Turner v. on target/work First ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MICHAEL TURNER, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
ON TARGET STAFFING LLC, Respondent Employer,
WORK FIRST CASUALTY CO, Respondent Carrier.
No. 1 CA-IC 20-0025
FILED 5-6-2021
Special Action - Industrial Commission
ICA Claim No. 20182-890026
Carrier Claim No. 18836871-001
The Honorable Jeanne Steiner, Administrative Law Judge
AFFIRMED
COUNSEL
Jerome Gibson Stewart Stevenson Engle & Runbeck, P.C., Phoenix
By Joseph L. Coughlin
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Lundmark, Barberich, LaMont & Slavin, P.C., Phoenix
By R. Todd Lundmark
Counsel for Respondent Employer and Respondent Carrier
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.
C R U Z, Judge:
¶1 Petitioner Michael Turner asks us to set aside an Industrial
Commission of Arizona (“ICA”) award finding his injury non-
compensable. An administrative law judge (“ALJ”) determined that Turner
had not shown that his injury, which occurred while he was on break at
work, was causally related to his employment. Because the injury was
caused by an accident that did not arise out of Turner’s employment, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 We consider the evidence in a light most favorable to
sustaining the award. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16
(App. 2002). In September 2018, Turner worked in a call center, placed
there by respondent On Target Staffing LLC. The call center had a break
room that employees used to store food, eat lunch, and lounge in during
work breaks. One night, as Turner attempted to open a refrigerator door,
he fell onto his left side. Turner suffered a broken femur for which he
required surgery and implantation of hardware. Turner filed a claim for
workers’ compensation and the claim was denied.
¶3 Turner challenged the denial, testifying that he had fallen
because the refrigerator had moved toward him and knocked him over
when he pulled the door handle and the door did not open. He also claimed
that employees and management knew the refrigerator door was hard to
open. Respondents called several witnesses to deny that the refrigerator
door had ever been hard to open and to deny that complaints had been
made about it. Thus, the explanation of Turner’s fall became the central
issue of contention at the hearing.
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¶4 The best evidence of the cause of Turner’s injury is the video
recording of the fall. The break room surveillance video recording shows
the room contained two full-size refrigerators placed side by side, a sink,
coffee makers, a microwave, and several small tables with chairs. Of note,
one of two recordings in evidence shows Turner walking with a slight limp
and that he is able to open the refrigerator door without difficulty. The limp
is due to prior medical interventions to his left knee. That knee has been
replaced several times since 2006. Medical evidence shows that his left leg
is slightly shorter than his right, which causes him to have a mildly altered
gait.
¶5 The second video captures the moment Turner fell. It shows
that as he reaches out to grab the door handle with his right hand, his right
foot is forward as he starts to pivot his body toward the refrigerator door
and swing around to make room for the door as it opens. Simultaneously,
his left foot starts to cross behind his right foot when it accidentally catches
on his right heel, causing him to lose balance and fall. Turner briefly
maintains his grip on the door handle in an attempt to break his fall but
almost immediately loses it. The refrigerator slides into view as it turns
toward him in response to the weight he has put on the handle, pivoting on
the back left corner and ending up several feet out of place. Turner falls to
the floor on his left hip.
¶6 An ALJ heard from Turner and the lay witnesses noted above,
as well as two doctors who agreed that the injury was caused by the fall and
that Turner was at risk for such a fall due to his age, altered gait, and
medical history related to his left knee. The ALJ also viewed the breakroom
videos. She rejected Turner’s version of how he fell, finding that the
evidence did not establish that “the fridge door [was] stuck when [Turner]
pulled on it to open it or that the fridge was on wheels, moved forward, and
knocked him to the floor.” She concluded that Turner had failed to show
“his risk of falling was in any way peculiar to or increased by his
employment.” After an administrative review in which the ALJ affirmed
her decision, Turner brought this action.
DISCUSSION
¶7 We will affirm an award if it is reasonably supported by the
evidence. Lovitch, 202 Ariz. at 105, ¶ 16. We defer to the ALJ’s resolution
of conflicting evidence and affirm findings if they are supported by any
reasonable theory of the evidence. Perry v. Indus. Comm’n, 112 Ariz. 397,
398-99 (1975). The facts in this case support the ALJ’s decision that Turner’s
employment contributed nothing to the risk of the injury he sustained.
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TURNER v. ON TARGET/WORK FIRST
Decision of the Court
¶8 To prevail on his claim, Turner must show that he suffered an
injury by accident arising out of and in the course of his employment. Ariz.
Rev. Stat. (“A.R.S.”) § 23-1021; Ibarra v. Indus. Comm’n, 245 Ariz. 171, 174,
¶ 14 (App. 2018). There is no question that Turner’s fall was an accident.
Furthermore, the parties agree that, under the personal comfort doctrine,
Turner was acting in the course of his employment while he was lounging
in the break room and using the refrigerator. See Sacks v. Indus. Comm’n, 13
Ariz. App. 83, 84 (1970) (“employees who engage in reasonable acts which
minister to their personal comforts remain within the course and scope of
employment”). Thus, the focus of the inquiry is whether the injury arose
out of employment. To prove that it did, Turner must show a causal
connection between the employment and the injury. See id.¶9 The facts do not show a causal connection between the injury
and the employment. Turner fell because he accidentally tripped himself
while reaching to open the refrigerator door. The risk of falling for Turner
was solely personal due to his previously injured left knee and altered gait,
conditions that had nothing to do with his employment. The ALJ could not
find any defect in the refrigerator, break room, or other aspects of the work
that caused the injury, and neither can we. To borrow language from Sacks,
it does not appear that the risk of falling on his left hip while opening the
break room refrigerator was a risk in any way peculiar to or increased by
Turner’s employment. See id. See also 1 Arthur Larson et al. Larson’s
Workers’ Compensation Law § 9.01(4)(b) (2020) (in an idiopathic fall case, “it
is reasonable to require a showing of at least some substantial employment
contribution to the harm”).
¶10 Turner’s reliance on Goodyear Aircraft Corp. v. Indus. Comm’n,
62 Ariz. 398 (1945) to support his argument is misplaced. In that case, a
soda bottle exploded and injured a security guard as he was putting it into
a cooler at the worksite to drink later while on his lunch break. Id. at 400-
01. Our supreme court held that the injury was compensable because, as a
security guard, the worker was required to eat lunch on the premises. Id.
at 415. Forty-five years later, the court admitted that the Goodyear decision
had confused the “in the course of” component of the compensability
formula with the “arising out of” component:
[T]hese two tests have been confused. For example, in
Goodyear, we said the injury “arose out of” claimant’s
employment because “his employer’s business required him
to be at the place of the accident at the time it occurred.” This
analysis focused on the time and place of the accident which
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TURNER v. ON TARGET/WORK FIRST
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is part of the “in the course of” employment analysis [not the
“arising out of” analysis].
Circle K Store No. 1131 v. Indus. Comm’n, 165 Ariz. 91, 94 (1990) (internal
citation omitted). In Goodyear, a defect in the bottle was the cause of the
explosion. 62 Ariz. at 401. The defect was a condition outside of the control
of either the worker or the employer. In those types of cases, the
responsibility to compensate for injury is usually placed on the employer
rather than on the worker. See 1 Larson’s Workers’ Compensation Law § 9.03(3)
(discussing the Goodyear decision). Thus, Goodyear does not support an
argument that the injury arises out of the employment solely because a
worker is injured while on break.
¶11 Instead, we find the facts in the Sacks case remarkably similar
to those in this case. There, a worker was standing up after using a toilet
on the employer’s premises when she hurt her back in a manner that later
required surgery. 13 Ariz. App. at 83-84. We noted that the mere fact that
the accident occurred on the employer’s premises during work hours was
not enough to show compensability. Id. at 84. Instead, we held there was
no evident causal connection between the employment and the injury that
would support a determination of compensability. Id.
¶12 We conclude by noting that Larson’s treatise favorably
discusses the Sacks decision:
The injury [to Sacks] was held to have occurred in the course
of [Sack]’s employment, pursuant to the personal comfort
doctrine, but the court denied compensation on grounds that
the injury did not arise out of the employment. Note that the
employment component was weak on both the “course” and
“arising” side. As to “course,” [Sacks] was engaged in a
personal comfort activity; as to “arising,” the real cause of
injury was progressive deterioration of a personal weakness,
with no real exertion or mishap related to the employment.
[Sacks] was sufficiently within the course of employment so
that, given some significant element of employment causal
connection, an award could stand.
3 Larson’s Workers’ Compensation Law § 29.01. We find the same analysis
applicable in this case. Therefore, the ALJ correctly concluded that the
causation element had not been shown and Turner was not entitled to
compensation for the injury.
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CONCLUSION
¶13 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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