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Pro Clean Janitorial Servic v. Hinkle1/30/2002
NOT DESIGNATED FOR PUBLICATION
Appellee A.J. Hinkle brought a workers' compensation claim against appellant Pro Clean Janitorial Service, alleging that he suffered a compensable injury to his lungs when he inhaled toxic chemicals while cleaning floors on August 25, 1999. The appellant controverted the claim, and after a hearing the Workers' Compensation Commission adopted the opinion of the Administrative Law Judge finding the injury to be compensable, and awarded medical benefits and attorney's fees. Pro Clean Janitorial now appeals.
For reversal, Pro Clean Janitorial argues that the Commission's decision is not supported by substantial evidence. Specifically, it contends that Mr. Hinkle's alleged injury was not compensable pursuant to Ark. Code Ann. § 11-9-102(5)(B)(iii) (Repl. 1996), because it was inflicted at a time when employment services were not being performed.
Pro Clean Janitorial also argues that because the alleged injury occurred when Mr. Hinkle was performing a task that he was not authorized to perform, it did not arise out of and in the course of his employment as required by Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996). We remand because of factual inconsistencies in the Commission's opinion.
When reviewing a decision 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 affirm if supported by substantial evidence. Welch's Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A decision by the Workers' Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
Mr. Hinkle testified that he began working for Pro Clean Janitorial on May 17, 1999. He was assigned to GNB Technology, where he worked for the entire duration of his employment. Mr. Hinkle stated that his duties included emptying trash, cleaning the locker room and bathrooms, and vacuuming. Another employee worked with Mr. Hinkle, and he was responsible for buffing and waxing floors, and cleaning showers. This employee was initially David Johnson, but he was later replaced by Mr. Hinkle's son, Danny.
Mr. Hinkle testified that, due to complaints about how the showers were being cleaned, he was instructed to find one of GNB's supervisors and have them inspect the showers after each cleaning. On these occasions, the person who cleaned the showers would find Mr. Hinkle, and Mr. Hinkle would inspect them before final inspection by the GNB supervisor. This inspection process continued for about two or three months but was later discontinued.
Mr. Hinkle stated that although it was his son's job to clean the showers, there had been complaints about his son's work. Mr. Hinkle further testified that on several occasions his supervisor, Gene White, told him to do Danny's job. Mr. Hinkle indicated that before his injury occurred he had cleaned the showers with the same chemicals several times without incident.
On the date of the injury, Mr. Hinkle applied the chemicals and began scrubbing the shower floor. While scrubbing, he noticed white smoke and started coughing. His mouth and nose were burning, and he was having difficulty breathing. Mr. Hinkle left the shower area and washed his face at the sink, at which point the smell was "getting really bad." He w
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