paid by the women’s families to provide twenty-four-hour care to the women. Foster is also a personal-care aide employed by the agency; four of Foster’s five clients were agency clients, as well. The agency paid Brotherton to provide three hours of personal-care services per client to two of Foster’s clients, one of whom was Maxine Raines. The duties to be performed for each client were prescribed pursuant to an agency care plan, that included feeding, toileting, bathing, grooming, dressing, meal preparation, and housekeeping services. Raines, in particular, was bedfast, requiring Brotherton to bathe her in her bed and to frequently assist her in using the toilet.

Although the normal routine for an agency personal-care aide is to go to a client’s home, help that client for a specific number of hours, and then go to another home, the agency knew that was not the routine that Brotherton and Foster kept. As established by the testimony of Brotherton, Foster, and Leanne Kronnister, the agency’s human-resources director, the agency knew that Brotherton also worked for Foster. The agency also knew that instead of working two successive three-hour shifts in which care was devoted exclusively to a “scheduled” client during each three-hour period, Brotherton arrived at Foster’s home at 8:00 a.m. and worked for six hours. Brotherton was scheduled to work for Raines from 10:00 a.m. until 1:00 p.m. However, the agency knew that at any given time on her shift, Brotherton performed services for any of Foster’s clients who needed assistance, including Raines.

Brotherton and Foster normally bathed the clients between 8:00 a.m. and 10:00 a.m. It is undisputed that at approximately 9:00 a.m. on July 16, 2002, Brotherton and Foster were in the process of bathing clients when Brotherton assisted Raines in using the toilet.1 Raines began to slip as Brotherton moved her from her bed to a toilet at the end of the bed; as Brotherton lifted Raines onto the toilet, she experienced pain and a burning sensation in her neck. Brotherton experienced more severe pain when she again lifted Raines from the toilet and returned her to her bed. Broth-erton immediately reported her injury to Foster.

Brotherton reported the injury to the agency on July 29, 2002, indicating that the injury occurred at 9:00 a.m. when she was helping Raines to use the toilet. Brotherton subsequently had surgery on her back. The agency controverted the claim, asserting that Brotherton was working for Foster when the injury occurred.

After a hearing, an Administrative Law Judge (ALJ) concluded that Brotherton sustained a neck injury at approximately 9:00 a.m. on July 16. In addition, based on the abnormal MRI findings and the doctor’s records indicating that he removed disc fragments during surgery, the ALJ concluded that Brotherton established the existence of her injury by objective medical findings. The ALJ further found that the injury was causally related to the incident involving Raines.

Nonetheless, the ALJ concluded that the injury was not compensable because Brotherton was not performing employment services within the time and space boundaries of her employment with the agency because her injury did not occur within the time period that she was scheduled to work for Raines. Noting Kronnister’s testimony indicating the agency’s knowledge of the “unique” circumstances of Brotherton’s employment situation, and because the agency offered no evidence that it lacked knowledge of the precise nature and timing of the various tasks performed by Brotherton in Foster’s home, the ALJ concluded that the agency knew or should have known that Brotherton and Foster had a “set routine” by which they did not on July 16 follow the “precise schedule” supplied by the agency.

The ALJ also inexplicably stated that had Brotherton become injured while assisting Raines to the toilet between 10:00 a.m. and 1:00 p.m., her injury “would almost surely” have been compensable and that, had she been bathing Raines when she was injured, the injury might have been compensable, notwithstanding that she was scheduled to work from 10:00 a.m. to 1:00 p.m. Because he found that toileting occurred throughout the course of the day, the ALJ determined that it was a service that could be performed for either Foster or the agency. However, the ALJ concluded that Brotherton’s act of assisting Raines to the toilet at 9:00 a.m. was an employment service performed for Foster, not the agency. Accordingly, he denied benefits. The Commission affirmed and adopted the ALJ’s findings.

Brotherton now argues that the Commission erred in determining that her injury was not sustained in the course of her employment with the agency. In reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Whitlach v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Id. When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Id. The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). The Commission may accept or reject medical opinions and determine their medical soundness and probative force. Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).

A claimant may simultaneously work for multiple employers. Cook v. Recovery Corp., 322 Ark. 707, 911 S.W.2d 581 (1995). If an employee is performing for and is under the control of two employers at the same time, then liability for workers’ compensation benefits is joint. Id. However, if the work is separable, then the employer for whom the employee was providing services at the time of the injury is liable. Id.

A compensable injury is an accidental injury causing internal or external harm that arises out of and in the course of employment. Ark. Code Ann. § 11-9-102(4)(A)(I) (Supp. 2005).

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Brotherton v. White River Area Agency on Aging
220 S.W.3d 219 (Court of Appeals of Arkansas, 2005)

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Bluebook (online)
220 S.W.3d 219, 93 Ark. App. 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brotherton-v-white-river-area-agency-on-aging-arkctapp-2005.