Brooks v. Industrial Com'n of Arizona, 1

• Decision Date: 24 February 1983
• Docket Number: No. 1,CA-IC,1
• Parties: Stephen M. BROOKS, Benjamin F. Cooley, c/o Linda Cooley, Guardian, Steven M. Kovalcheck (Deceased), Lynda Kovalcheck Haneman (Widow), Karrie Ann Kovalcheck and Cynthia Marie Kovalcheck, Minor Children, William A. Richardson (Deceased), Martha Ann Richardson (Widow), William Lloyd Richardson, Minor Child, Robert J. Kearns (Deceased), Rachel Kearns (Widow), Chris Bradley, Petitioners, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Bechtel Power Corporation, Respondent Employer, Industrial Indemnity Company, Respondent Carrier. 2447.
• Court: Arizona Court of Appeals

Page 690

664 P.2d 690

136 Ariz. 146

Stephen M. BROOKS, Benjamin F. Cooley, c/o Linda Cooley, Guardian, Steven M. Kovalcheck (Deceased), Lynda Kovalcheck Haneman (Widow), Karrie Ann Kovalcheck and Cynthia Marie Kovalcheck, Minor Children, William A. Richardson (Deceased), Martha Ann Richardson (Widow), William Lloyd Richardson, Minor Child, Robert J. Kearns (Deceased), Rachel Kearns (Widow), Chris Bradley, Petitioners, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Bechtel Power Corporation, Respondent Employer Industrial Indemnity Company, Respondent Carrier.

No. 1 CA-IC 2447.

Court of Appeals of Arizona Division 1, Department C.

Feb. 24, 1983.

Rehearing Denied Apr. 8, 1983.

Review Denied May 24, 1983.

Ely, Bettini & Ulman by Sam Insana, Phoenix, for Stephen M. brooks

Ajamie, Fay & Webb by Louis C. Webb, Phoenix, for Benjamin F. Cooley.

Spencer K. Johnston, Phoenix, for William A. Richardson.

Machmer, Schlosser & Meitz, P.C. by Ronald M. Meitz, Phoenix, for Benjamin F. Cooley.

Fred Creasy, Jr., Phoenix, for Steven M. Kovalcheck.

Ben J. Martin, Scottsdale, for Robert J. Kearns.

James A. Overholt, Chief Counsel, Indus. Com'n of Ariz., Phoenix, for respondent.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A. by Donald L. Cross, Larry L. Smith, Phoenix, for respondents employer/carrier.

OPINION

EUBANK, Judge.

The issue presented in this special action review of an award of the Industrial Commission denying compensability, is whether the administrative law judge correctly denied the peitioners' claims for workmen's compensation benefits on the basis of the "going and coming" rule. In view of the totality of the facts and the law applicable to them, we are of the opinion that the award denying petitioners' claims for benefits is correct. We therefore affirm the award.

The petitioners are surviving workers, or dependents of deceased workers, who were involved in a traffic accident which occurred while the workers were traveling from their homes to their jobs at Palo Verde Nuclear Generating Station. The nuclear plant is being constructed in a relatively undeveloped area some 50 miles west of downtown Phoenix. The prime contractor, respondent employer Bechtel Power Corporation, required the services of skilled workers in the construction of the plant. Bechtel entered into negotiations with the appropriate trade unions, which insisted that provision be made regarding the extensive travel which would be required of their members. Each craft union had previously negotiated separate travel provisions for construction work with employers throughout the state. After extensive negotiation, the bargainers reached a compromise providing that "[i]n lieu of all existing travel or future travel and subsistence payment considerations, the Employer(s) agrees to pay each employee Six Dollars ($6.00) per day worked." This was paid to all workers for each day's work, regardless of actual mileage or other cost.

At approximately 5:45 a.m. on July 10, 1978, a two-vehicle collision occurred at the intersection of Cotton Lane and West McDowell Road in Maricopa County involving the petitioners or their deceased, who were all employees of Bechtel going to work at the plant. Following the accident, the surviving injured workers and the dependents of the deceased workers timely filed claims for workmen's compensation benefits. The respondent carrier, Industrial Indemnity Company, issued notices of claim status denying all of the claims on the basis that the accident neither arose out of nor occurred in the course of employment. All of the petitioners filed requests for hearings and the cases were consolidated for hearing. The administrative law judge entered a consolidated decision upon hearing and findings and award for noncompensable claims. The administrative law judge affirmed his decision on review, and this appeal followed.

As a general rule, accidents occurring when an employee is going to or coming from work do not arise out of or occur in the course of employment. Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973); Butler v. Industrial Commission, 50 Ariz. 516, 73 P.2d 703 (1937); Knoop v. Industrial Commission, 121 Ariz. 293, 589 P.2d 1325 (App.1979); 1 Larson, Larson's Workmen's Compensation Law, § 15 (1978) [hereinafter referred to as 1 Larson]. On appeal petitioners argue that the accident falls into several exceptions to the "going and coming" rule.

The first of these claimed exceptions is the travel time exception. In such cases the employer pays the employee for the time consumed in going and coming to his employment. Serrano v. Industrial Commission, 75 Ariz. 326, 256 P.2d 709 (1953); Strauss v. Industrial Commission, 73 Ariz. 285, 240 P.2d 550 (1952); 1 Larson, supra, § 16.20. We have said regarding this exception, "Certainly when the employer pays for the time involved, the inference should be conclusive that the travel is included within the course of employment." Fisher Contracting Company v. Industrial Commission, 27 Ariz.App. 397, 399-400, 555 P.2d 366, 368-69 (1976).

The second exception is related to the travel time exception and may be termed the substantial benefits exception. In these cases the employer furnishes transportation or expenses, in lieu thereof, to its employees, and it appears from the facts that the travel time benefits the employer. J.D. Dutton, Inc. v. Industrial Commission, 120 Ariz. 199, 584 P.2d 1190 (App.1978); Fisher Contracting Company v. Industrial Commission, supra; see 1 Larson, supra, § 16.30.

The third exception is known as the special hazards exception. Kerr v. Industrial Commission, 23 Ariz.App. 106, 530 P.2d 1139 (1975); 1 Larson, supra, § 15.13. Although this exception has not been adopted in Arizona, it has been raised unsuccessfully in at least one Arizona case. See Kerr v. Industrial Commission, supra. This exception imposes workmen's compensation liability upon employers for injuries which occur from travel on the only or, at least, the normal route from the employee's home to the employer's premises, where "special hazards of that route become the hazards of the employment." 1 Larson, supra, § 15.13, pp. 4-18.

Turning to the first exception, petitioners vigorously contend that the $6.00 per day "in lieu" figure represents payment for time expended in travel. The administrative law judge, however, found that the $6.00 figure represented only reimbursement for the expenses of traveling and not payment for travel time. This finding is fully supported by a summarization of the evidence in findings of fact 18 through 25 of the award.

It is well established that in workmen's compensation proceedings the Industrial Commission sits as the trier of fact. Malinski v. Industrial Commission, 103 Ariz. 213, 439 P.2d 485 (1968); DuHamell v. Industrial Commission, 20 Ariz.App. 63, 510 P.2d 62 (1973). As the trier of fact, it is for the Commission to draw inferences from the evidence, and where several inferences may be drawn, the drawing of the inference is exclusively the province of the Commission. See Harrington v. Industrial Commission, 84 Ariz. 356, 328 P.2d 311 (1958). Determining whether the $6.00 per diem was to reimburse travel expenses or to pay for travel time is a fact question for the Commission to resolve, and the conclusions drawn will not be set aside unless there is no reasonable basis for the determination. Kerr v. Industrial Commission, supra. Having reviewed the record, it is our opinion that there is substantial evidence to support the Commission's finding.

Petitioners argue, however, that Serrano v. Industrial Commission, 75 Ariz. 326, 256 P.2d 709 (1953), requires that the award be set aside because factually the instant case and Serrano are the same. We disagree. In Serrano our supreme court set aside the award of the commission which denied compensation to an employee who was injured while driving home to Kingman from work at Davis Dam. The court noted that the employer had contracted "[t]o pay to each employee, as an allowance for travel and subsistence expense, and in lieu of any other provision for travel or subsistence, ... an amount equal to one hour's pay at such employees' straight time rate for each day worked by such employee, ..." 75 Ariz. at 328, 256 P.2d at 710; that the reason for this extra pay was that "[t]he job was not set up with housing, board or lodging"; and that Kobe v. Industrial Accident Commission, 35 Cal.2d 33, 215 P.2d 736 (1950) stated the "well established exception" to the going and coming rule that the employer "may agree, either expressly or impliedly, that the relationship shall continue during the period of 'going and coming', in which case the employee is entitled to protection of the act during that period." 35 Cal.2d at 35, 215 P.2d at 35, 215 P.2d at 737. Kobe was also cited for the basis of establishing an inferred agreement as follows:

Such an agreement may be inferred from the fact that the employer furnishes transportation to and from work as an incident of the employment. (Citations omitted). It seems equally clear that such an agreement may also be inferred from the fact that the employer compensates the employee for the time consumed in traveling to and from work.

Id. at 35, 215 P.2d at 737.

Based on the facts established by the award, the supreme court in Serrano found, as a matter of law, that an inferred agreement existed whereby the employer agreed to compensate the injured employee in "going" to his home in Kingman after work. The court said:

It will be observed that the order of the Construction Industry Stabilization Commission did not fix one hour as a definite limit of time to go to and from work so that the injury must have occurred within any nine-hour period. What the board actually did was to fix an amount of travel pay 'equal to one hour's pay' at such employee's straight time rate for each day worked by such employee. That amount...