Curtis v. Lemna

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                ARKANSAS COURT OF APPEALS
                                  DIVISIONS I, II & IV
                                     No. CV-12-219


                                                Opinion Delivered   November 6, 2013
WILLIAM CURTIS
                              APPELLANT         APPEAL FROM THE ARKANSAS
                                                WORKERS’ COMPENSATION
V.                                              COMMISSION
                                                [No. G101427]
MICHAEL LEMNA and
NEW CHAMPIONS GOLF &
COUNTRY CLUB
                    APPELLEES                   AFFIRMED



                             LARRY D. VAUGHT, Judge

       Following a golf-cart accident that occurred at the New Champions Golf Course

(Pinnacle Country Club) in Rogers, Arkansas, the Arkansas Workers’ Compensation

Commission found that appellee Michael Lemna was immune from the negligence claims

asserted by his co-employee, appellant William Curtis. In its resolution of the claim, the

Commission relied on the Arkansas Workers’ Compensation Act’s provision of immunity

to employers and employees who carry out the employer’s duty to maintain a safe workplace.

Curtis argues three issues on appeal: (1) the Commission acted beyond its jurisdiction in

deciding the case, (2) the Commission’s finding that the accident occurred within the course

and scope of the parties’ employment was clearly erroneous, and (3) the Commission’s

extension of an employer’s tort immunity under Arkansas Code Annotated section 11-9-105

(Repl. 2012) to a negligent co-employee is in contravention of article 5 section 32 of the

Arkansas Constitution. We affirm.
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       The pertinent facts are not disputed. Curtis and Lemna were employees of Henkel of

America (d/b/a Dial Corporation), located in Scottsdale, Arizona. The two were roughly

equal in the corporate hierarchy—Curtis worked in the finance division of the sales

department and Lemna worked in operations. Their offices were in close proximity to each

other, and the men had known each other for several years.

       Marc Mollere, the team leader for Dial’s field office in northwest Arkansas, planned

a sales meeting for August 8, 2007, at the Pinnacle Country Club. Mollere’s office served

Wal-Mart and Sam’s Club, two of Dial’s biggest customers. After Curtis suffered an injury

while a passenger in a golf cart operated by Lemna during a game at the sales meeting, Dial

and its workers’ compensation carrier, Zurich American Insurance Company, accepted the

injury suffered by Curtis on August 8, 2007, to be compensable under the Arizona Workers’

Compensation Act. Arizona Act compensation benefits were paid to Curtis pursuant to the

Arizona Act.

       Curtis did not make a claim for workers’ compensation benefits under the Arkansas

Workers’ Compensation Act, and he did not seek damages from Dial Corporation or Zurich

American Insurance Company. However, on September 10, 2008, Curtis filed a tort action

in the Benton County Circuit Court against Lemna and Pinnacle Country Club alleging that

Lemna’s negligence was the proximate cause of the accident and Curtis’s resulting injury.

Lemna filed a motion to dismiss, alleging that he and Curtis were co-employees at the time

of the accident and that the Arkansas Workers’ Compensation Commission had exclusive




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jurisdiction to determine whether Lemna was entitled to tort immunity pursuant to Arkansas

Code Annotated section 11-9-105 (Repl. 2012).

       In its November 23, 2010 order, the circuit court dismissed the case (without

prejudice) for lack of jurisdiction until the issues reserved to the Arkansas Workers’

Compensation Commission could be resolved. Curtis then requested a hearing before the

Commission. He stipulated to most of the facts and agreed to litigate (1) the application (if

any) of the Arkansas Workers’ Compensation Act; (2) whether Curtis and Lemna were acting

in the course and scope of their employment on August 8, 2007; (3) whether Lemna can

claim immunity under the Arkansas Workers’ Compensation Act; and (4) whether an

employer’s tort immunity under Arkansas Code Annotated section 11-9-105 can be

extended to a co-employee consistent with the limitations of article 5, section 32, of the

Arkansas Constitution.

       The evidence at the hearing consisted of testimony (mostly by deposition) of various

employees, including Mark Mollere, who was employed in August 2007, by Dial in its

northwest Arkansas office as the vice-president of sales. He also served as the team leader of

Dial’s sales to Wal-Mart and Sam’s. Mollere testified that he scheduled a meeting at Pinnacle

Country Club on August 8, 2007. The purpose of the meeting was for Dial to review its

business operations, including its financials, sales opportunities, and sales plans. According to

Mollere’s deposition testimony, these sales constituted over a third of Dial’s business so it was

necessary for employees from Dial’s corporate headquarters to attend the meeting, including

Curtis and Lemna (although they were based in Scottsdale, Arizona).


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       Mollere further testified that he was responsible for setting up the details of the

meeting, which was held in the board room of the Pinnacle Country Club. He

acknowledged that he arranged for food to be served at lunch and for the meeting

participants to play golf that afternoon. Mollere paid (with a company credit card) for the

meeting facility, golf fees, clubs, and carts. He testified that the golf outing was a team-

building exercise that benefitted Dial and that he aimed to create a relaxed environment for

the “free flow of thoughts and ideas.” He further testified that when he arranged the golfing

groups, he mixed those who “did not normally have access to corporate employees together

with corporate employees” in order to exchange dialogue.

       Also testifying by deposition was Curtis, who stated that he worked in Dial’s finance

department in Scottsdale, Arizona, and that his primary job duties were to work with sales

organizations in terms of pricing, promotion, and customer profitability analysis. Curtis

testified that he arrived at the meeting on August 8, 2007, in time for his particular

presentation. Thereafter, he ate lunch with the remainder of the participants and then played

golf. Curtis testified that Mollere arranged for club rental and the golf cart. Curtis stated that

he considered his participation in the golf outing to be a matter of pleasure as opposed to it

being work for Dial. Curtis also acknowledged that he had received workers’ compensation

benefits for his injury in Arizona.

       Lemna also testified via deposition, stating that in August 2007, he worked for Dial

and was based in Scottsdale, Arizona, as the director of “channel development.” Lemna

testified that on August 8, 2007, he and Curtis were sent by Dial to Northwest Arkansas for


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a meeting with Dial’s “Wal-Mart team” and that on the morning of August 8, 2007, he and

Curtis attended the meeting at the Pinnacle Country Club, ate lunch, and then played golf.

Lemna testified that he thought that the golf outing was mandatory because it was included

as part of the meeting agenda. According to Lemna, he and Curtis were assigned to the same

golf cart, and they took turns driving the cart, depending on who was making a shot.

       Specific to this appeal, Lemna testified that on the tee shot at #6, both he and Curtis

hit shots that “went to the right, almost in the fairway of an adjacent hole.” In order to

recover their stray golf balls, they drove their cart across a bridge. After hitting their second

shots and subsequently finishing the hole, they returned to their cart. Lemna testified that in

an attempt to avoid driving on the green, he took a wider route around the green and this

resulted in him driving the cart over a retaining wall. Lemna stated that the wall could not

be seen from his vantage point, and by the time they saw the retaining wall, it was too late

to stop the golf cart. According to Lemna, both he and Curtis were thrown out of the cart

upon impact. Lemna testified that when asked if they were “okay,” Curtis replied that his

shoulder did not feel right. Based on Curtis’s complaint of pain, an ambulance was called to

the scene, and Curtis was taken to the hospital where he underwent surgery. The record

reflects that Curtis underwent an additional surgical procedure upon his return to Arizona.

       Our review of this case on appeal is limited to the question of whether the

Commission’s decisions concerning the jurisdiction, the application, and the immunity

provided by the Arkansas Workers’ Compensation Act are supported by substantial evidence.

Honeysuckle v. Curtis H. Stout, Inc., 

, 

. In so doing, we view all


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evidence in the light most favorable to the Commission’s decisions and reverse only if

substantial evidence does not support the Commission’s determination. 

 Substantial

evidence is evidence that a reasonable mind might accept as adequate to support a

conclusion. 

 Further, if a fair-minded person could reach the same conclusions as the

Commission, our standard of review requires us to affirm. 

       First we consider the jurisdiction of the Arkansas Workers’ Compensation Act. To

the extent that Curtis argues on appeal that Arkansas lacks jurisdiction or that application of

Arkansas workers’ compensation law is not proper, it should be noted that Curtis filed a tort

claim in Arkansas and specifically requested a hearing before the Commission. Therefore,

Curtis stipulated that Arkansas had jurisdiction and that the application of Arkansas workers’

compensation law was appropriate. Furthermore, based on our supreme court’s holding in

Williams v. Johnson Custom Homes, 

, 

 (2008), because Curtis

could seek benefits under Arkansas workers’ compensation law if he so chose, the

Commission had a legitimate interest in the injury, and correspondingly had the right to

apply Arkansas’s law simultaneously or successively with Arizona’s. 

       Additionally, when a party to a tort claim in Arkansas raises a question of whether a

person enjoys immunity as an employer under the Workers’ Compensation Act, the

Commission must first determine that issue. Miller v. Enders, 

, ___ S.W.3d ___.

Accordingly, we are satisfied that the Commission appropriately answered the questions

relating to applicability of the Act and its co-employee immunity provision to the case before

us and that the Commission’s holdings were squarely within its jurisdictional bounds.


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       Next, we consider whether there is substantial evidence to support the Commission’s

decision that Curtis and Lemna were acting within the course and scope of their employment

on August 8, 2007. In order for an accidental injury to be compensable, it must arise “out

of and in the course of employment.” 

(4)(A)(i) (Repl. 2012). A

compensable injury does not include injuries “inflicted upon the employee at a time when

employment services were not being performed.” 

(4)(B)(iii). The

same test is used to determine whether an employee was performing employment services

as is used when determining whether an employee was acting within the course and scope

of employment. Pifer v. Single Source Transp., 

, 

 (2002). The

paramount question 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 either directly or indirectly. White v. Georgia-Pacific Corp., 

, 

 (1999).

       Although participation in the golf outing was not mandatory, the activity was

provided by Dial Corporation, at Dial’s expense. According to the testimony of Mollere, the

purpose of the golf outing was a “team-building exercise” that ultimately benefitted Dial. In

reaching its decision, the Commission found Mollere to be credible and relied on his

testimony “that he wanted a relaxed environment for free flow of thoughts and ideas” and

that he “specifically paired groups in an effort to mix employees from Dial’s northwest

Arkansas office with employees from the Scottsdale office in order to create a dialogue.”

Based on this testimony, the Commission determined that the golfing activity occurred


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during the space and bounds of employment and that “Curtis and Lemna were carrying out

Dial’s purpose or advancing Dial’s purpose directly or indirectly.” After reviewing the

evidence in the light most favorable to the Commission’s decision, we are satisfied that the

decision is supported by substantial evidence and should be affirmed. Furthermore, on this

point, we note that Curtis is attempting to have his cake and eat it too. The fact remains that

he has received workers’ compensation benefits in Arizona, which is contrary to his current

position that he and Lemna were simply participating in a voluntary event—not acting in the

course and scope of their employment at the time of his injury.

       Curtis also contends that the golf cart did not constitute a place of employment.

However, we have determined previously that the definition of a work place is not static in

the sense that it is limited to an employer’s physical premises or an actual place of business.

See Rea v. Fletcher, 

, 

 (1992). Instead, work places have been

recognized as including activity that takes place in a motor vehicle and even roadside. Brown

v. Finney, 

, 

 (1996); Barnes v. Wilkiewicz, 

, 

 (1990). Here, although Curtis and Lemna were in a golf cart at the time of the

injury, the Commission concluded that they were “nevertheless acting within the course and

scope of their employment at the time of the injury.” The fact that the golf cart was not a

physical business location or Dial’s normal place of business is of no consequence. Because

there is substantial evidence to support the Commission’s conclusion, we affirm on this point

as well.




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       Curtis also argues that the extension of the doctrine of immunity to actions in tort to

co-employees is a violation of article 5, section 32 of the Arkansas Constitution as amended

by amendment 26. However, this issue is now moot based on our supreme court’s January

21, 2013 opinion, Miller v. Enders, 

, ___ S.W.3d. ___. But the question remains

whether Lemna is eligible for the tort immunity. The Commission concluded that although

Lemna was not acting in a supervisory role at the time of the golf-cart accident, he was acting

as an arm of his employer by fulfilling the employer’s duties to transport its employee and

thus was entitled to the employer’s immunity.

       Immunity from a tort action is only extended to supervisors or co-employees if, at the

time of the accident, they are “fulfilling the employer’s duty to provide a safe place to work”

and are essentially acting as “an arm of the employer.” Id. at 8, ___ S.W.3d at ___. In such

cases, because the employer is immune from suit in tort, a co-employee who is acting on

behalf of the employer by providing a safe place to work is entitled to that same immunity.

Id., ___ S.W.3d at ___. The determination of whether the Commission correctly concluded

that Lemna was fulfilling Dial’s duty to provide a safe place to work is the most difficult facet

of the case because it involves a question of statutory construction, which we review de

novo. McLane So., Inc. v. Davis, 

, 

 (2006).

       In considering whether employer immunity can be extended to Lemna under Arkansas

workers’ compensation law, we are guided by the Miller opinion, where our supreme court

provided a thorough discussion of the progression of tort immunity for co-employees. Miller,

, ___ S.W.3d. ___. In Miller, our supreme court stated that all cases interpreting


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Arkansas’s workers’ compensation statutes have become part of the statutes themselves, short

of legislative amendment. The court further instructed that it

       has consistently interpreted 

 to extend immunity to co-employees, such as Enders, for actions arising from the alleged failure to provide a safe
       workplace because those employees are charged with the employer’s nondelegable
       duty of providing a safe workplace . . . . We have consistently afforded immunity to
       co-employees that are acting as an arm of the employer. This extension does not limit
       recovery; it cloaks certain co-employees in limited fact scenarios with immunity as an
       employer when they are fulfilling their employer’s duties to provide a safe work place.

, ___ S.W.3d at ___. The supreme court in Miller left all prior case law intact, and it

provided further explanation of the distinction between co-employees who are fulfilling an

employer’s responsibility to provide a safe place to work and employees who are simply

carrying out a separate individual duty. In developing this distinction and ultimate extension

of co-employee immunity, the court relied on the precedential history of employer,

supervisor, and co-employee tort immunity.

       In King v. Cardin, King was driving a dump truck, which backed over a fellow

employee named Dyer, killing him. 

, 

 (1959). Dyer’s estate sued

King as a third-party tortfeasor alleging that King was negligent in his operation of the truck.

 at 930–31, 319 S.W.2d at 216–18. The supreme court held that King was not immune,

noting that the co-employee was not fulfilling the employer’s responsibility to provide a safe

work place; rather, he was merely attempting to carry out his separate, individual duty as an

employee to drive the dump truck used in asphalt operations. 

 229 Ark. at 931–32, 319

S.W.2d at 216–17.




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       In Simmons First National Bank v. Thompson, our supreme court held that because an

employer is immune from tort action for a negligent failure to provide employees with a safe

place to work, that same immunity also protected supervisory employees when their duties

involved overseeing and discharging the responsibility of providing a safe place to work. 

, 

 (1985). This immunity was extended to nonsupervisory

employees in Allen v. Kizer, 

, 

 (1987).

       In Barnes v. Wilkiewicz, the employee filed a tort action against his supervisor for

injuries he sustained when they were working on a company truck that had stalled along a

road. 

, 

 (1990). The employee alleged that his supervisor had

negligently parked the truck partly in the roadway and that the negligence was the proximate

cause of his injuries that occurred when another motorist struck the parked vehicle. 

 at

177–78, 

. Our supreme court held that the supervisor was immune from

suit because the employee’s claim amounted to one of failure to provide a safe work place

and that the employee was injured during and within the course and scope of his

employment because the accident scene was the workplace as the job required repair of a

stalled company truck, which was within a supervisory capacity. 

 at 178–79, 783 S.W.2d

at 37–39.

       In Rea v. Fletcher, 

, 

 (1992), Rea filed a tort action

against Fletcher, a co-employee, alleging that Fletcher negligently operated a vehicle in

which Rea was riding. 

, 

. In Rea, the employer provided

transportation from a designated parking lot to the work site and back during lunch and after


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work. 

 at 10–11, 

. On the day of the accident, Fletcher’s supervisor

asked him to bring his own truck to the work site for the purpose of transporting employees

back and forth for lunch because company trucks were not available. 

 at 11–12, 832

S.W.2d at 514–15. While riding in Fletcher’s truck, Rea fell out of the back of the truck and

sustained a spinal injury. 

, 832 S.W.2d at 514–15. We affirmed the trial court’s

summary judgment in favor of Fletcher and stated that assuming arguendo that Fletcher had

negligently operated his private vehicle, he was immune from suit because providing

transportation from the employer-designated parking area to the job site involved a duty to

provide a safe place to work. 

, 832 S.W.2d at 514–15.

       Our supreme court confirmed this line of reasoning in Brown v. Finney. 

,

 (1996). Brown and Finney worked for ConAgra as part-time employees.

, 

. Neither Brown nor Finney had supervisory duties within the

company, and they were transported in a company van to their respective job sites. 

 at

693–94, 932 S.W.2d at 770–71. While on their way from one work site to another, the van

driven by Finney overturned and Brown was injured. 

 932 S.W.2d at 770–71. He sued

Finney in tort. 

 at 694–95, 

. On appeal, it was determined that it was

ConAgra’s duty to provide its employees with a safe place to work and that the duty could

not be delegated to its employees—supervisory or otherwise—and that while driving the

company van Finney was acting “as an arm of the employer.” 

 at 697–99, 

.




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       Relying on both Rea and Brown, cases where a co-employee was performing the

employer’s duty to provide a safe place to work for employees while operating a vehicle, the

Commission concluded that when Lemna was driving the golf cart in the course and scope

of his employment, he was fulfilling Dial’s duty to provide a safe place to work for Curtis.

After a careful review of the evidence and the development of co-employee immunity law

in Arkansas, we affirm the decision of the Commission because there is substantial evidence

to support its conclusion on this question. Once the Commission correctly determined that

the golf outing was within the workplace bounds, it was logical to conclude that the

employer had a duty—a non-delegable duty—to provide a safe place to work. In this case,

Lemna was engaged as an “arm of the employer” when he provided transportation within

the workplace environment (as was Curtis when taking his turn driving the golf cart).

       We also note that the Commission’s resolution of the co-employee immunity

question in this case supports the exclusive-remedy provision of our workers’ compensation

law, which favors both the employer and the employee. Hickey v. Gardisser, 

, 

 (noting that courts are to take a narrow view of any attempt

to seek damages beyond that favored, exclusive remedy of workers’ compensation benefits).

Based on the facts of this case, we are satisfied that the Commission’s resolution of Curtis’s

claim is logically, statutorily, and constitutionally sound. We also conclude that the evidence

presented at the hearing, when considered in the light most favorable to the Commission’s

decision, is sufficiently substantial. As such, the decision of the Commission is affirmed in all

respects.


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       Affirmed.

       PITTMAN, GRUBER, GLOVER, and BROWN, JJ., agree.

       WYNNE, and WHITEAKER, JJ., concur in part; dissent in part.

       HIXSON, and WOOD, JJ., dissent.

       PHILLIP T. WHITEAKER, Judge, concurring in part and dissenting in part. I agree

with the majority opinion’s conclusions that the Arkansas Workers’ Compensation

Commission correctly exercised its jurisdiction, that appellant William Curtis was injured

within the course and scope of his employment, and that the supreme court’s decision in

Miller v. Enders, 

, ___ S.W.3d ___, renders moot Curtis’s argument concerning

the constitutionality of co-employee immunity. I must respectfully dissent, however, from

the majority’s conclusion that appellee Michael Lemna is entitled to immunity from Curtis’s

tort action.

       Arkansas Code Annotated section 11-9-105 (Repl. 2012) provides immunity to an

employer from tort actions for injuries arising out of employment. In Neal v. Oliver, 

, 

 (1969), the supreme court held that the duty to provide a safe place to

work is that of the employer and cannot be delegated to an employee. The court has

extended employer immunity and expanded the duty to provide a safe work place to

employees in two fact-specific situations. First, immunity has been extended for negligent

failure to provide a safe work place to supervisory employees when their general duties

involve the overseeing and discharge of a safe work place on behalf of the employer. See

Simmons First Nat’l Bank v. Thompson, 

, 

 (1985). Second,


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immunity has been extended for negligent failure to provide a safe work place to non-

supervisory employees when the employee’s duties involved the duty to provide a safe work

place. See Allen v. Kizer, 

, 

 (1987).

       Both of these exceptions are fact-driven; that is, whether an employee maintains a

supervisory status and whether the duties of the supervisory position involve overseeing and

discharging a safe work place depends on the facts of the case. Similarly, whether a non-

supervisory employee’s job description involves a duty to provide a safe work place is

dependent on the facts. For example, in Allen, a worker died by electrocution from the

employer’s machinery. Jones, the non-supervisory employee, was a maintenance employee.

His job duties were to check and repair the electrical equipment, including the equipment

that caused the death. Under those facts, the supreme court held that Jones was acting on

behalf of the employer to provide a safe work place and extended immunity to him.

       In Rea v. Fletcher, 

, 

 (1992), Rea and Fletcher were

both employed at a construction site. The employer instructed the employees to park off-site,

and the employer provided a shuttle to the construction site. On the day of the injury, the

employer instructed Fletcher to use his personal vehicle to transport employees to the job

site. Rea fell out of the back of Fletcher’s vehicle and was injured. Given these facts, the

supreme court determined that Fletcher, in providing the shuttle, was acting on behalf of the

employer to provide a safe work place and extended immunity to him.

       Most recently, in Miller v. 

 the supreme court held that immunity will

be extended to a non-supervisory co-employee where the co-employee is charged with the


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employer’s duty to provide a safe workplace. There, Enders was the pilot of an air-ambulance

helicopter. The helicopter crashed as he was piloting it, and Miller, the flight nurse, and

Bratt, an EMT, were injured in the crash. The supreme court held that the record

demonstrated that Enders was a co-employee charged with the employer’s duty to provide

a safe workplace: “Enders’s sole responsibility was to operate the workplace, a roving

helicopter, in a safe manner and to safely transport patients. . . . Further, as the pilot-in-

command, Enders was delegated the authority concerning matters of flight safety and aircraft

operation.” Miller, 

, at 7–8, ___ S.W.3d ___, ___. Because Enders had been

specifically charged with the employer’s nondelegable duty of providing a safe workplace,

the supreme court held that Enders was entitled to immunity.

       As noted by the majority opinion, the supreme court in Miller held that co-employee

immunity “cloaks certain co-employees in limited fact scenarios with immunity as an employer

when they are fulfilling their employer’s duties to provide a safe work place.” Miller, 

, ___ S.W.3d at ___ (emphasis added). I dissent from the majority opinion

because I do not believe, under the specific facts of this case, that the employer’s immunity

should be extended to Lemna. Lemna and Curtis were nothing more than co-employees.

Neither had supervisory capacity over the other, so the first exception, set forth in 

 does not apply. Moreover, while Curtis and Lemna were engaged in an employer-

sponsored event, nothing about Lemna’s participation in the event related directly to

providing a safe work place. Therefore, the second exception found in 

 does not

apply either. Finally, participation in the golf outing was not a specific duty of Lemna’s


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position with the employer; as such, unlike Rea and Miller, there was no direct command or

sole responsibility devolved from the employer onto Lemna to take any kind of specific

action pertaining to the event.

       Based on the facts of this case, I would not find that Lemna was charged with the

responsibility of fulfilling Dial’s duty to provide a safe work place to Curtis, and I would

reverse the Commission’s conclusion that Lemna was entitled to his employer’s immunity.

       WYNNE, J., joins in this opinion.



       KENNETH S. HIXSON, Judge, dissenting. I respectfully dissent because there is no

substantial evidence to support a finding that Curtis and Lemna were providing employment

services when Curtis was injured in the golf cart. Injuries that occur during recreational or

social activities for the employee’s personal pleasure are not compensable. 

(4)(B)(ii).    And, injuries that occur when an employee is not providing

employment services are not compensable. 

(4)(B)(iii). Whether

one is providing employment services must be determined within the context of individual

cases, employments, and working relationships, not generalizations made devoid of practical

working conditions. Engle v. Thompson Murray, Inc., 

, 

(2006) (recreational activity was deemed employment services where retreat was mandatory

and injured employee was in charge of retreat activities). Recreational or social activities are

within the course and scope of employment when the employer, by expressly or impliedly

requiring participation, brings the activity within the orbit of the employment. Arthur


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Larson, Larson’s Workers’ Compensation Law, § 22.01. Dial’s representative agreed in his

testimony that “this was a golf outing made available to them if they wanted to participate,”

and that he asked meeting attendees in advance whether they planned to participate, in order

to make arrangements. The record was clear that some of the meeting attendees did not

participate in the recreational golf outing.      The employer expressly did not require

participation, and there was no evidence that any “free flow of ideas” or “team building”

occurred among corporate and other Dial employees on the golf course. Simply put, this was

an optional golf outing for pure recreation, generously paid for by Dial. Payment for

recreation alone does not constitute substantial evidence of employment services within the

meaning of the Workers’ Compensation Act.

       Further, assuming arguendo, that I would find the injury occurred during the scope

of employment, there is no substantial evidence to support a finding that appellee Michael

Lemna was entitled to immunity from tort. This cloak of immunity is to be given to a co-

employee under limited fact scenarios when that co-employee is charged with, and fulfilling,

the employer’s duty to provide a safe place to work. Miller v. Enders, 

, ___

S.W.3d. ___; King v. Cardin, 

, 

 (1959). Something more than

just being present on the “job” is required to place Lemna in the shoes of his employer for

purposes of tort immunity. Lemna was not “charged with” transporting Curtis around the

golf course.

       WOOD, J., joins in this dissent.

       Blair & Stroud, by: H. David Blair and Barrett S. Moore, for appellant.
       Smith, Williams & Meeks, LLP, by: Charles H. Crocker, Jr., for appellee.




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