No. 1 CA-IC 20-0031
COUNSEL Lundmark, Barberich, La Mont & Slavin PC, Phoenix By Lisa M. LaMont Counsel for Petitioner Employer/Insurance Carrier Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent Moore Law Firm PLLC, Show Low By David G. Moore Counsel for Respondent Employee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Special Action - Industrial Commission
ICA No. 20191-290418
Carrier Claim No. 30192449897-0001
The Honorable Amy L. Foster, Administrative Law Judge
Lundmark, Barberich, La Mont & Slavin PC, Phoenix
By Lisa M. LaMont
Counsel for Petitioner Employer/Insurance Carrier
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Moore Law Firm PLLC, Show Low
By David G. Moore
Counsel for Respondent Employee
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.
¶1 This is a statutory special action review of an Industrial Commission of Arizona award and decision upon review for a compensable claim. New Hampshire Insurance Company and Lowe's (collectively, "Petitioners") argue that the Administrative Law Judge ("ALJ") erroneously found Kristopher McClelland's injury arose out of his employment at Lowe's when he injured his left elbow pulling himself up from the toilet while at work. For the reasons stated below, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 McClelland had worked at Lowe's for five years, holding various positions. When getting up from the toilet while working at Lowe's, McClelland heard his left elbow pop and immediately felt pain. McClelland told his bosses and went to the E.R. Several days later, McClelland filed a worker's compensation claim, stating that the mechanism of injury was "went to grab rail at Lowe's [. . .] and felt pop and severe pain." After McClelland added the date of injury to the form, he served the claim on June 26, 2019. Petitioners denied the claim on July 19, 2019, and McClelland requested review by the Commission. The ALJ conducted three evidentiary hearings.
¶3 In the first hearing, McClelland testified that he worked as a delivery driver and that on the morning of the incident his left elbow had been sore from the previous day's work, "like it [wa]s every day," and that the soreness had "continued to the next morning." He told his boss that his left arm was sore and used the restroom while another employee loaded his truck. While seated at the toilet, McClelland rested his left arm on a safety
bar, which was about three feet off the ground and chest height. Because of the stall's structure, McClelland was required to reach up with his right arm to another safety bar and pull himself up. As he began to pull himself up, he heard a pop in his left elbow, felt immediate pain, and noticed swelling. McClelland stated that he put "very little" weight on his left arm and heard the "pop" come from the same place that he had been experiencing soreness. McClelland's bosses at the time verified his testimony.
¶4 The ALJ heard expert medical testimony on the extent of McClelland's injury at the final two hearings. Neither expert testified that McClelland had a pre-existing condition in his elbow. One of the medical experts testified that lifting heavy objects could contribute to the type of injury McClelland suffered. Petitioners and McClelland submitted briefing on whether the injury "arose in" and occurred "in the course of" McClelland's employment. Petitioners conceded that the injury occurred "in the course of" employment because McClelland was engaged in a personal comfort activity on the employer's premises at the time the injury occurred. Petitioners argued, however, that the injury did not arise out of the employment because McClelland failed to show how the injury was causally related to a risk either peculiar to the employment or increased by it. McClelland argued that he met his burden by the preponderance of the evidence that something about his employment or a condition in the restroom contributed to his injury.
¶5 The ALJ found that McClelland was entitled whatever benefits were available under A.R.S. § 23-1061(M) because Petitioners denied the claim one day late. The ALJ further found that McClelland "was under the personal comfort doctrine when injured and thus was injured in the course of his employment." It also found that McClelland met his burden by the preponderance of the evidence that a compensable injury occurred and awarded him medical, surgical, and hospital benefits and temporary total or temporary partial disability compensation benefits.
¶6 Petitioners requested review and the ALJ affirmed its decision. Petitioners requested statutory special action review and we have jurisdiction pursuant to A.R.S. § 12-120.21 and A.R.S. § 23-951.
¶7 Petitioners argue that the ALJ erred in finding that McClelland's injury arose out of a risk related to his employment and therefore compensable under A.R.S. § 23-1021. In reviewing the Commission's award, we defer to the ALJ's findings of fact, but we review
de novo questions of law and legal conclusions, such as whether the injury arose out of employment. Ibarra v. Indus. Comm'n of Ariz., 245 Ariz. 171, 174 ¶ 12 (App. 2018). The agency's decision will be affirmed if supported by substantial evidence. Sanderson Lincoln Mercury, Inc. v. Ford Motor Co., 205 Ariz. 202, 205 ¶ 8 (App. 2003).
¶8 A compensable injury must, by the preponderance of the evidence, both "arise out of" employment and be sustained "in the course of" employment. Royall v. Indus. Comm'n, 106 Ariz. 346, 349 (1970); see also Lawler v. Indus. Comm'n, 24 Ariz. App. 282, 284 (App. 1975). "Arise out of" refers to the origin or cause of the injury, while "in the course of" refers to the time, place, and circumstances of the accident in relation to the employment. Id. "These tests are interrelated, but each must be evaluated and satisfied separately," Circle K Store No. 1131 v. Indus. Comm'n, 165 Ariz. 91, 94 (1990). The tests jointly form the "quantum theory of work connection." Ibarra, 245 Ariz. at 174 ¶ 14.
¶9 Arizona applies the personal comfort doctrine, which recognizes that a claimant "engage[d] in reasonable acts which minister to [his] personal comforts[,]" such as "seeking toilet facilities[,]" is within the course of his employment. Sacks v. Indus. Comm'n, 13 Ariz. App. 83, 84 (App. 1970). A claimant entitled to the benefit of the personal comfort rule still must show by a preponderance of the evidence some "causal connection between the employment and the injury" to satisfy the "arose out of" requirement. See id. The causal connection is established when claimant's injury resulted from some risk of the employment or is incidental to the discharge of employment duties. Lane v. Indus. Comm'n of Ariz., 218 Ariz. 44, 47 ¶ 10 (App. 2008); see also Royall, 106 Ariz. at 351 (stating the "arise out of" employment requirement is satisfied when the "source of injury was sufficiently associated with the employment as to constitute a risk to which claimant was subjected in the course of her employment, and to which she would not have been subjected had she not been so employed.").
¶10 To assess whether the cause of an injury is employment-related, "the best approach is to classify risks by origin and by nature." Noble v. Indus. Comm'n of Ariz., 188 Ariz. 48, 51 (App. 1996). In evaluating the risk, courts must consider whether the injury arose from a risk whose origin is distinctly work related, wholly personal, mixed, i.e., partially work related and partially personal, or neutral, meaning no obvious work or personal risk. Ibarra, 245 Ariz. at 175 ¶ 15. Depending on the origin of the risk, an injury may be considered to arise out of employment when the nature of the risk is either peculiar to the employment, increased by the employment, actual risks of the employment, or risks that would not occur
but for the fact that the employment placed the employee in a position where he or she was injured, see Ibarra, 245 Ariz. at 174-75 ¶ 15; see also 1A. Larson, Workmen's Compensation Law §§ 6.20-.50 (1990). This court in Nowlin v. Industrial Commission of Arizona summarized the connection between origin and nature of risk as when "the origin of the risk moves away from a work relationship towards a personal origin, the court should apply a theory of 'arising out of employment' that retains some work connection" and that "if the origin of the risk is solely from the work, it makes little sense to add to the equation the requirement that the work 'increase' the risk over that to which the general public is subjected." 167 Ariz. 291, 295 (App. 1990); see also 1B A. Larson, Workmen's Compensation Law § 38.83(b) (1985) ("As to situations not involving any personal-risk [. . .] we have seen that the better rule goes beyond the old rule demanding increased or peculiar risk contributed by the employment, and accepts actual risk—even positional risk.").
¶11 Here, the ALJ heard testimony that McClelland's arm was sore after work the night before and that his elbow was still sore on the morning of the incident. A medical expert testified that lifting a heavy object could contribute to the type of injury McClelland suffered. McClelland also testified that because the Lowe's bathroom stall was narrow, he needed to pull himself off the toilet. Although the ALJ could have been clearer in its findings, substantial evidence supports the ALJ's conclusion that McClelland's work and bathroom stall's structure contributed to McClelland's risk of his injury. See Post v. Indus. Comm'n of Ariz., 160 Ariz. 4, 7 (1989) (stating that while an ALJ must find on all the case's material issues, the lack of findings on a particular issue does not invalidate a determination unless we cannot determine the factual basis of her conclusion or whether it was legally sound.). Moreover, the risk of injury going to the bathroom while working a full-time shift is a work-related risk and an actual risk of employment, which by itself meets the requisite quantum theory of work connection when done in the course of employment. See Goodyear Aircraft Corp. v. Indus. Comm'n, 62 Ariz. 398, 413, 415 (1945); see also Royall, 106 Ariz. at 348 (reiterating that Workmen's Compensation laws "should be given a liberal construction, with a view of effectuating their evident purpose of placing the burden of injury [. . .] upon industry."); 1B A. Larson, supra § 38.83(b) (1985) (suggesting that when a risk is distinctly work related, the actual risk test or positional risk test should apply.); Leflet v. Redwood Fire & Cas. Ins. Co., 226 Ariz. 297, 300 ¶ 12 (App. 2011) (an appellate court may affirm "on any basis supported by the record.").
¶12 Petitioners nonetheless argue that McClelland failed to show how the structure of the stall, or some other feature of his employment, increased his risk of injury. For their argument, Petitioners rely on Sacks and Pottinger v. Industrial Commission, 22 Ariz. App. 389 (App. 1975). In Sacks, the court applied the "increased risk" test to an employee with a "self-contained degenerative condition" and who was engaged in an activity that fell under the personal comfort doctrine. See Sacks, 13 Ariz. App. at 84. This court in Pottinger, however, recognized that Sack's "self-contained degenerative condition" was factually distinct from an "externally caused" injury, see 22 Ariz. App. at 393, and reiterated that the standard for "arise out of employment" is met if "the source of injury was sufficiently associated with the employment as to constitute a risk to which claimant was subjected in the course of her employment, and to which she would not have been subjected had she not been so employed. Id. (quoting Pauley v. Indus. Comm'n, 109 Ariz. 298, 302 (1973).
¶13 As stated above, substantial evidence supported the ALJ's determination that McClelland's employment contributed to the risk of McClelland's injury. Sacks is also distinguishable and limited to the factual scenario of a "self-contained degenerative condition." See Pottinger, 22 Ariz. App. at 393. Because Sacks had a specific, pre-existing degenerative condition that created a definite, personal risk to the injury she suffered and because she was engaged in an activity that fell under the personal comfort doctrine, she was required to show how the "structure or condition of any of the surroundings contributed" to or increased the risk of her injury to meet the requisite quantum theory of work connection, which she did not do. Sacks, 13 Ariz. App. at 84; see also 1A A. Larson, supra § 29.10 (1990). Here, McClelland did not have a "self-contained degenerative condition" that created a definite, personal risk of the injury suffered and was therefore not required to show how the structure or employment increased his risk of injury. Compare Goodyear Aircraft Corp., 62 Ariz. at 415-16 and Royall, 106 Ariz. at 351 with Sacks, 13 Ariz. App. at 84.
¶14 For the reasons stated, we affirm.