Fayette A/C /Colorado v. Rickard ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
FAYETTE A/C, Petitioner Employer,
COLORADO CASUALTY, Petitioner Carrier,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
MARTIN RICKARD (Deceased), Respondent Employee.
No. 1 CA-IC 14-0045
FILED 3-26-2015
Special Action - Industrial Commission
ICA Claim No. 20130-460004
Carrier Claim No. 205131340
The Honorable Joseph L. Moore, Administrative Law Judge
AWARD AFFIRMED
COUNSEL
Klein, Doherty, Lundmark, Barberich & LaMont, P.C., Phoenix
By Lisa M. LaMont
Counsel for Petitioner Employer and Carrier
Industrial Commission of Arizona, Phoenix
By Andrew F. Wade
Counsel for Respondent
Taylor & Associates, PLLC, Phoenix
By Bruce E. Rosenberg
Counsel for Respondent Employee
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.
B R O W N, Judge:
¶1 This is a special action review of an Industrial Commission of
Arizona (“ICA”) award and decision upon review for a compensable claim.
The issue raised is whether the administrative law judge (“ALJ”) erred by
finding that the respondent employee’s injury causing his death arose in
the course of his employment. Finding no error, the award is affirmed.
BACKGROUND
¶2 The petitioner employer, Fayette A/C (“Fayette”), is a full
service residential and commercial air conditioning company with ten
employees. The decedent was employed by Fayette as a service manager
and crane truck operator. Fayette was hired by a roofing company to use
its crane truck to remove and reset an air conditioning unit on a residence
during a roofing project. Fayette sent the decedent and two other
employees to perform this job. Of the three, only the decedent was trained
to operate the crane truck.
¶3 Due to a roofing delay, the Fayette employees were unable to
reset the air conditioning unit and the decedent called Fayette to report that
they were going to return to the office. Before leaving, however, the
homeowner asked the decedent to move several large poles with the crane
truck. The decedent agreed, and in the process of moving one of the poles,
the crane truck tipped over, causing head injuries to the decedent that
ultimately caused his death.
¶4 During the decedent’s hospitalization, a workers’
compensation claim was filed and, after his death, a claim for dependent’s
death benefits was filed. The petitioner carrier, Colorado Casualty
(“Colorado”), denied the requested benefits, and the decedent’s widow
timely requested a hearing. At the hearing, the ALJ heard testimony from
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FAYETTE A/C /COLORADO v. RICKARD
Decision of the Court
the decedent’s widow and Fayette’s owner, Mark Fayette. The parties filed
post-hearing legal memoranda, and the ALJ entered an award for a
compensable claim. Colorado requested administrative review, but the ALJ
summarily affirmed the Award. Colorado next timely sought review by
this court, which has jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(2), 23-951(A), and Arizona Rule of
Procedure for Special Actions 10.
DISCUSSION1
¶5 To dbe compensable, an injury must arise out of and in the
course of employment. See A.R.S. § 23-1021(A). Based on Colorado’s
framing of the issue and concession at oral argument, the only question
before us is whether the injury occurred in the course of employment. “An
injury or accident occurs in the course of [] employment if the employee is
injured while [] doing what [an employee] so employed may reasonably do
within a time during which he is employed and at a place where he may
reasonably be during the time.” Royall v. Indus. Comm’n, 106 Ariz. 346, 349,
476 P.2d 156, 159 (1970) (internal quotation omitted). Stated differently, “in
the course of” pertains to the time, place, and circumstances of the accident
in relation to the employment. Id.; Goodyear Aircraft Corp v. Gilbert, 65 Ariz.
379, 383, 181 P.2d 624, 626 (1947).
¶6 The ALJ applied the totality of circumstances test to conclude
that the decedent’s injury occurred in the course of his employment.2
1 This court defers to the ALJ’s reasonably supported factual findings,
but independently reviews whether a claimant’s injury arose out of and in
the course of his employment, a question of law. See, e.g., Finnegan v. Indus.
Comm’n, 157 Ariz. 108, 109, 755 P.2d 413, 414 (1988).
2 For the first time, in the reply brief on appeal, Colorado argues that
the ALJ erred by utilizing this test. In general, this court will not consider
an issue on appeal that was not raised before the ALJ. See T.W.M. Custom
Framing v. Indus. Comm’n, 198 Ariz. 41, 44, ¶ 4, 6 P.3d 745, 748 (App. 2000).
This rule stems in part from the requirement that a party must develop its
factual record before the agency and give the ALJ an opportunity to correct
any errors. Id. Furthermore, addressing the merits of the claim, we note
that the totality of the circumstances test has been adopted and applied by
our supreme court. Finnegan, 157 Ariz. at 110, 755 P.2d at 415 (“Whether an
activity is related to the claimant’s employment-–making an injury
sustained therein compensable—will depend upon the totality of the
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FAYETTE A/C /COLORADO v. RICKARD
Decision of the Court
Colorado concedes the decedent’s injury occurred during the time and
place of employment, but argues it did not occur in the course of his
employment because the decedent did not have the employer’s permission
to operate the crane truck to move the poles and his actions did not directly
benefit the employer. Thus, the narrow question here is whether the
performance of an unpaid favor for the homeowner was an employment-
related activity that the decedent could reasonably be expected to
undertake. See State Compensation Fund v. Keefe, 22 Ariz. App. 311, 313, 526
P.2d 1266, 1268 (1974).
¶7 Deciding the “reasonably be expected to undertake” inquiry
focuses on various factors, including: whether the activity benefited the
employer; whether the activity was performed with the employer’s
permission; whether the employer furnished the equipment to carry out the
activity; whether the employee was compensated at the time of the activity;
and whether the activity was primarily for the employee’s personal
enjoyment. Truck Ins. Exch. v. Indus. Comm’n, 22 Ariz. App. 158, 160, 524
P.2d 1331, 1333 (1974).
¶8 Addressing these factors in turn, the ALJ found that Fayette
could have received goodwill from this favor, a finding supported in the
record. Fayette frequently performed work for this roofing company and
the record supports a finding that it was in Fayette’s best interests to keep
the roofing company happy by keeping its customers happy.
¶9 Although the decedent did not have Fayette’s express
permission to perform the favor, Mark Fayette testified, “I do favors for
guys all the time . . . .” The decedent’s widow also testified that Mark told
her, “that it was something that he probably would have done also if he
would have been there.” Colorado argues that this is contrary to Fayette’s
“call-back policy,” but the record supports a finding that the call-back
policy only applied to changes to a job’s work order that changed the price
of Fayette’s bid on a job and not to an unpaid favor. We also reject
Colorado’s argument that the decedent abandoned his employment by
performing the favor. As discussed above, he was at his appointed job site
providing a service on behalf of the company.
¶10 Finally, we are not persuaded that the authorities relied on by
Colorado, Gonzales v. Industrial Commission, 23 Ariz. App. 179, 531 P.2d 555
circumstances.”). Accordingly, the court rejects Colorado’s purported
challenge to the ALJ’s use of the totality of the circumstances test.
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FAYETTE A/C /COLORADO v. RICKARD
Decision of the Court
(1975), and Gaumer v. Industrial Commission, 94 Ariz. 195, 382 P.2d 673
(1963), compel a different outcome.
¶11 In Gonzales, the claimant was injured on his lunch hour while
operating a piece of heavy equipment that he borrowed from another
employee to collect scrap wood for his personal use. 23 Ariz. App. at 180,
531 P.2d at 557. Although the employer permitted an employee to take
scrap wood for personal use, the employer specifically regulated the
activity and required the employee to obtain a pass “which would allow
him to collect the wood in his own private vehicle after working hours.” Id.
This court upheld the ICA’s determination that the claim was
noncompensable, concluding the claimant sustained the injury while using
the “employer’s equipment to accomplish a task solely for his own personal
benefit,” and the injury therefore did not arise out of and in the course of
employment. Id. at 182, 531 P.2d at 559. Unlike the circumstances in
Gonzales, in this case the decedent did not leave his work area, use
equipment not assigned to him, or act for his own personal benefit. Nor
was he specifically required to obtain authorization to perform an unpaid
favor.
¶12 In Gaumer, the employee was a pilot and an aircraft mechanic
who was contacted at home by an airplane seller and asked to deliver a
plane to its Mexican purchaser. 94 Ariz. at 197, 382 P.2d at 674. The
employee told his employer that he was going to fly it during his lunch hour
to familiarize himself with it prior to the delivery flight. Id. Neither he nor
his employer were going to be compensated for the plane’s delivery. Id.
During the lunchtime test flight, the engine failed, the plane crashed, and
the employee was killed. Id.
¶13 On those facts, our supreme court upheld the ICA’s decision
denying a claim by the employee’s widow for death benefits. Id. at 199, 382
P.2d at 675. The court found that there was insufficient benefit to the
decedent’s employer to bring this injury within the course of employment
because the employer did not profit from the sale or delivery of the airplane
nor had it serviced the plane. 94 Ariz. at 198, 382 P.2d at 675. The court
noted that the only possible benefit for the employer was goodwill or
potential future customers. Id. at 198-99, 382 P.2d at 675. Gaumer is
distinguishable because this decedent was at his assigned job site, using his
employer’s equipment, and was being paid when he performed this favor
for the homeowner.
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FAYETTE A/C /COLORADO v. RICKARD
Decision of the Court
CONCLUSION
¶14 Because the evidence supports the ALJ’s determination that
decedent’s injury arose out of and in the course and scope of his
employment, we affirm the award.
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