Svienty v. Corrpro ( 2015 )


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  •                         NOTICE: NOT FOR PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
    PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
    JOSEPH SVIENTY, Petitioner,
    v.
    THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
    CORRPRO COMPANIES, INC., Respondent Employer,
    LIBERTY MUTUAL CORP., Respondent Carrier.
    No. 1 CA-IC 14-0034
    FILED 1-6-2015
    Special Action - Industrial Commission
    ICA Claim No. 20131-690204
    Carrier Claim No. WC608-A7253
    Robert F. Retzer, Administrative Law Judge
    AWARD AFFIRMED
    COUNSEL
    Taylor & Associates, PLLC, Phoenix
    By Dennis R. Kurth
    Counsel for Petitioner Employee
    Industrial Commission of Arizona, Phoenix
    By Andrew F. Wade
    Counsel for Respondent
    Klein, Doherty, Lundmark, Barberich & LaMont, PC, Phoenix
    By Lisa M. LaMont
    Counsel for Respondents Employer and Carrier
    MEMORANDUM DECISION
    Judge Andrew W. Gould delivered the decision of the Court, in which
    Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma
    joined.
    G O U L D, Judge:
    ¶1            This is a special action review of an Industrial Commission of
    Arizona (“ICA”) award and decision upon review for a noncompensable
    claim. The issue to be resolved is whether the administrative law judge
    (“ALJ”) erred by finding that the petitioner employee’s (“claimant’s”)
    injury did not arise out of his employment. Because the ALJ did not err, we
    affirm the Award.
    I. Jurisdiction and Standard of Review
    ¶2            This court has jurisdiction pursuant to Arizona Revised
    Statute (“A.R.S.”) sections 12-120.21(A)(2) (West 2014), 23-951(A), and
    Arizona Rule of Procedure for Special Actions 10 (2009).1 On appeal, 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).
    II. Procedural and Factual History
    ¶3            Respondent employer Corrpro Companies, Inc. (“Corrpro”)
    hired claimant to work in its lightning protection division. After
    completing required training and certification, he was sent to Arkansas as
    part of a Corrpro team to help install a lightning protection system. Several
    days into the job, after using a small hand-held jackhammer, claimant
    began to experience back pain. He returned to the hotel where the team
    was housed during the project, and when he bent over to remove his work
    1      Absent material revisions after the relevant dates, statutes and rules
    cited refer to the current version unless otherwise indicated.
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    SVIENTY v. CORRPRO
    Decision of the Court
    boots, he experienced a sudden onset of excruciating back pain and lost
    control of his bladder.
    ¶4           Claimant returned to Phoenix and sought medical attention.
    A magnetic resonance imaging (“MRI”) with contrast revealed neurological
    damage, and he underwent lumbar surgery. Claimant filed a workers’
    compensation claim, which was denied by the respondent carrier, Liberty
    Mutual Corp. (“Liberty Mutual”), and he timely requested an ICA hearing.
    ¶5           The ALJ held two hearings and heard testimony from
    claimant and three of his coworkers. Both parties filed legal memoranda,
    and the ALJ entered an award for a noncompensable claim. After noting
    consideration of the legal memoranda, the ALJ stated:
    5. After a careful review of all the evidence, the undersigned
    is more persuaded by Defendant Insurance Carrier’s
    Memorandum and therefore finds that the Applicant did
    meet the in the course and scope of but not the arising out of
    requirement for a compensable claim.
    Claimant requested administrative review, but the ALJ summarily affirmed
    the Award. Claimant next timely sought review by this court.
    III. DISCUSSION
    ¶6             To be compensable, an injury must arise out of and in the
    course of employment. See A.R.S. § 23-1021(A). “Arising out of” is defined
    as the origin or cause of the injury. Royall v. Indus. Comm’n, 
    106 Ariz. 346
    ,
    349, 
    476 P.2d 156
    , 159 (1970); Goodyear Aircraft Corp. v. Gilbert, 
    65 Ariz. 379
    ,
    383, 
    181 P.2d 624
    , 626 (1947). “In the course of” pertains to the time, place,
    and circumstances of the accident in relation to the employment2. 
    Royall, 106 Ariz. at 349
    , 476 P.2d at 159; Goodyear Aircraft 
    Corp, 65 Ariz. at 383
    , 181
    P.2d at 626. These tests are interrelated, but each must be evaluated and
    satisfied independently. See Noble v. Indus. Comm’n, 
    188 Ariz. 48
    , 52-53, 
    932 P.2d 804
    , 808-09 (App. 1996) (stating that the arising out of and in the course
    of tests are not independent, but are both part of a single test known as the
    “quantum theory of work connection.”); Circle K. Store No. 1131 v. Indus.
    2       The Arizona Supreme Court has held that “the issue is not whether
    the injury occurred within the scope of employment, but whether it occurred
    in the course of employment,” since course of employment is a broader
    concept. 
    Finnegan, 157 Ariz. at 110
    , 755 P.2d at 415.
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    SVIENTY v. CORRPRO
    Decision of the Court
    Comm’n, 
    165 Ariz. 91
    , 94, 
    796 P.2d 893
    , 896 (1990); Nowlin v. Indus. Comm’n,
    
    167 Ariz. 291
    , 293, 
    806 P.2d 880
    , 882 (App. 1990).
    ¶7            Claimant argues the ALJ erred by finding that the movement
    of bending over to take off his work boots did not arise out of his
    employment under the overnight traveling employee rule. He asserts that
    the rule provides a traveling employee continuous coverage for all activities
    throughout his trip, absent a distinct departure on a personal errand.
    ¶8             This court recognized the overnight traveling employee rule
    in Peterson v. Indus. Comm’n, 
    16 Ariz. App. 41
    , 
    490 P.2d 870
    (1971). The rule
    provides that when an employee’s work requires travel away from the
    employer’s premises, the employee remains in the course of his
    employment for the duration of the trip absent purely personal 
    deviations. 16 Ariz. App. at 44
    , 490 P.2d at 873.
    ¶9              In Peterson, the traveling employee was required to stay in
    out-of-town lodging overnight. During the night, he caught his head
    between the slats of the headboard and suffocated. We recognized the
    difficulty of applying the arising out of and in the course of tests when “the
    accident is not due to a risk inherent in the nature of the employment but is
    merely incidental 
    thereto.” 16 Ariz. App. at 43
    , 490 P.2d at 872. But we
    concluded that a “period of sleep is necessarily incidental to the work of a
    traveling employee required to take overnight lodging away from his
    home.” Id. at 
    44, 490 P.2d at 873
    . See also Bergmann Precision, Inc. v. Indus.
    Comm’n, 
    199 Ariz. 164
    , 
    15 P.3d 276
    (2000) (local traveling salesman struck
    by car while crossing street after lunch break remained in the course of his
    employment). For that reason, the claimant was in the course of
    employment while sleeping at the hotel.
    ¶10           In this case, the overnight traveling employee rule placed the
    claimant in the course of employment at the time he bent over to take off
    his work boots, but it does not answer the separate question of whether
    claimant’s movement in taking off his boots arose out of his employment.
    Whether the risk of injury arose out of the employment requires an
    examination of the origin and work connection of the risk. The origin of a
    risk may be wholly work-related, wholly personal, neutral, or mixed (i.e.,
    both work-related and personal). See 1 Arthur Larson & Lex K. Larson,
    Larson’s Workers’ Compensation Law §§ 4.01 to -.04 (2013). The nature of the
    work connection, ranging from strongest to weakest, may be peculiar
    (exposure to risk only at work), increased (greater quantity of exposure to
    risk at work), actual (exposure at work but not greater than when not
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    SVIENTY v. CORRPRO
    Decision of the Court
    working), or positional (random exposure to risk connected to work only
    by time and place). See 
    id. §§3.02 to
    -.05.
    ¶11            Within this legal framework, we need to examine the facts
    surrounding claimant’s injury as found by the ALJ. In that regard, he
    adopted Liberty Mutual’s post-hearing memorandum which relied on
    Terry McLean, M.D.’s August 7, 2013 independent medical examination
    (“IME”) report.3 These facts established that claimant experienced severe
    low back and right leg pain on May 21, 2013, while assisting his father-in-
    law remodel a bathroom. He was carrying fifty gallon garbage cans of old
    tile to a dumpster. Claimant saw a chiropractor later that day, stating that
    his pain was a “10 out of 10.” He testified that after seeing the chiropractor,
    he felt better until he bent over to remove his work boots in the Arkansas
    motel room and experienced excruciating pain.
    ¶12          Dr. McLean opined that claimant herniated his L5-S1 lumbar
    disk in May 2013, while working on the remodeling project. The doctor
    stated that when claimant bent over in Arkansas, he “aggravated the
    preexisting disk herniation resulting in further extrusion and
    symptomatology.” The doctor reported that this June 6, 2013 incident at
    the hotel room was not a new injury nor was it related to the claimant’s
    work activities that day. The claimant did not present any evidence to
    refute Dr. McLean’s testimony.
    ¶13           Based on the accepted evidence of record, the origin of
    claimant’s injury was purely personal since it was related to his preexisting
    herniated disc which he sustained while performing a family remodeling
    project prior to his employment at Corrpro. Further, there is no work
    connection because claimant was not engaged in any work-related activity
    at the time of the incident in the motel room. For these reasons, claimant
    failed to meet his burden of proving that his injury arose out of his
    employment.
    ¶14          In the Award, the ALJ found that claimant met the “in the
    course of” employment test, but failed to establish that his injury “arose out
    of” his employment with Corrpro. Because both tests must be satisfied to
    3      See Hester v. Indus. Comm’n, 
    178 Ariz. 587
    , 589-90, 
    875 P.2d 820
    , 822-
    23 (App. 1993) (ALJ may incorporate a party’s post-hearing memorandum,
    by reference, in the Award).
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    SVIENTY v. CORRPRO
    Decision of the Court
    establish a compensable claim, the record supports the ALJ’s legal
    conclusion. Accordingly, we affirm the Award.4
    :ama
    4      For the first time in the reply brief, claimant argues that the Award
    is legally insufficient for this court’s review because it lacks sufficient
    findings. See Post v. Indus. Comm’n, 
    160 Ariz. 4
    , 
    770 P.2d 308
    (1989).
    Additional findings must be requested on administrative review before
    judicial review of the sufficiency of the findings. See, e.g., Spielman v. Indus.
    Comm’n., 
    163 Ariz. 493
    , 496, 
    788 P.2d 1244
    , 1247 (App. 1989). We have
    reviewed claimant’s request for review and find no such argument was
    presented to the ALJ. For that reason, we do not reach this argument on
    appeal.
    6