author: w .H. “Dub” Arnold, Chief Justice.

text:
    Wendy A. COLLINS v. EXCEL SPECIALTY PRODUCTS and Crawford & Company
    01-820
    69 S.W.3d 14
    Supreme Court of Arkansas
    Opinion delivered March 7, 2002

      Stephen M. Sharum, for appellant.

      Hardin, Jesson & Terry, PLC, by: J. Rodney Mills and J. Leslie Evitts, III, for appellees.
   w .H. “Dub” Arnold, Chief Justice.

Appellant, Wendy Collins, appeals from the decision of the Workers’ Compensation Commission (hereinafter Commission) denying appellant’s claim. The Commission adopted the Administrative Law Judge’s decision finding that appellant was not performing employment services at the time of her injury. The court of appeals, in a 6-3 decision, reversed and remanded this case to the Commission for further consideration of appellant’s claim in light of the court’s recent decision in Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001). Collins v. Excel Spec. Prod., 74 Ark. App. 400, 49 S.W.3d 161 (2001). Appellee Excel Specialty Products petitioned this Court for review from the court of appeals’s decision reversing the Workers’ Compensation Commission. We granted the petition for review. We reverse and remand the Commission’s decision, thereby affirming the court of appeals.

I. Standard of Review

Upon a petition for review, we consider a case as though it had been originally filed in this Court. Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000); Maxey v. Tyson Foods, Inc., 341 Ark. 306, 18 S.W.3d 328 (2000); Woodall v. Hunnicutt Construction, 340 Ark. 377, 12 S.W.3d 630 (2000); White v. Georgia-Pacific Corporation, 339 Ark. 474, 6 S.W.3d 98 (1999); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). We view the evidence in a light most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Id.; Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Pickett, 336 Ark. 515, 988 S.W.2d 3; ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).

II. Summary of Facts and Procedural History

Appellant was employed with appellee, Excel Specialty Products, as a production worker. Her job consisted of carving blocks of beef into beef steaks of sizes by weight as specified by her employer. Her production work included incentive pay for a certain production quota, and the employees on her production fine were required to clock in and out on a time clock. Appellant and her co-workers were given fifteen-minute breaks in the morning and in the afternoon and a thirty-minute lunch break.

On November 2, 1999, sometime between the morning break and the lunch break, appellant left the production line to go to the bathroom for the purpose of urination. Between the production line and the restroom, appellant suffered a fall sustaining a fracture to her right wrist and arm.

The Administrative Law Judge denied appellant’s claim reasoning as follows:

In the present case, the circumstances surrounding the claimant’s alleged injury are not in dispute. The claimant testified that the respondent allowed employees to leave the fine and go to the restroom whenever necessary and without “clocking out.” She stated that the alleged accident and injury occurred after she had left her work station and while she was actually on her way to the restroom to reheve herself.
Clearly, at the time of her alleged accident and injury, the claimant was not engaged in the performance of any employment tasks which she had been specifically assigned by her employer, nor was she engaged in any activity which would directly benefit or advance the interests of her employer. Nor would her actions be considered inherently necessary for the performance of her required tasks. At most, her actions would only indirectly benefit her employer. Under the Court’s ruling the Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), this is not sufficient to case the activity to be considered “employment services.”
Based upon existing precedent, I am compelled to find that the claimant’s alleged accident and injuries occurred at a time when she was not performing “employment services” as required by Ark. Code Ann. § 11 -9 — 102(4) (B) (iii). Therefore, her alleged injury cannot be considered a “compensable injury” within the meaning of the Act.

As previously stated, the Commission adopted the Administrative Law Judge’s decision and the court of appeals reversed and remanded the case for further consideration in light of Matlock, supra. We agree with the court of appeals that the case must be reversed and remanded; however, we hold that the Commission erred in this case in denying benefits to appellant.

III. Employment Services

The pivotal issue presented by this case is whether, pursuant to Act 796 of 1993, codified at Ark. Code. Ann. §§ 11-9-101, et seq. (Repl. 1996, Supp. 2001), appellant was performing employment services when she sustained an injury while on a restroom break at an employer-provided restroom located on the employer’s premises. To evaluate appellant’s claim and the full Commission’s decision, we are called upon to interpret the phrase “in the course of employment” and the term “employment services” as used in Ark. Code Ann. §§ ll-9-102(4)(A)(i) and ll-9-102(4)(B)(iii) (Supp. 2001). When interpreting a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001); Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998).

Act 796 of 1993 made significant changes in the workers’ compensation statutes and in the way workers’ compensation claims are to be resolved. White v. Georgia-Pacific Corp., supra. Claims arising from injuries occurring before the effective date of Act 796 (July 1, 1993) were evaluated under a liberal approach. Eddington v. City Electric Co., 237 Ark. 804, 376 S.W.2d 550 (1964); Ark. Stat. Ann. § 81-1325(b)(4) (Supp.1979). However, Act 796 requires us to strictly construe the workers’ compensation statutes. Ark. Code. Ann. § 11-9-704(c)(3); White v. Georgia-Pacific Corp., supra. The doctrine of strict construction directs us to use the plain meaning of the statutory language. Edens v. Superior Marble & Glass, supra, and Lawhon Farm Servs. v. Brown, supra.

Act 796 defines a compensable injury as “[a]n accidental injury . . . arising out of and in the course of employment. ...” Ark. Code Ann. § 11-9-102(4)(A)(i). A compensable injury does not include an “[ijnjury which was inflicted upon the employee at a time when employment services were not being performed. ...” Ark. Code Ann. § 11-9-102(4)(B)(iii) (emphasis added). However, Act 796 does not define the phrase “in the course of employment” or the term “employment services,” Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). It, therefore, falls to this Court to define these terms in a manner that neither broadens nor narrows the scope Act 796 of 1993. Ark. Code Ann. § 11-9-1001 (Repl. 1996). When the meaning of a statutory term is ambiguous, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000).

Since 1993, we have twice been called upon to construe the statutory language found in sections ll-9-102(4)(A)(i) and 11-9-102(4)(B)(iii). See White v. Georgia-Pacific Corp., supra, and Olsten Kimberly Quality Care, supra. We have held that an employee is performing “employment services” when he or she “is doing something that is generally required by his or her employer. ...” White v. Georgia-Pacific Corp., 339 Ark. at 478, 6 S.W.3d at 100. We use the same test to determine whether an employee was performing “employment services” as we do when determining whether an employee was acting within “the course of employment.” White v. Georgia-Pacific Corp., supra; Olsten Kimberley, supra. The test is whether the injury occurred “within the time and space boundaries of the employment, when the employee [was] carrying out the employer’s purpose or advancing the employer’s interest directly or indirecdy.” White v. Georgia-Pacific Corp., 339 Ark. at 478, 6 S.W.3d at 100 and Olsten Kimberly, supra.

It is well-settled that any interpretation of a statute by this court subsequently becomes a part of the statute itself. Night Clubs, Inc. v. Fort Smith Planning Comm’n, 336 Ark. 130, 984 S.W.2d 418 (1999); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). The General Assembly is presumed to be familiar with this court’s interpretations of its statutes, and if it disagrees with those interpretations, it can amend the statutes. Without such amendments, however, our interpretations of the statutes remain the law. Lawhon Farm Servs. v. Brown, supra.; Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997). Although aware of our interpretation of the term “employment services” in White v. Georgia-Pacific Corp. and Olsten Kimberley, the General Assembly has not changed section ll-9-102(4)(A)(i) or section ll-9-102(4)(B)(iii), other than to renumber those sections. See 2001 Ark. Acts 1757 and 1999 Ark. Acts 20. Accordingly, this court’s interpretation of the pertinent statutory language remains the law.

Appellant would have this Court either reaffirm the personal-comfort doctrine or hold that a restroom break is a necessary function and directly or indirectly advances the interests of the employer. Conversely, the appellees contend that an employee is not performing employment services during a restroom break, or any personal break, because the personal-comfort doctrine is not consistent with a strict construction of Act 796. Since the enactment of Act 796, we have not directly addressed the personal-comfort doctrine. To automatically accept a personal-comfort activity as providing employment services would impermissibly broaden the requirements of Act 796. On the other hand, to automatically reject a personal-comfort activity as not providing employment services would impermissibly narrow the requirements of Act 796. Instead of following either extreme position, the critical issue is whether the employer’s interests are being advanced either directly or indirectly by the claimant at the time of the injury. In addressing this issue, we decline to adopt the factors identified by the court of appeals in Matlock v. Blue Cross Blue Shield, supra.

We note that the activity of seeking toilet facilities, although personal in nature, has been generally recognized as a necessity such that accidents occurring while an employee is on the way to or from toilet facilities, or while he or she is engaged in relieving himself or herself, arise within the course of employment. As the court of appeals reasoned in Matlock v. Blue Cross, supra:

Restroom facilities are provided in work settings because eliminating bodily toxins and wastes are natural and ordinary biological processes. Employers provide restroom facilities for the benefit of their customers, to be sure. But they also provide those facilities to accommodate their workers so as to avoid the work interruptions and delays that would certainly occur if workers were forced to leave the employment premises in order to find a public restroom at some distance from the work, their supervisors, and customers.

Matlock v. Blue Cross Blue Shield, 74 Ark. App. at 341-42, 49 S.W.3d at 139. Like the appellant in Matlock, Ms. Collins had gone to a restroom provided by her employer when the accident occurred that resulted in her injuries. Her conduct was entirely consistent with the employer’s interest in advancing the work. Everything in the record before us indicates that appellant was engaged in conduct permitted by the employer, if not specifically authorized by the employer, and that the employer provided restroom facilities on its premises.

Based on the record in this case, we hold that appellant’s restroom break was a necessary function and directly or indirectly advanced the interests of her employer. Consequently, her injury is not excluded from the definition of “compensable injury” under section 11-9-102(4) (B)(iii) because the injury did not occur at a time when she was not performing employment services. The Commission’s decision based on an incorrect interpretation of the law must, therefore, be reversed. In so holding, we overrule all prior decisions by the Arkansas Court of Appeals to the extent that they are inconsistent with this opinion.

Reversed and remanded for a determination of benefits.

       Because the issue to be resolved in this appeal is whether appellant was performing employment services at the time of the accident, we need not address the nature and extent of her injuries.

       The personal-comfort doctrine states that:
      Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless, in some jurisdictions, the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment.
      Arthur Larson, The Law of Workmen’s Compensation § 21 (2001). Prior to Act 796 of 1993, this court adopted the personal-comfort doctrine in workers’ compensation cases. Coleman’s Bar-B-Que v. Fuller, 262 Ark. 645, 559 S.W.2d 714 (1978).

       We disagree with the statement by the court of appeals in Beavers v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618 (1999), that “the personal-comfort doctrine is no longer the law.” Id. at 155. This court agreed in White v. Georgia-Pacific Corp. that the claimant’s injury was not compensable under the personal-comfort doctrine. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). However, we reversed the Commission’s decision in that case on the ground that substantial evidence did not support the Commission’s determination that the claimant was not performing employment services at the time of his injury. Id.

         “[T]he wants ministered to are so obviously in the category of necessities that no question arises about their being basically in the course of employment. The only issue on which compensation is sometimes denied is that of seeking these facilities in an unreasonable manner.” Arthur Larson, The Law of Workmen’s Compensation § 21.05 (2001).


source: Caselaw Access Project

author: T OM GLAZE, Justice.

license: Public Domain

text:
    James HATHCOCK and Zoeanna Hathcock v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, S.J. and J.H., Minor Children
    01-885
    69 S.W.3d 6
    Supreme Court of Arkansas
    Opinion delivered March 7, 2002
    [Petition for rehearing denied April 11, 2002.]

      Jeff Rosenzweig, for appellant James Hathcock.
    Arkansas Department of Humans Services, by: Dana McClain; and Lana Parks Davis, for appellee.
   T OM GLAZE, Justice.

The Arkansas Department of Human Services (DHS) initiated this proceeding by obtaining an emergency order, dated April 23, 2000, which resulted in the removal of juveniles, S.H., J.H., and T.J.H. from the custody of their parents, Zoeanna and James Hathcock. In that order, the trial court set a probable cause hearing on April 30, 2001, which was held as scheduled. After the probable cause hearing, the trial court ordered T.J.H. to be returned to his parents, but directed the daughters, S.H. and J.H. to continue in DHS’s custody. The trial court ordered that the father, James Hathcock, have no contact with his daughters, and in the same order, set an adjudication hearing for June 1, 2001.

On May 25, 2001, Hathcock filed a motion for continuance, asserting there was a possibility of criminal charges being filed against him involving allegations that Hathcock had sexually and physically abused his daughters, S.H. and J.H. Hathcock submitted that so long as he was the subject of a pending criminal investigation, he had no alternative but to decline to testify at the adjudication hearing, thereby exercising his Fifth Amendment rights. The trial court denied Hathcock’s request for continuance, finding that (1) any criminal charges filed against Hathcock were independent of the court’s adjudication holding on the issues of dependency/neglect, (2) any adjudication order would be based on relevant information provided by persons other than Hathcock, and (3) under Ark. Code Ann. § 9-27-315(d)(2) (Repl. 2002), the trial court was under a mandated deadline to complete the adjudication.

The court conducted an adjudication hearing on June 1st and 15th of 2001, and continued DHS’s custody of S.H. and J.H., finding, among other things, that Hathcock had returned to the parents’ home, and the girls’ mother, Zoeanna, had previously demonstrated she would not protect the girls. The court provided liberal supervised visitation for the mother, Zoeanna, but barred James Hathcock from having any contact with his daughters.

Hathcock now appeals the trial court’s adjudication pursuant to Rule 2(c)(3) of our Rules of Appellate Procedure — Civil. His sole point for reversal is that the trial court erred in denying him a continuance of the adjudication proceeding, which included the same abuse allegations for which the State was criminally investigating him. We affirm.

Hathcock argues the trial court erred in ruling it could not grant a continuance of an adjudication hearing for more than fifty days after the emergency hearing. In reaching that decision, the trial court relied on section 9-27-315(d)(2) which reads as follows:

The adjudication hearing shall be held within thirty (30) days of the emergency hearing, but may be continued for no more than twenty (20) days following the first thirty (30) days on motion of any party for good cause shown.

(Emphasis added.)

Citing Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001), Hathcock submits the word “shall,” as used in section 9-27-315 (d)(2), should be regarded as directory and not mandatory. Hathcock argues that the purpose of section 9-27-315(d)(2) is to provide a forum for the litigation of emergency issues and to return a child to his home if there is no probable cause or if the evidence does not support it. He contends the purpose of the statute is not defeated by the court’s delaying the adjudication proceedings when he is willing to allow the status quo to continue during the delay. In addition, Hathcock urges his argument is consistent with our general rule covering continuance requests under Rule 40(b) of the Rules of Civil Procedure, which provides that a trial court may, upon motion and for good cause shown, continue any case previously set for trial. Hathcock further argues that, unlike the continuance language in section 9-27-315 (d)(2), the grant or denial of a motion for a continuance is generally within the sound discretion of the trial court, and the trial court’s ruling will be reversed only if there is an abuse of discretion. Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 934 (2000).

Hathcock’s arguments are misplaced for several reasons. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Ramirez, 343 Ark. 372, 38 S.W.2d 298. If the language of a statute is clear and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id. Moreover, this court has consistently held that the word “shall,” in a statute, means the legislature intended mandatory compliance with the statute unless such an interpretation would lead to an absurdity. Id.

In the instant case, section 9-27-315(d)(2) is quite clear, and the statute’s employment of the word “shall” merely assures that the statute’s purpose will be met. The purposes of the provisions of the Arkansas Juvenile Code are set out in Ark. Code Ann. § 9-27-302 (Repl. 2002). The paramount objective of the Act is best stated in the emergency clause of Act 1337 of 1995 — an amendment to section 9-27-315 — which provides as follows:

[I]n instances where a determination is to be made as to whether a child should remain in an abusive home, that decision should be made based upon the best interest [of] the child; . . . and . . . this act should go into effect as soon as possible so that the standard is made clear immediately that the best interest of the child should always be the paramount consideration in determining whether a child is to remain in an abusive home.

(Emphasis added.)

To achieve the foregoing purpose, the Code provides for six-month periodic reviews, and, no later than twelve (12) months after the date the juvenile enters an out-of-home placement, the court shall hold a permanency planning hearing in order to enter a new disposition in the case. See Ark. Code Ann. §§ 9-27-337 and -338 (Repl. 2002). In the instant case, Hathcock’s request for a continuance that could extend the statutorily required hearings past the fifty-day period established in section 9-27-315 (d)(2) may well serve his purposes, but it unquestionably impedes Arkansas’ statutory scheme, which is designed to expedite and insure that the children’s best interests will be achieved. As for Hathcock’s reliance on our Rule 40(b), we hold that the limited continuance provided in section 9-27-315 (d)(2) of the Juvenile Code controls, since that statute deals with expediting hearings involving children in out-of-home placement situations and, as such, serves a specific purpose which is not in conflict with Rule 40(b). See Citizens for a Safer Carroll County v. Epley, 338 Ark. 61, 991 S.W.2d 562 (1999) (as a general rule, statutes are given deference so long as they are compatible with our rules).

Finally, Hathcock quotes extensively from the case of Security Exchange Commission v. Dresser Industries, Inc., 628 F.2d 1368 (D.C. Cir. 1980), in support of bis assertion that the refusal to continue the adjudication hearing impinged on his constitutional rights against self incrimination. He refers to Dresser and quotes the following:

The Constitution, therefore, does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings. See Baxter v. Palmigiano, 425 U.S. 308, 98 S. Ct. 1551, 47 L. Ed. 2d 810 (1976); DeVita v. Sills, 422 F.2d 1172, 1181 (3d Cir. 1970). Nevertheless, a court may decide in its discretion to stay civil proceedings, postpone civil discovery, or impose protective orders and conditions “when the interests of justice seem to require such action, sometimes at the request of the prosecution, . . . sometimes at the request of the defensef.]” United States v. Kordel, supra, 397 U.S. at 12 n. 27, 90 S. Ct. at 770 (citations omitted); see Horne Brothers, Inc. v. Laird, 463 F.2d 1268, 1271-1272 (D.C. Cir. 1972). The court must make such determinations in the light of the particular circumstances of the case. Other than where there is specific evidence of agency bad faith or malicious governmental tactics, the strongest case for deferring civil proceedings until after completion of criminal proceedings is where a party under indictment for a serious offense is required to defend a civil or administrative action involving the same matter. The noncriminal proceeding, if not deferred, might undermine the party’s Fifth Amendment privilege against self-incrimination, expand rights of criminal discovery beyond the limits of Federal Rule of Criminal Procedure 16(b), expose the basis of the defense to the prosecution in advance of criminal trial, or otherwise prejudice the case. If delay of the noncriminal proceeding would not seriously injure the public interest, a court may be justified in deferring it.

Dresser Indus., 628 F.2d at 1375-76.

Even the foregoing passage on which Hathcock relies fails to help him. For example, the court in Dresser points out the general rule that the Constitution does not require a stay of civil proceedings pending the outcome of criminal proceedings, but a court may, in its discretion, decide to stay such civil proceeding where the intent of justice seems to require a stay. See also United States v. Kordel, 397 U.S. 1 (1970) (recognizing that to require the government to choose between foregoing recommendation of a criminal prosecution once it seeks civil relief and deferring civil proceedings pending the ultimate outcome of a criminal trial would “stultify enforcement of federal law”). The public interests at stake here in Arkansas’ Juvenile Code are to protect the State’s juveniles who have been reported abused, removed from their parents’ custody, and placed in a foster-care home.

As already indicated above, any delay in affording children protection or in providing them with a permanency plan works against those children’s welfare and best interests. In other words, delays in the noncriminal, dependency/neglect proceeding would only serve to injure the public interest and run counter to the purpose of Arkansas’ adjudication hearings like the one now before us. Therefore, we conclude that the trial judge did not err in denying Hathcock’s motion for continuance.

Affirmed.

       This subchapter shall be liberally construed to the end that its purposes may be carried out:
      (1) To assure that all juveniles brought to the attention of the courts receive the guidance, care, and control, preferably in each juvenile’s own home when the juvenile’s health and safety are not at risk, which will best serve the emotional, mental, and physical welfare of the juvenile and the best interest of the state;
      (2) (A) To preserve and strengthen the juvenile’s family ties when it is in the best interest of the juvenile;
      (B) To protect a juvenile by considering the juvenile’s health and safety as the paramount concerns in determining whether or not to remove the juvenile from the custody of his or her parents or custodians, removing the juvenile only when the safety and protection of the public cannot adequately be safeguarded without such removal;
      (C) When a juvenile is removed from his or her own family, to secure for him or her custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents, with primary emphasis on ensuring the health and safety of the juvenile while in the out-of-home placement; and
      (D) To assure, in all cases in which a juvenile must be permanently removed from the custody of his or her parents, that the juvenile be placed in an approved family home and be made a member of the family by adoption;
      (3) To protect society more effectively by substituting for retributive punishment, whenever possible, methods of offender rehabilitation and rehabilitative restitution, recognizing that the application of sanctions which are consistent with the seriousness of the offense is appropriate in ah cases; and
      (4) To provide means through which the provisions of this subchapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.


author: T OM GLAZE, Justice. J IM Hannah, Justice,

text:
    WAL-MART STORES, INC. v. REGIONS BANK TRUST DEPARTMENT, Guardian of the Estate of Michael Burkeen; Linda Burkeen, Individually, and as Guardian of the Person of Michael Burkeen
    01-839
    69 S.W.3d 20
    Supreme Court of Arkansas
    Opinion delivered March 7, 2002

      Quattlebaum, Grooms, Tull & Burrow PLLC, by: Leon Holmes, Thomas G. Williams, and Patrick D. Wilson, for appellant.

      Taylor, Halliburton, Ledbetter & Caldwell, by: Mark Ledbetter; and Lane, Muse, Arman & Pullen, by: Richard S. Muse, for appellees.
   T OM GLAZE, Justice.

This is an appeal from a jury verdict in favor of Michael and Linda Burkeen in their negligence action against Wal-Mart. In addition to asking this court to determine the sufficiency of the evidence, Wal-Mart also poses a challenge to two of the trial court’s evidentiary rulings. Because the appeal presents a substantial question of law concerning the construction of a rule of evidence, jurisdiction is properly in this court under Ark. Sup. Ct. R. 1-2(b) (6).

We first turn to the facts of this case. About 6:45 p.m. on November 12, 1992, Michael Burkeen slipped and fell on a liquid substance on the floor of a Wal-Mart store in Hot Springs; the liquid apparently came from a broken snow globe that had been part of a Christmas display. He hit his head on the floor, and later reported that he had begun to experience memory problems. Through Linda, Michael sued Wal-Mart for negligence, alleging first, that the store had been negligent in how it stacked the display of snow globes, and second, that it had failed to inspect the floors and clean the liquid substance on the floor.

During discovery, Wal-Mart disclosed that it wanted to introduce evidence that Linda had pled guilty to theft of property. This felony conviction resulted from a check-kiting scheme in which she had been involved after Micbael’s slip-and-fall accident; however, upon her successful completion of probation, Linda’s record was expunged. The expungement occurred prior to Michael’s filing this suit. Wal-Mart also suggested that it would introduce the fact that Michael had pled nolo contendere to misdemeanor criminal mischief. Michael responded by filing a motion in limine to exclude evidence of his and Linda’s convictions. Wal-Mart responded that the evidence of Linda’s conviction was relevant to impeach her credibility, and that Michael’s conviction — in particular, his conduct during the police investigation — was relevant to proving the extent of damages he allegedly suffered. The trial court granted the Burkeens’ motion in limine, concluding that Linda’s conviction had been expunged, and the evidence surrounding Michael’s conviction would be more prejudicial than probative.

The matter proceeded to trial, and the jury found in favor of the Burkeens, awarding Michael $169,000 and Linda $67,000. From that jury verdict, Wal-Mart brings the instant appeal, arguing that 1) there was insufficient evidence to support the jury’s finding of Wal-Mart’s negligence; 2) the trial court erred in excluding evidence of Linda’s felony conviction for theft of property; and 3) the trial court erred in excluding the audiotape and transcript of Michael Burkeen’s interview with Police Chief Montie Sims regarding his knowledge of Linda’s involvement in the check-kiting scheme.

For its first point on appeal, Wal-Mart argues that there was insufficient evidence to support the jury’s finding that Wal-Mart was negligent. At the close of the Burkeens’ case, Wal-Mart moved for a directed verdict, arguing that the Burkeens had failed to produce sufficient evidence to show that 1) Wal-Mart caused the snow globe to be on the floor, 2) the globe’s liquid had been on the floor for any length of time, and 3) Wal-Mart had knowledge of the broken snow globe and of the substance on the floor, yet failed to remove it. The trial court granted Wal-Mart’s motion as to the question of whether or not Wal-Mart had been negligent in its stacking of the snow globes, but denied it with respect to whether or not Wal-Mart knew or should have known of the presence of the substance on the floor.

Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Ethyl Corporation v. Johnson, 345 Ark. 47, 49 S.W.3d 644 6 (2001); City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000). We will reverse only if there is no substantial evidence to support the jury’s verdict and the moving party is entitled to judgment as a matter of law. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000). Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Caddo Valley, supra. It is not this court’s place to try issues of fact; rather, this court simply reviews the record for substantial evidence to support the jury’s verdict. Id. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. State Auto Prop. & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999); Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). A motion for a directed verdict should be denied when there is a conflict in the evidence or when the evidence is such that fair-minded people might reach different conclusions. Fayetteville Diagnostic Clinic v. Turner, 344 Ark. 490, 42 S.W.3d 420 (2001). Under those circumstances, a jury question is presented and a directed verdict is inappropriate. Id.

The principles that govern slip-and-fall cases have been frequently stated by this court. Those principles are set against the general backdrop that an owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Fayetteville Diagnostic Clinic, supra; Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995); Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994). To establish a violation of that duty, the plaintiff must prove either: (1) that the presence of a substance upon the floor was the result of the defendant’s negligence, or (2) the substance had been on the floor for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Wilson v. J. Wade Quinn Co., 330 Ark. 306, 952 S.W.2d 167 (1997); Kelly v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997); Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994). With respect to part two of this test, the burden is on the plaintiff to show a substantial interval between the time the substance appeared on the floor and the time of the accident. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992). The mere fact that a person slips and falls does not give rise to an inference of negligence. Brunt v. Food 4 Less, Inc., supra. Also, the presence of a foreign or slick substance which causes a slip and fall is not alone sufficient to prove negligence, but instead, it must be proved that the substance was negligently placed there or allowed to remain. House v. Wal-Mart Stores, Inc., 316 Ark. 221, 872 S.W.2d 52 (1994); Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993).

After the trial court granted a directed verdict on the issue of Wal-Mart’s negligence in stacking the snow globes, the case proceeded to the jury on the second of the two theories noted above — i.e., that the substance had been on the floor for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Viewed in the light most favorable to the Burkeens, the evidence at trial showed the following series of events. On November 12, 1992, Michael Burkeen was shopping for light switches at the Wal-Mart. He said that he went to the Christmas department to find a toy for one of his children, “made a right turn, and the next thing [he] knew [he] was lying on the floor.” After the fall, he remembered going through the checkout line, but as he walked back to his truck, he had to hold onto other cars for support.

When Michael had not returned home by 11:00 p.m., Linda and her daughter Kristy Johnson went out to look for him. Linda testified that when she found Michael, he was slumped over the steering wheel of his truck in the Wal-Mart parking lot; when she opened the door of the truck, he was semi-conscious. Kristy went into the Wal-Mart to call 911, and Linda waited with Michael. According to Linda, he kept asking where he was, and he had a knot on his head. When the paramedics arrived, Michael was still confused, but was able to talk some. At the hospital, Linda noticed that he had given an incorrect address, and he seemed confused and unaware of where he was. Since the accident, she testified that his personality had changed, and that he had become forgetful and unable to communicate or work.

Debra Sharp was shopping in the same department as Michael at the time of the accident; she had noticed a “puddle of stuff’ on the floor moments before, and had warned her little girl to walk around the water. Out of the corner of her eye, Sharp saw Michael fall and heard a “pop” as his head hit the ground. His shopping cart rolled into her after he fell. Sharp stated that she only noticed the puddle because she was looking down at her daughter, and would probably not have noticed it if her children had not been with her. She described the puddle as having a “milky color like when wax gets wet and then it starts to dry,” and the puddle “might have been a little smaller than eight-by-twelve” inches. She did not remember seeing the parts of a broken snow globe on the floor, but did notice snow globes on the shelves as she was shopping. Sharp further related that, “[b]ecause there was a discoloration around the edges of this puddle, it just told me that it had been there awhile. I worked in a motel for years and you kinda notice those kind of things on the floors and know that water’s been on it for a while.” On cross-examination, she conceded that she had no way of knowing how long the puddle had been there.

David Bateman was employed by Wal-Mart at the time of the accident. He testified that he heard the accident and got over to that aisle as soon as he could; upon arriving, he saw Michael sprawled across the aisle and bleeding profusely from his hands. There was glass protruding from his hand, and there was a broken snow globe on the floor. Bateman cleaned up the puddle after his supervisor arrived and instructed him to do so. Bateman stated that he did not remember any flaking or discoloration around the edges of the spill, but he conceded that it was possible the substance could have been on the floor for as long as a day. He also testified that when he cleaned up the floor, the snow globe material had “slightly discolored the floor.” There was a clean spot where the liquid had been, and it looked as though the top layer of floor wax had been removed.

The next witness to testify was Edward Sorrells, a chemist who conducted an analysis of the snow globe’s contents. He noted that the substance inside the snow globe was primarily water, but also contained some “dissolved solids.” His analysis stated that the liquid in the globe “would not dry simply by exposure to atmosphere, and it would only dry completely in a forced air oven at a temperature well above the boiling point of water. At a lower temperature, the liquid would not dry completely and the retained dissolved solids would regain water on cooling to regain a liquid appearance.” Sorrels also concluded that for the substance in the snow globe to even begin to dry, it would take at least twenty-four hours. If the borders of the liquid were “flaky,” Sorrels estimated that it would take more than a day to get that appearance.

Dale Adams, a Wal-Mart assistant manager, testified that when he got to the area where Michael fell, he saw a broken snow globe on the floor and associated that with the accident. Adams did not recall whether the area where the snow globe had fallen and broken was whitening or had changed the condition of the floor where the liquid had been spilled. He said that he could not picture a substance being on the floor long enough to change its color. Adams further testified that in his experiences with substances being on the floor in Wal-Mart, either an associate or a customer would see and report it so it could be cleaned up quickly; when anyone reported a spill, someone from Wal-Mart would grab a paper towel as quick as possible to get it cleaned up.

As noted above, the trial court granted Wal-Mart’s motion for directed verdict on the question of whether or not the liquid was on the floor as the result of Wal-Mart’s negligence. Thus, this court must determine whether the evidence described above was sufficient to support a finding that the substance had been on the floor for such a length of time that Wal-Mart knew or reasonably should have known of its presence and failed to use ordinary care to remove it. See Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). This court has recognized that the length of time a substance is on the floor is a key factor in determining negligence, and the burden is on the plaintiff to show a substantial interval between the time the substance appeared on the floor and the time of the accident. House v. Wal-Mart Stores, Inc., 316 Ark. 221, 872S.W.2d 52 (1994); Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991).

In Wilson v. J. Wade Quinn Co., 330 Ark. 306, 952 S.W.2d 167 (1997), there was conflicting testimony about whether or not a substance had been on the floor for any amount of time. The trial court granted summary judgment in favor of the store, but this court reversed, holding that there a fact question was presented by the affidavit of the plaintiff, Wilson, wherein he stated that there was a “dirty looking liquid,” mixed with food particles, on the floor that looked like it had been walked through for quite some time and that had spread over a wide area. Such a statement “raise[d] the specter of a foreign substance having been present long enough that store employees should have known of its presence.” Wilson, 330 Ark. at 309.

In the present case, Wal-Mart relies on Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992), in which this court affirmed the trial court’s grant of summary judgment and held that there was no evidence tending to establish the time between the appearance of a substance on the floor and the time of the accident. There, plaintiff Sanders had no idea how long the substance was on the floor prior to her fall, and the closest evidence on this point was her “admitted guess” that the matter was tobacco juice and that it had “gelled.” In affirming, this court held that, absent some showing the substance actually was tobacco juice and evidence as to how long it would have taken it to “gel,” there was no evidence that the substance had been there long enough that store personnel should have had notice of it.

Here, on the other hand, Michael Burkeen offered not only the testimony of Debra Sharp, who stated that, based on her experience working in hotels, the spill looked like it had been there for some time, but also expert testimony given by chemist Ed Sorrells. As discussed above, Sorrells testified that the liquid in the snow globe would not dry simply by exposure to the atmosphere, and that, for the substance to even begin to dry, it would take at least twenty-four hours. From this testimony, as well as the concession of Wal-Mart employee David Bateman that the liquid may have been on the floor for up to a day, the jury had sufficient evidence to find that the substance had been on the floor for such a substantial interval of time that Wal-Mart employees should have known of its presence and removed it.

For its second point on appeal, Wal-Mart contends that the trial court erred in excluding evidence of Linda Burkeen’s felony theft conviction, which Wal-Mart sought to introduce to impeach her credibility. Linda pled guilty to felony theft of property in Yell County in 1993; the charges arose out of a check-kiting scheme in which she engaged after Michael’s fall in November of 1992. On July 6, 2000, the Yell County Circuit Court entered an order pursuant to Ark. Code Ann. § 16-93-301 (Supp. 2001), expunging her record, finding that she had “satisfactorily complied with the orders of this court, and that the petition to expunge and seal should be granted.” Prior to the trial in the instant case, the trial court granted the Burkeens’ motion in limine to exclude any evidence of Linda’s 1993 conviction, ruling that “an expungement is an expungement,” and the felony conviction was therefore inadmissible. Wal-Mart contends that the trial court’s ruling was in error, because there was no finding that Linda had been rehabilitated as required by Ark. R. Evid. 609(c). That rule provides as follows:

Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one [1] year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(Emphasis added.) Wal-Mart contends that, because Linda’s expungement was not accompanied by a finding of rehabilitation, the underlying conviction should not have been excluded from evidence.

Here, both parties cite Steele v. State, 280 Ark. 51, 655 S.W.2d 381 (1983). In Steele, the issue presented was whether or not the trial court erred in refusing to permit defense counsel to impeach one of the State’s witnesses with evidence of a prior felony conviction. The trial court had refused to allow such cross-examination because the earlier conviction had been expunged by the sentencing court. This court affirmed, writing as follows:

This being the first interpretation of Rule 609(c) as applied to a situation where a witness’s prior record has been expunged, we choose to give the rule its plain and ordinary meaning. Therefore, we hold that the trial court correctly ruled that the expungement of the prior proceedings, whether it was a conviction or not, rendered such record inadmissible. The trial court found that [the witness] had been rehabilitated prior to the entry of the order of expungement. Rule 609(c) requires the court to refuse to allow a conviction which has been expunged, to be used for testing the credibility of a witness.

Steele, 280 Ark. at 53 (emphasis added).

Here, the Burkeens contend that, under the last sentence quoted above from Steele, the trial court’s ruling was correct. Further, the Burkeens rely on the language of Ark. Code Ann. § 16-90-902 (Supp. 2001), that states that the effect of an expungement is that “the individual’s underlying conduct shall be deemed as a matter of law never to have occurred and the individual may state that no such conduct ever occurred.” However, the Burkeens’ argument ignores the language in the Steele opinion that specifically notes that the trial court in that case “found that [the witness] had been rehabilitated prior to the entry of the order of expungement.” No such finding was made in the instant case. To accept the Burkeens’ contentions would require this court to read the “finding of rehabilitation” language out of Rule 609(c).

Arkansas Rule of Evidence 609(c) is identical to Federal Rule 609(c); numerous federal cases interpreting that rule have required an explicit finding of rehabilitation before an expunged conviction may properly be excluded. See, e.g., United States v. Swanson, 9 F.3d 1354 (8th Cir. 1993) (trial court properly held that it could not exclude evidence of an earlier conviction based on Rule 609(c) because appellant Swanson did not provide any evidence that the dismissal of the case was based on a finding of innocence or rehabilitation); Wilson v. Attaway, 757 F.2d 1227 (11th Cir. 1985) (Georgia First Offender Statute, which permitted court to put a defendant on probation without adjudication of guilt, did not provide for rehabilitation within the meaning of Fed. R. Evid. 609(c)); f. Brown v. Frey, 889 F.2d 159, 171 (8th Cir.1989) (holding that evidence of conviction was properly excluded where convicted party received pardon “based on rehabilitation”). Further, the Fifth Circuit has noted that Rule 609 “draw[s] a distinction between pardons based on actual innocence or a finding of rehabilitation (which make the underlying conviction inadmissible for impeachment) and pardons granted solely to restore civil rights (which have no relevance to character and do not impair the admissibility of the underlying conviction).” United States v. Hamilton, 48 F.3d 149 (5th Cir. 1995) (emphasis added).

Other states interpreting Rule 609(c) have reached similar conclusions. See State v. Hettich, 70 Wash. App. 586, 854 P.2d 1112 (1993) (Rule 609(c) bars admission of a prior conviction only where there has been an express finding that the person convicted has been rehabilitated); State v. Fierson, 146 Ariz. 287, 705 P.2d 1338 (Ct. App. 1985) (explicit finding of rehabilitation is necessary in order to bar use of a prior conviction under Rule 609(c)); Durham v. State, 571 S.W.2d 673 (Mo. Ct. App. 1978) (Rule 609 provides that pardoned convictions can be used to impeach the credibility of a witness unless the pardon was based on a finding of rehabilitation or innocence).

We conclude that, in the absence of a finding that Linda had been rehabilitated, the trial court’s decision to exclude evidence of her conviction under Rule 609(c) was erroneous. WalMart further points out that Linda’s conviction could have been admissible under Ark. R. Evid. 609(a), which provides as follows:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.

(Emphasis added.)

As previously noted, the federal rule is identical to Arkansas’ rule on this point. The congressional commentary to Fed. R. Evid. 609(a) states explicitly the following:

The admission of prior convictions involving dishonesty and false statement is not within the discretion of the court. Such convictions are peculiarly probative of credibility and, under this rule, are always to be admitted. Thus, judicial discretion granted with respect to the admissibility of other prior convictions is not applicable to those involving dishonesty or false statement.

Fed. R. Evid. 609(a) — Senate Conference Committee Report (1999).

A leading commentator notes that such “second-prong crimes” — i.e., those involving dishonesty or false statements — clearly include crimes such as perjury, criminal fraud “in many different forms,” embezzlement, and false pretense, but points out that “this list is not exhaustive, and certainly forgery and counterfeiting should be included, along with other crimes involving deceit, untruthfulness, or falsehood.” Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 6.32 (2d ed. 1999) (citing, as examples of such crimes, United States v. Morrow, 977 F.2d 222 (6th Cir. 1992) (counterfeiting); United States v. Kane, 944 F.2d 1406 (7th Cir. 1991) (delivering check knowing it will not be honored); Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652 (3d Cir. 1989) (forgery, passing bad checks)).

The crime of which Linda was convicted was check-kiting. This crime is defined as a “practice of writing a check against a bank account where funds are insufficient to cover it and hoping that, before it is deposited, the necessary funds will have been deposited,” or a “transfer of funds between two or more banks to obtain unauthorized credit from a bank during the time it takes the checks to clear.” Black’s Law Dictionary 238 (6th ed. 1990); see also Peek v. Bank of Star City, 237 Ark. 967, 377 S.W.2d 158 (1964). Clearly, check-kiting is a crime involving dishonesty, and as such, the trial court abused its discretion in refusing to admit evidence of Linda’s earlier conviction.

Wal-Mart’s third argument on appeal is that the trial court erred in excluding an audiotape and transcript of a 1993 interview Michael gave to Chief of Police Montie Sims, who was investigating the check-kiting charges against Linda and who spoke with Michael approximately six months after his fall. Wal-Mart asserted that the transcript of that interview would serve to show that Michael’s memory was not as impaired as he claimed, and it argued to the trial court that the transcript was relevant to rebut Michael’s claims and the testimony of his experts regarding the degree of his impairment. Prior to trial, the trial court excluded evidence of Michael’s misdemeanor conviction for criminal mischief, ruling that it was not a felony that could be admitted under Rule 609. Further, the court found that the prejudicial effect of the audiotape and transcript outweighed any probative value they might have, and therefore rejected Wal-Mart’s proffer of the items.

On appeal, Wal-Mart continues its argument that it should have been permitted to introduce the tape and transcript to show that, contrary to Michael’s tests, he had ample memory and could carry on a normal conversation under stressful conditions. His interview with Officer Sims, Wal-Mart submits, belies the claims of Michael’s expert witnesses and his family as to the severity of Michael’s brain impairment and that he had no short-term memory. Wal-Mart asserts that, when confronted with possible criminal prosecution, Michael “answered the questions precisely, intelligently, and to the point” and “had vivid recall of the name of the bank officer who had contacted him, his whereabouts, conversations with his wife and other matters.” Wal-Mart notes that it is readily apparent from the tenor of the conversation between Michael and Officer Sims that Michael had no problems remembering details and recent events; such evidence stood in direct contrast to testimony from one of Michael’s neuropsychologists who testified that Michael “could not even remember to come in out of the rain.”

Ordinarily, questions regarding the admissibility of evidence are matters entirely within the trial court’s discretion, and such matters will not be reversed absent an abuse of that discretion. See, eg., J. E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001). Here, however, the trial court rendered its decision regarding the audiotape and transcript in light of its previous decision to exclude evidence of Linda’s conviction. Because the tape contained lengthy discussions of Linda’s involvement in the check-kiting scheme, as well as Michael’s knowledge of her involvement, the trial court ruled that to introduce the transcript and tape would be unduly prejudicial. However, as discussed above, the trial court’s decision to exclude Linda’s felony conviction was premised on an erroneous application of Ark. R. Evid. 609(c). That conviction should have been admitted into evidence, and had the trial court ruled properly on that evidentiary question, it is likely that the jury’s hearing of Michael’s interview would have posed less danger of unfair prejudice. Accordingly, we hold that the trial court likewise abused its discretion in excluding the audiotape and the transcript.

Affirmed in part; reversed and remanded in part.

Hannah, J., dissents.

CORBIN, J., not participating.

J IM Hannah, Justice,

dissenting. I must respectfully dissent. While I agree with the majority that there is sufficient evidence to support the jury’s finding that Wal-Mart was negligent, I cannot agree with the majority’s holding that the expunged conviction of Mrs. Burkeen is admissible under Ark. R. Evid. 609(c) for purposes of impeachment in a civil trial. This holding is directly contrary to our holding in Steele v. State, 280 Ark. 51, 655 S.W.2d 381 (1983). There are two instances where an expunged conviction is admissible. Neither is applicable under the facts of this case. I find no basis for this court’s holding on admissibility of expunged convictions in the law of this State and find the foreign-jurisdiction analysis provided by the majority unconvincing.

In reading the majority opinion, I must conclude that the holding is based upon a failure of Mrs. Burkeen to use the correct words in drafting her order expunging and sealing her conviction. It appears this Court now holds exact wording in the order is required by Rule 609(c) before expungement is effective. I must note that expungement is granted by statute, not by the rules of this Court.

At issue is the following language from Rule 609(c): “Evidence of a conviction is not admissible if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based upon a finding of rehabilitation of the person convicted. ...” It seems abundantly clear from the plain language of this sentence that where a conviction has been expunged according to law it is inadmissible. This court, however, cites to Steele, supra, in finding confusion where there is none. In Steele, this court held that the evidence of the conviction was properly excluded because the “[tjrial court found that he had been rehabilitated prior to entry of the order of expungement.” Steele, 280 Ark. at 53. Basing its decision on the literal language of the opinion in Steele, the majority finds meaning and direction from the opinion in Steele where none was intended. Relying on specific words used in the Steele opinion, the majority holds in the present case that because “[n]o such finding [of rehabilitation] was made in the instant case,” the conviction was admissible even though it had been expunged. It is true that the word “rehabilitation” does not appear in the order in Mrs. Burkeen’s case, but neither does it appear in the order in Steele. The majority reads more into the opinion in Steele than is to be found there. The court in Steele stated, “The order stated that LaFerney had met all the terms and conditions of the earlier order and had in fact been a model citizen.” Steele, 280 Ark. at 52.

The word “rehabilitation” does not appear in the order expunging the witness’s conviction in Steele. The Court just used the word “rehabilitation” in its opinion in characterizing that the terms and conditions of the earlier order had been met. The order in Steele provides in pertinent part “that the defendant has met all conditions pursuant to said plea and the behavior of the defendant since January 26, 1978, has been exemplary and the defendant has conducted himself as a model citizen.” The order regarding Mrs. Burkeen provided more simply in pertinent part, “[t]hat the Court now finds that the Defendant has satisfactorily complied with the orders of this Court, and the Petition to Expunge and Seal should be granted.” It is apparent that in both cases the defendants had done what the court required of them when they were convicted under a statute allowing later expungement, and that both had complied and received expungement as provided under the statute.

What we are engaged in is a discussion of who drafted the better order. The order in Steele was certainly more extensive, but no more effective than the order in this case, and neither order used the word “rehabilitation.” What is at issue is a hypertechnical definition of what Rule 609(c) requires. Arguments against hypertechnical interpretation by this court of its own rules has been the subject of other dissents. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993).

If we consider the expungement statute, this matter becomes more clear. The effect of expungement is set out in Ark. Code Ann. § 16-90-902 (Supp. 2001), wherein its provided:

(a) An individual whose record has been expunged in accordance with the procedures established by this subchapter shall have all privileges and rights restored, shall be completely exonerated, and the record which has been expunged shall not affect any of his civil rights or liberties, unless otherwise specifically provided for by law.
(b) Upon the entry of the uniform order to seal records of an individual, the individual’s underlying conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred and that no such records exist.

I have found two instances where an expunged conviction is admissible in Arkansas. The present case fits into neither instance. The first instance is set out in the expungement statutes. Ark. Code Ann. § 16-90-901 (a) (3) provides that expungement does not apply to the case of a sexual offense as defined therein. The second instance is where the conviction is used to determine punishment as an habitual offender. McClish v. State, 331 Ark. 295, 962 S.W.2d 332 (1998); Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995); Gosnell v. State, 284 Ark. 299, 681 S.W.2d 385 (1984). Somewhat similarly to the use in enhancement of punishment of habitual offenders, Act 595 of 1995, approved March, 13, 1995, would also allow use of an expunged felony in proof of a felon in possession of a firearm; however, as noted in Ross v. State, 344 Ark. 364, 39 S.W.3d 789 (2001), this is still uncodified.

In holding in Gosnell, supra, that expunged felony convictions could be admitted for purposes of determining enhanced punishment, this court stated:

There is good reason to follow the basic rule of statutory interpretation in this instance. Every benefit extended by this statute is of the type to encourage the offender’s progress toward rehabilitation. That is, a reformed convict should be encouraged to apply for a job, to assert his civil rights, as by registering to vote or running for office, and to discharge a good citizen’s duty to appear as a witness without fear of unnecessary embarrassment. But there is no reason either to encourage him to commit another crime or to believe that the legislature intended to do so. The trial judge was right in refusing to read into the statute a provision that is simply not there and that would actually be contrary to the over-all legislative intent.

Gosnell, 284 Ark. at 301. In Gosnell, the court was considering expungement of a youthful offender, but the principle is the same in the present case even though it was an adult offender under a different statute.

Resort to federal cases and cases from foreign jurisdictions is unnecessary and confuses the issue further. Existing Arkansas law is determinative of the issue. Also, although as stated in the majority opinion, the wording of the federal rule and the rule in other States may be identical, that alone is not sufficient to resort to consideration of interpretation of those rules in their jurisdictions. The statutes and law at issue in this case are Arkansas law, while the precedent cited from the federal courts and foreign jurisdictions is based on wholly different law. Even where the statute in Georgia is similar, the precedent is not helpful because we have our own that controls. This court has already spoken on this issue:

The order stated that LaFerney had met all the terms and conditions of the earlier order and had in fact been a model citizen. The order provided that all charges were dismissed.
Therefore, we hold that the trial court correctly ruled that the expungement of the prior proceedings, whether it was a conviction or not, rendered such record inadmissible. The trial court found that he had been rehabilitated prior to the entry of the order of expungement. Rule 609(c) requires the court to refuse to allow a conviction which has been expunged, to be used for testing the credibility of a witness.

Steele, supra, 280 at 52-53. Wal-Mart wished to use the evidence to impeach Mrs. Burkeen. This court has declared an expunged conviction may not be used for that purpose. Steele, supra.

The majority also cites the United States House-Senate Conference Committee Report on Fed. R. Evid. 609(a) for the proposition that Fed. R. Evid. 609 was intended especially to provide for admission of prior crimes involving dishonesty and false statements because these are particularly probative of credibility. That should come as no great surprise to anyone, but discussion of paragraph (a) is not helpful. It simply further confuses the issue. Paragraph (a) of Rule 609 is not at issue. Paragraph (c) of Rule 609 is at issue, and this court’s holding is directly contrary to our holding in Steele, supra.

We are struggling with the use of specific words. As a general proposition, this court has declined to require “magic words.” Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980) (reversed on other grounds in Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998)). Curtis v. Patrick, 237 Ark. 124, 371 S.W.2d 622 (1963). Neither the order in Steele, nor the order in the present case even mentions rehabilitation. Both indicate that the conditions set out by the sentencing court were met, and the party was entitled to expungement. Under the holding of this court, expungement obtained under the same statute may or may not be effective. It depends on whether the order was worded just so to meet the new requirements of Rule 609(c), a rule of evidence, not a rule or statute affording expungement. The trial judge called it right — “expungement is expungement.” To find otherwise is to judicially nullify expungement provided for by statute in holding that although the legislature intended that the conduct is to be deemed to have never occurred, this court may declare that the conviction is revived by an evidentiary rule.

The majority also holds that because the conviction of Mrs. Burkeen was excluded in error, the trial court abused its discretion in excluding the audiotape of Mr. Burkeen. This was based on the premise that if the conviction was admissible, then so was the audiotape. The audiotape was of an interview of Mr. Burkeen where he was being asked about Mrs. Burkeen’s involvement in the activities that led to her conviction. Because I believe that the conviction was properly excluded, I would not find the trial court abused its discretion in excluding the audiotape. I would affirm on the trial court’s exclusion of Mrs. Burkeen’s conviction and the exclusion of the audiotape as well.

I would affirm.

       When the complaint was filed, Linda Burkeen was named plaintiff “individually and as guardian of the person and estate of Michael Burkeen.” Just prior to trial, however, Regions Bank was substituted for Linda Burkeen as guardian of the estate. Linda remained as a named party in the action, individually, and as guardian of Michael’s person.

       Sorrells also stated that if the liquid had a “flaky” appearance around the edges, it would have had to have been there for more than a day. Wal-Mart leans heavily on this testimony and compares it to that of Debra Sharp, who said that the puddle appeared “milky.” In its reply brief, Wal-Mart argues strenuously that “flaky” and “milky” are not synonymous; however, the resolution of this case does not depend on the difference between “flaky” and “milky,” as there was sufficient other testimony to support the jury’s verdict.

       The Georgia First Offender Statute, O.C.G.A. § 42-8-60 (1982), contained language similar to Ark. Code Arm. § 16-90-902, in that it provided that a defendant is discharged upon completion of his probation, and the discharge “shall completely exonerate the defendant of any criminal purpose and shall not affect any of his civil rights or liberties,” and “the defendant shall not be considered to have a criminal conviction.”


author: A NNABELLE CLINTON IMBER, Justice.

text:
    Anthony LAMAR v. STATE of Arkansas
    CR 01-909
    68 S.W.3d 294
    Supreme Court of Arkansas
    Opinion delivered March 7, 2002

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Katherine Adams, Ass’t Att’y Gen., for appellee.
   A NNABELLE CLINTON IMBER, Justice.

Following a jury trial, Appellant Anthony Lamar was convicted of rape and sentenced to thirty years in the Arkansas Department of Correction. The State alleged that Mr. Lamar engaged in deviate sexual activity with A.B., who was four years old at the time. Mr. Lamar’s counsel argued that the State had failed to prove penetration, an essential element of the offense. Mr. Lamar’s only point on appeal is that the trial court erred in denying him the opportunity to make an opening statement at the conclusion of the State’s evidence. We disagree and hold that a criminal defendant must be afforded the opportunity to delay his opening statement until the close of the State’s evidence only when the defendant makes such a request at the proper time, the trial court assents, the State fails to object, and the defendant expects to put on some evidence following the opening statement. The judgment of the trial court is affirmed.

At the beginning of Mr. Lamar’s trial on April 24, 2001, defense counsel, Don Thompson, informed the court that he wished to reserve his opening argument until after the State presented its case. The court responded: “Fine.” There was no objection by the State. Following the State’s opening argument, the court said: “All right, I think you want to withhold your opening statement, Mr. Thompson, is that correct?” Again, the State faded to object. The State proceeded to call its witnesses. After the State completed its presentation of evidence, defense counsel attempted to make an opening statement. The State then argued that, since the purpose of an opening argument is to show what the facts will prove and what the case will show, any statement by defense counsel would be more like a closing argument if he was not going to present any testimony or witnesses.

The trial court agreed with the State and concluded that defense counsel could only make an opening statement “if [he expected] to put on some evidence and [expected] to tell the jury what [he wanted] this evidence to prove.” The court added that defense counsel could not rely on the evidence put on by the State or his cross-examination of that evidence. As defense counsel expected to present no evidence on behalf of Mr. Lamar, he was not allowed to make an opening statement. Both the State and the defense made closing arguments.

On appeal, Mr. Lamar contends that, under the circumstances of this case, the trial court’s refusal to allow him to make his opening statement at the conclusion of the State’s evidence was prejudicial and reversible error. The principal object of the opening statement is to give the jury “an outline of the evidence to be introduced by both sides and the nature of the issues to be tried.” Karr v. State, 227 Ark. 777, 781, 301 S.W.2d 442, 445 (1957). The statutory provision on opening statements made by parties at trial is found at Ark. Code Ann. § 16-89-110 (1987):

(a) The prosecuting attorney may then read to the jury the indictment, and state the defendant’s plea thereto and the punishment prescribed by law for the offense, and may make a brief statement of the evidence on which the state relies.
(b) The defendant, or his counsel, may then make a brief statement of the defense and the evidence upon which the defendant relies.

Section 16-89-111 (1987) further illuminates the required progression of a trial:

(a) The state must then offer the evidence in support of the indictment.
(b) The defendant, or his counsel, must then offer his evidence in support of his defense. . . .

The proper procedure calls for the defendant to make his opening statement immediately following that made by the prosecuting attorney. Jackson v. State, 249 Ark. 653, 460 S.W.2d 319 (1970) (citing Perryman v. State, 242 Ark. 461, 414 S.W.2d 91 (1967); McDaniels v. State, 167 Ark. 1163, 63 S.W.2d 335 (1933)). A defendant’s refusal to make his statement at that time constitutes a waiver. Id.

Mr. Lamar argues, however, that based on our holding in Jackson v. State, 249 Ark. 653, 460 S.W.2d 319, we must conclude that the trial court erred in fading to grant him the opportunity to present his opening statement. There, the jury was selected, impaneled, and sworn, following which the prosecuting attorney made the opening statement for the State. The appellant’s attorney then stated that the defense would like to reserve its opening statement until the closing of the State’s case. There was no objection by the State, and the trial judge assented. Later, after the State rested its case, the appellant’s attorney attempted to make his opening statement. At that point, the trial judge ruled that the appellant had waived his right to make an opening statement when he did not make it immediately following the opening statement by the prosecution.

This court held that the appellant in Jackson could not have knowingly waived his right to make his opening statement “after having been assured by the trial court, without objection by the prosecution, that he could reserve the statement until after presentation of the State’s evidence in chief.” Id. We pointed out that the State was in no position to complain of an error it permitted the court to make without objection. Id. at 655-56, 460 S.W.2d at 320-21. We held that the failure of the State to object when the appellant’s request was made was at the least a silent acquiescence and that the trial court’s failure to permit the appellant to make his belated opening statement deprived him of a fair trial and constituted prejudicial error. Id.

While this court in Jackson suggested in dicta that the right to make an opening statement is a “fundamental right,” no Arkansas case has ever directly held that an opening statement is a part of the appellant’s right to a fair trial. In fact, the Arkansas Court of Appeals has held that opening statements are permissible and not mandatory. Richards v. State, 266 Ark. App. 733, 585 S.W.2d 375 (1979).

The State argues that Jackson’s holding should be limited to situations in which the defendant intends to present evidence. Though there is no clear language in Jackson limiting the rule of that case to situations in which the defendant intends to present evidence, we so limit Jackson today. Following our decision in Jackson, the United States Supreme Court decided the case of Herring v. New York, 422 U.S. 853 (1974). The Herring Court held that “there can be no justification for a statute that empowers a trial judge to deny absolutely the opportunity for any closing summation at all.” Id. at 863. The Court made it clear that its holding should not be understood as implying the existence of a constitutional right to oral argument at any stage of the trial or appellate process other than final argument or summation. Id. See also United States v. Salovitz, 701 F.2d 17 (2d Cir. 1983) (holding that a criminal defendant’s right to make an opening statement, unlike his right to a closing argument, is not one of the traditions of the adversary fact-finding process under the Sixth and Fourteenth Amendments).

The right to make an opening statement is a statutory right. Again, our statute on opening statements provides in part:

(b) The defendant, or his counsel, may then make a brief statement of the defense and the evidence upon which the defendant relies.

Ark. Code Ann. § 16-89-110(b). This court has previously interpreted the language of that statute. In Karr v. State, this court said that the object of the opening statement is to present to the jury “an outline of the evidence to be introduced” and the nature of the issues “to be tried.” 227 Ark. at 781, 301 S.W.2d at 445 (emphasis added). The Karr case was decided in 1957 under Ark. Stat. Arm. §§ 43-2110, 43-2111 (1947). The language of those two statutes is identical to the language now combined at Ark. Code Ann. § 16-89-110(a), (b) (1987). The Kan decision necessitates that some evidence must be introduced following an opening statement. We recognized as much in Jackson when we noted that an opening statement “may alert the jury for critical points to be expected to be covered in the testimony to be adduced.” 249 Ark. at 655, 460 S.W.2d at 320.

The defense may not use its “opening statement” to comment upon any evidence previously presented by the State, and cannot outline evidence it does not intend to present. Thus, where no evidence will be introduced following an opening statement, we hold that a defendant has no absolute right to make such a statement. Accordingly, if the trial court assents and the State fails to object, a defendant may be permitted to reserve his opening statement until the close of the State’s case only when the defendant expects to present some evidence.

Affirmed.

       We note that the defendant in Jackson called at least one witness. Jackson v. State, 249 Ark. at 660, 460 S.W.2d at 322-23.

        See also United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring) (“An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument.”)

       Other jurisdictions have come to the same conclusion. See, e.g., United States v. Salovitz, 701 F.2d 17 (2d Cir. 1983); Iowa Code Ann. § 813.2, Rule 18 (l)(a)(3) (2001); N.C. Gen. Stat. § 15A-1221(a)(4), (6) (2001).


text:
    Henry PIFER v. SINGLE SOURCE TRANSPORTATION
    01-807
    69 S.W.3d 1
    Supreme Court of Arkansas
    Opinion delivered March 7, 2002

      Dowd, Harrelson, Moore & Giles, by: Greg Giles, for appellant.

      Huckabay, Munson, Rowlett & Tilley, RA., by: Carol Lockard Worley and Julia L. Busfield, for appellee.
   A NNABELLE CLINTON IMBER, Justice.

Appellant, Henry A. Pifer, was injured at work while returning to his truck from the restroom. The employer, Single Source Transportation, contested his claim for workers’ compensation benefits. The Administrative Law Judge found that Mr. Pifer sustained an injury arising out of and in the course of his employment. In construing Ark. Code Ann. § ll-9-102(4)(B)(iii) (Supp. 2001), the Arkansas Workers’ Compensation Commission reversed the ALJ’s award and dismissed Mr. Pifer’s claim. The Commission found that Mr. Pifer was not performing employment services at the time of the accidental injury. The Arkansas Court of Appeals, in a 4-2 unpublished opinion, reversed the Commission’s decision and remanded for further consideration consistent with Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001). See Pifer u Single Source Transportation, CA 01-86, slip op. (Ark. App. July 5, 2001). This court accepted Single Source’s petition for review pursuant to Ark. Sup. Ct. R. l-2(e) (2001). On appeal, Mr. Pifer contends that the Commission erred in its interpretation of Ark. Code Ann. § 11 —9—102(4) (B) (iii). We agree, and reverse the Commission’s decision.

Standard of Review

Upon a petition for review, we consider a case as though it had been originally filed in this court. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). We view the evidence in a light most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id.

Fads

Henry A. Pifer worked as a truck driver for Single Source Transportation during a seven-year period prior to the accident. On June 7, 1999, Mr. Pifer returned to his employer’s terminal after delivering a load around 11:15 a.m. At that point, according to Mr. Pifer’s testimony, he was in need of a restroom break: “I had to go to the bathroom very bad and when I pulled around, I just locked the truck down — when I say locked down, I mean the brakes, and I run in to use the bathroom.” The truck was left running. After using the restroom upstairs in the office, he spoke briefly with two co-workers and started to return to the truck to do his paperwork, complete his log book, secure the truck, and do a safety check. While returning to his truck, Mr. Pifer was hit on the left side of his back by a co-worker’s pickup, knocking him five to six feet. Had he not been injured, Mr. Pifer testified that he would have done his paperwork, secured the truck, done a post check on the truck, turned in his paper work, and gone home after checking to see if there was another load for him that day.

Employment Services

The pivotal issue presented by this case is whether, pursuant to Act 796 of 1993, codified at Ark. Code. Ann. §§ 11-9-101, et seq. (Repl. 1996, Supp. 2001), Mr. Pifer was performing employment services when he sustained an injury while on a restroom break at an employer-provided restroom located on the employer’s premises. To evaluate Mr. Pifer’s claim and the full Commission’s decision, we are called upon to interpret the phrase “in the course of employment” and the term “employment services” as used in Ark. Code Ann. §§ 11-9-102(4) (A) (i) and 11-9-102(4) (B) (hi) (Supp. 2001). When interpreting a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001); Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998).

Act 796 of 1993 made significant changes in the workers’ compensation statutes and in the way workers’ compensation claims are to be resolved. White v. Georgia-Pacific Corp., supra. Claims arising from injuries occurring before the effective date of Act 796 (July 1, 1993) were evaluated under a liberal approach. Eddington v. City Electric Co., 237 Ark. 804, 376 S.W.2d 550 (1964); Ark. Stat. Ann. § 81-1325(b)(4) (Supp.1979). However, Act 796 requires us to strictly construe the workers’ compensation statutes. Ark. Code. Ann. § 11-9-704(c)(3); White v. Georgia-Pacific Corp., supra. The doctrine of strict construction directs us to use the plain meaning of the statutory language. Edens v. Superior Marble & Glass, supra, and Lawhon Farm Servs. v. Brown, supra.

Act 796 defines a compensable injury as “[a]n accidental injury . . . arising out of and in the course of employment. ...” Ark. Code Ann. § ll-9-102(4)(A)(i). A compensable injury does not include an “[ijnjury which was inflicted upon the employee at a time when employment services were not being performed. ...” Ark. Code Ann. § 11 —9—102(4)(B)(iii) (emphasis added). However, Act 796 does not define the phrase “in the course of employment” or the term “employment services,” Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). It, therefore, falls to this court to define these terms in a manner that neither broadens nor narrows the scope Act 796 of 1993. Ark. Code Ann. § 11-9-1001 (Repl. 1996). When the meaning of a statutory term is ambiguous, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000).

Since 1993, we have twice been called upon to construe the statutory language found in sections ll-9-102(4)(A)(i) and 11-9-102(4) (B)(iii). See White v. Georgia-Pacific Corp., supra, and Olsten Kimberly Quality Care, supra. We have held that an employee is performing “employment services” when he or she “is doing something that is generally required by his or her employer. ...” White v. Georgia-Pacific Corp., 339 Ark. at 478, 6 S.W.3d at 100. We use the same test to determine whether an employee was performing “employment services” as we do when determining whether an employee was acting within “the course of employment.” White v. Georgia-Pacific Corp., supra; Olsten Kimberley, supra. The test is whether the injury occurred “within the time and space boundaries of the employment, when the employee [was], carrying out the employer’s purpose or advancing the employer’s interest direcdy or indirecdy.” White v. Georgia-Pacific Corp., 339 Ark. at 478, 6 S.W.3d at 100 and Olsten Kimberly, supra.

It is well-settled that any interpretation of a statute by this court subsequentiy becomes a part of the statute itself. Night Clubs, Inc. v. Fort Smith Planning Comm’n, 336 Ark. 130, 984 S.W.2d 418 (1999); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). The General Assembly is presumed to be familiar with this court’s interpretations of its statutes, and if it disagrees with those interpretations, it can amend the statutes. Without such amendments, however, our interpretations of the statutes remain the law. Lawhon Farm Servs. v. Brown, supra; Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997). Although aware of our interpretation of the term “employment services” in White v. Georgia-Pacific Corp. and Olsten Kimberley, the General Assembly has not changed section ll-9-102(4)(A)(i) or section ll-9-102(4)(B)(iii), other than to renumber those sections. See 2001 Ark. Acts 1757 and 1999 Ark. Acts 20. Accordingly, this court’s interpretation of the pertinent statutory language remains the law.

Mr. Pifer would have this court either reaffirm the personal-comfort doctrine or hold that a restroom break is a necessary function and directly or indirectly advances the interests of the employer. Conversely, Single Source contends that an employee is not performing employment services during a restroom break, or any personal break, because the personal-comfort doctrine is not consistent with a strict construction of Act 796. Since the enactment of Act 796, we have not directly addressed the personal-comfort doctrine. To automatically accept a personal-comfort activity as providing employment services would impermissibly broaden the requirements of Act 796. On the other hand, to automatically reject a personal-comfort activity as not providing employment services would impermissibly narrow the requirements of Act 796. Instead of following either extreme position, the critical issue is whether the employer’s interests are being advanced either directly or indirecdy by the claimant at the time of the injury. In addressing this issue, we decline to adopt the factors identified by the court of appeals in Matlock v. Blue Cross Blue Shield, supra.

We note that the activity of seeking toilet facilities, although personal in nature, has been generally recognized as a necessity such that accidents occurring while an employee is on the way to or from toilet facilities, or while he or she is engaged in relieving himself or herself, arise within the course of employment. As the court of appeals reasoned in Matlock v. Blue Cross, supra:

Restroom facilities are provided in work settings because eliminating bodily toxins and wastes are natural and ordinary biological processes. Employers provide restroom facilities for the benefit of their customers, to be sure. But they also provide those facilities to accommodate their workers so as to avoid the work interruptions and delays that would certainly occur if workers were forced to leave the employment premises in order to find a public restroom at some distance from the work, their supervisors, and customers.

Matlock v. Blue Cross Blue Shield, 74 Ark. App. at 341-42, 49 S.W.3d at 139. Like the appellant in Matlock, Mr. Pifer had gone to a restroom provided by his employer and was returning to resume the employer’s work when the accident occurred that resulted in his injuries. His conduct in returning to his truck was entirely consistent with the employer’s interest in advancing the work. Everything in the record before us indicates that Mr. Pifer was engaged in conduct permitted by the employer, if not specifically authorized by the employer, and that the employer provided restroom facilities on its premises.

Based on the record in this case, we hold that Mr. Pifer’s restroom break was a necessary function and directly or indirectly advanced the interests of his employer. Consequently, his injury is not excluded from the definition of “compensable injury” under section 11-9-102(4)(B)(iii) because the injury did not occur at a time when he was not performing employment services. The Commission’s decision based on an incorrect interpretation of the law must, therefore, be reversed. In so holding, we overrule all prior decisions by the Arkansas Court of Appeals to the extent that they are inconsistent with this opinion.

Finally, Single Source contends that substantial evidence supports the Commission’s decision because Mr. Pifer stopped momentarily to speak with co-workers before returning to his truck. In support of that argument, Single Source cites a recent decision by court of appeals, Clardy v. Medi-Homes LTC Serv. LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001). The instant case is clearly distinguishable. Unlike Ms. Clardy, Mr. Pifer was not injured while talking with his co-workers.

Reversed and remanded for a determination of benefits.

       Because the issue to be resolved in this appeal is whether Mr. Pifer was performing employment services at the time of the accident, we need not address the nature and extent of his injuries.

       The personal-comfort doctrine states that:
      Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless, in some jurisdictions, the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment.
      Arthur Larson, The Law of Workmen’s Compensation § 21 (2001). Prior to Act 796 of 1993, this court adopted the personal-comfort doctrine in workers’ compensation cases. Coleman’s Bar-B-Que v. Fuller, 262 Ark. 645, 559 S.W.2d 714 (1978).

       We disagree with the statement by the court of appeals in Beavers v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618 (1999), that “the personal-comfort doctrine is no longer the law.” Id. at 155. This court agreed in White v. Georgia-Pacific Corp. that the claimant’s injury was not compensable under the personal-comfort doctrine. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). However, we reversed the Commission’s decision in that case on the ground that substantial evidence did not support the Commission’s determination that the claimant was not performing employment services at the time of his injury. Id.

       “[T]he wants ministered to are so obviously in the category of necessities that no question arises about their being basically in the course of employment. The only issue on which compensation is sometimes denied is that of seeking these facilities in an unreasonable manner.” Arthur Larson, The Law of Workmen’s Compensation § 21.05 (2001).