Shaydak v. ICA/Turquoise/SCF
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THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
MERRY M. SHAYDAK,
)
)
Petitioner, )
)
v.
)
)
THE INDUSTRIAL COMMISSION OF
)
ARIZONA,
)
)
Respondent, )
)
TURQUOISE VALLEY GOLF & RV PARK, )
)
)
Respondent Employer, )
)
SCF ARIZONA,
)
)
Respondent Carrier. )
__________________________________)
DIVISION ONE
FILED: 09/22/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
No. 1 CA-IC 11-0002
DEPARTMENT B
MEMORANDUM DECISION
(Not for Publication Rule 28, Arizona Rules
of Civil Appellate
Procedure)
Special Action – Industrial Commission
ICA Claim No. 20100-770363
Carrier Claim No. 1002475
Administrative Law Judge Gary M. Israel
AWARD AFFIRMED
Taylor & Associates, P.L.L.C.
By Roger A. Schwartz
Attorneys for Petitioner Employee
Phoenix
The Industrial Commission of Arizona
By Andrew Wade, Chief Counsel
Attorney for Respondent
Phoenix
State Compensation Fund of Arizona
By James B. Stabler, Chief Counsel
Jean Kamm Gage
Attorneys for Respondents Employer and Carrier
Phoenix
D O W N I E, Judge
¶1
Merry M. Shaydak appeals the denial of her worker’s
compensation
claim.
Because
we
agree
with
the
Industrial
Commission (“Commission”) that Shaydak failed to prove that her
injuries occurred in the course of employment, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2
In
March
2010,
Shaydak
brought
two
dogs
to
work,
believing they would be warmer in her car that snowy day than at
home.
Shaydak left the dogs in her car, which she parked in the
employee
parking
waitressing
lot,
shift.
intending
The
shift
to
check
supervisor
on
them
allowed
during
her
Shaydak
to
check on the dogs in the morning and again about 1:30 p.m.
During the afternoon check, Shaydak decided to jump a five-foot
chain link fence that surrounded the employee parking lot to
save the time it would take to walk to an opening for foot
traffic.
half.”
Shaydak
“landed
wrong”
and
“snapped
She drove back to the restaurant.
[her]
knee
in
Shaydak was upset,
and a co-worker suggested she take the dogs home and return to
2
finish her shift.
About 20 minutes later, Shaydak called the
restaurant, saying she was not returning because she was going
to the hospital.
Medical testing revealed injuries to her right
knee that required surgery.
¶3
Shaydak filed a worker’s compensation claim that was
denied
for
benefits;
she
timely
requested
review.
After
a
hearing and post-hearing briefing, an Administrative Law Judge
(“ALJ”) denied Shaydak’s claim, concluding she failed to prove
that her injuries arose out of and in the course of employment.
See Goodyear Aircraft Corp., Ariz. Div. v. Gilbert, 65 Ariz.
379,
382-83,
181
P.2d
624,
626
(1947)
(“Both
the
elements
‘arising out of’ and ‘in the course of employment’ must coexist
at one and the same time in order that an award be sustained.”).
The ALJ’s determination was affirmed upon review.
¶4
Shaydak timely filed a special action petition with
this Court.
We have jurisdiction pursuant to Arizona Revised
Statues (“A.R.S.”) sections 12-120.21(A)(2) and 23-951.
DISCUSSION
¶5
Shaydak contends the denial of her claim was contrary
to law because: (1) checking on the dogs was a personal comfort
activity
jumping
approved
over
the
by
her
fence
supervisor,
did
not
policy.
3
and
(2)
her
actions
violate
any
law
or
in
company
¶6
We consider the facts in the light most favorable to
sustaining the Commission’s award.
Anton v. Indus. Comm’n, 141
Ariz. 566, 569, 688 P.2d 192, 195 (App. 1984).
We defer to an
ALJ’s reasonably supported factual findings, but independently
determine
whether
those
facts
support
the
reached.
Bergmann Precision, Inc. v. Indus. Comm’n, 199 Ariz.
164, 166, ¶ 9, 15 P.3d 276, 278 (App. 2000).
legal
conclusion
We will affirm if
there is substantial evidence to support the decision.
Malinski
v. Indus. Comm’n, 103 Ariz. 213, 216, 439 P.2d 485, 488 (1968).
I.
Personal Comfort Activity
¶7
“[A]n
accident
‘arises
out
of’
employment
if
its
origin or cause is work-related; it occurs ‘in the course of
employment’ if the time, place, and circumstances of injury are
employment related.”
at 278.
Bergmann, 199 Ariz. at 166, ¶ 9, 15 P.3d
The personal comfort doctrine provides that employees
remain in the course of employment during the work day while
“engag[ing] in reasonable acts” that minister to their personal
comfort, such as a break to rest, eat, make a telephone call, or
use the bathroom.
109-10,
259
P.2d
Nicholson v. Indus. Comm’n, 76 Ariz. 105,
547,
550
(1953);
see
also
Sacks
v.
Comm’n, 13 Ariz. App. 83, 84, 474 P.2d 442, 443 (1970).
Indus.
But, an
employee “can act so unreasonably” that the employee’s actions
create a “wholly personal risk,” and any injuries that result
are not compensable.
Bergmann, 199 Ariz. at 167-68, ¶ 18, 15
4
P.3d at 279-80.
“To constitute a deviation [from the course of
employment], the activity must be so remote from customary or
reasonable practice that . . . [it] cannot be said to be [an]
incident [] of the employment.”
Id. at 168, ¶ 19, 15 P.3d at
280 (alteration in original) (internal quotation marks omitted);
see also Pottinger v. Indus. Comm’n, 22 Ariz. App. 389, 393, 527
P.2d 1232, 1236 (1974) (“[I]t is readily apparent that . . . an
accident arising out of personal comfort and convenience must
still
evolve
from
a
risk
peculiar
to
or
increased
by
the
agreed
the
employment.”).
¶8
In
post-hearing
memoranda,
both
parties
pertinent question was whether the injurious act occurred in the
course of Shaydak’s employment.
checking
on
the
dogs
was
a
Even assuming arguendo that
personal
comfort
activity,
the
evidence supports the ALJ’s conclusion that jumping the fence
was sufficiently unreasonable to remove Shaydak’s actions from
the course of employment.
¶9
Shaydak testified it took about ten minutes to get to
her car in the employee lot and that jumping the fence would cut
the time in half.
She further testified she had never before
jumped the fence, and nothing prevented her from accessing the
lot in her usual manner -- except that she “needed to get back”
to work.
The record and testimony of other witnesses, however,
contradicted Shaydak’s version of the day’s events.
5
The record
demonstrates
that
two
employees
were
available
to
cover
Shaydak’s two tables -- the only customers in the restaurant
that afternoon.
Three witnesses testified it took only a couple
of minutes to walk from the restaurant to the employee parking
lot using the foot-traffic entrance.
The ALJ specifically found
Shaydak’s
than
testimony
less
credible
that
of
the
other
witnesses.
¶10
Shaydak’s situation is analogous to that presented in
Rodriguez v. Indus. Comm’n, where this Court affirmed the denial
of compensation for injuries incurred when an employee returned
to his work station via a “dark, incomplete new construction
area” instead of using the employer’s well-lit, safe walkway.
20
Ariz.
App.
148,
149,
explained
that
injuries
510
could
P.2d
be
1053,
1054
compensable
(1973).
if
they
We
were a
“rational consequence of, or . . . had . . . origin in, a risk
inherent in, or connected with or reasonably incident to, the
employment.”
Id. at 150, 510 P.2d at 1055 (citation omitted)
(internal quotation marks omitted).
But injuries resulting from
“acts for [the employee’s] own purposes or benefits, other than
acts
necessary
for
[the
employee’s]
personal
convenience while at work” were not compensable.
comfort
and
Id. at 150-51,
510 P.2d at 1055-56; see also Goodyear, 65 Ariz. at 383, 181
P.2d at 626 (“[T]he act being performed by the Workman at the
time of his injury must be part of the duty he was employed to
6
perform or must be reasonably incidental thereto.”) (citation
omitted) (internal quotation marks omitted).
¶11
Applying
those
appropriately denied.
principles
here,
compensation
was
Shaydak’s decision to jump the fence was
not a “rational consequence of, or . . . a risk inherent in, or
connected
with
or
reasonably
incident
to”
her
employment.
Rodriguez, 20 Ariz. App. at 150, 510 P.2d at 1055.
admitted
bringing
inclement weather.
the
dogs
to
work
to
protect
Shaydak
them
from
Although she testified she felt a need to
hurry back to work, she also admitted it was a “very slow” day
in the restaurant, and her customers were adequately covered by
other
employees.
Even
if
Shaydak
did
need
to
hurry
back,
jumping the fence would not have saved significant time because
it took only a couple of minutes to walk from the restaurant to
the parking lot gate.
To the extent conflicting testimony was
presented about the length of time required to walk from the
restaurant to the employee parking lot, “[t]he administrative
law judge is the sole judge of witness credibility.”
Holding v.
Indus.
574
1984).
Comm’n,
139
Ariz.
548,
551,
679
P.2d
571,
(App.
On this record, the evidence and the law support the
determination that Shaydak’s injury did not occur in the course
of employment.
7
II.
Violation of Law or Policy
¶12
Shaydak next contends her injury should be compensable
because she did not violate any law or company policy by jumping
the fence.
Although she discusses cases wherein employees were
injured as a result of violations of law and policy, Shaydak
does not explain how the holdings in those cases are relevant
here.
Additionally, the ALJ did not rely on this reasoning in
denying benefits.
We therefore decline to further address this
issue.
CONCLUSION
¶13
For the foregoing reasons, we affirm the Commission’s
denial of benefits.
/s/
MARGARET H. DOWNIE,
Presiding Judge
CONCURRING:
/s/
PETER B. SWANN, Judge
/s/
DONN KESSLER, Judge
8
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