Burnett for Burnett v. Industrial Com'n of Arizona, 1

• Decision Date: 26 July 1988
• Docket Number: CA-IC,No. 1,1
• Citation: 764 P.2d 33,158 Ariz. 548
• Parties: Marlene Kay BURNETT, for Bruno BURNETT (deceased), Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Circle K Corporation, Respondent Employer, Circle K Corporation, c/o GAB Business Services, Respondent Carrier. 3803.
• Court: Arizona Court of Appeals

Page 33

764 P.2d 33

158 Ariz. 548

Marlene Kay BURNETT, for Bruno BURNETT (deceased), Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Circle K Corporation, Respondent Employer, Circle K Corporation, c/o GAB Business Services, Respondent Carrier.

No. 1 CA-IC 3803.

Court of Appeals of Arizona,

Division 1, Department B.

July 26, 1988.

Review Denied Nov. 29, 1988.

Mohr, Hackett, Pederson, Blakely, Randolph & Haga, P.C. by Michele M. Feeney, John J. Nicgorski, Phoenix, for petitioner.

Dennis P. Kavanaugh, Chief Counsel, Industrial Com'n of Arizona, Phoenix, for respondent.

Lewis and Roca by Merton E. Marks, R. Todd Lundmark, Phoenix, for respondent employer and carrier.

OPINION

BROOKS, Presiding Judge.

This is a special action review of an Industrial Commission award denying a widow's claim for benefits. The deceased employee was killed during an altercation with a customer. The central issue is whether the employee had abandoned his employment by violating store policy concerning disorderly customers. We set aside the award because regardless of fault, Burnett remained within the course of his employment.

Bruno Burnett worked for the Circle K Corporation as a clerk in a convenience store in Winslow, Arizona. After his death, his widow filed a claim for compensation benefits. Circle K, which is self-insured, denied this claim. A hearing on compensability was then conducted.

According to a co-employee at approximately 12:45 a.m. on a February morning in 1986, Burnett was stocking candy with his back to the storefront when a group of men entered the store. One of them, David Thomas, who knew Burnett, threw a snowball and hit Burnett in the head. Thomas then turned from Burnett and proceeded toward the rear of the store.

Upon being hit, Burnett spun around, grabbed two candy bars, and threw them at Thomas, hitting him in the back of his heavy parka. Thomas turned, saying, in effect, that Burnett was taking the practical joke too seriously. Burnett answered by swearing at Thomas and loudly ordering him to leave the store or the police would be called. Thomas ignored the order and continued toward the rear of the store, but Burnett pursued him. He repeated the order and warning several times. The two men then stood face to face exchanging profanities and arguing for approximately five minutes.

Without warning, Thomas suddenly punched Burnett in the jaw. They then wrestled toward the rear of the store. Thomas, who was by far the larger man, held Burnett in a headlock and ended the fight by slamming Burnett's head into a cooler. As Thomas walked out of the store, Burnett brandished a foot-long metal pipe at him.

Meanwhile, the co-employee had called the police, who arrived shortly after Thomas left. An officer interviewed Burnett, whose face was bloody but who otherwise did not appear to be seriously injured. Burnett later died as a result of strangulation caused by the headlock applied by Thomas.

Two of Burnett's supervisors appeared at the hearing to determine whether the petitioner was entitled to benefits. The store manager who trained Burnett confirmed that Circle K's written policy specified that a clerk must "actually challenge ... persons creating any disorder. (Each Circle K store person must show he knows how to effectively challenge!)" The witness testified that he instructed clerks to order disruptive customers to leave and to inform them that the police would be called if they refused. He believed he gave Burnett the same training. Although he conceded that the appropriate response would vary with circumstances, he denied that a clerk ever had authority to throw merchandise at, to swear at, or to argue with customers.

The other supervisor was the store manager when the assault occurred. Although he could not recall giving Burnett specific instructions about store policy, he confirmed the basic outline of the other supervisor's testimony: a clerk had a duty to maintain order by telling a disorderly customer to leave or the police would be called, but did not have authority to act as the deceased employee had acted. He also testified that Burnett had a good performance record and was assigned to the late shift in part to prevent shoplifting in the store.

After receiving legal memoranda, the administrative law judge issued the award. The dispositive findings state:

7. Both ... [supervisors] testified about their understanding of defendant employer's policies regarding disorderly customers. Both agreed that the proper procedure was to tell such customers to leave or that the police would be called. If they did not leave, then the police should be called. Further, store policy would not condone throwing merchandise at customers, swearing at them, or fighting with them. This would not only violate store policy, but would go against common sense.

8. It appears reasonable to infer, that had store policy been followed and the police called when Mr. Thomas would not leave the store, none of this would have happened.

9. It appears equally apparent that but for Mr. Burnett's violation of store policy--throwing candy bars at Mr. Thomas, swearing at him, and fighting with him,--Mr. Burnett would not have been injured. See Scheller v. Industrial Commission, 134 Ariz. 418, 656 P.2d 1279 (App.1982).

On this basis, the administrative law judge concluded that the death had not arisen out of and in the course of Burnett's employment. After affirmance on administrative review, this special action followed.

The widow first argues that Burnett's death was compensable by definition. Under A.R.S. § 23-901(12)(b), an injury arises out of and in the course of employment if "caused by the wilful act of a third person directed against an employee because of his employment...." (Emphasis added.) Given this definition, the widow suggests that it is unnecessary to separately satisfy the traditional elements of compensability. We disagree.

In this case, Burnett was assaulted because of his alleged provocation of Thomas. The assault occurred "because of [Burnett's] employment" only if this conduct remained in the course of the employment. Whether or not Burnett abandoned his employment is a central question which cannot be resolved without determining the course of his employment.

Circle K argues that Burnett abandoned his employment because its policy circumscribed the authorized ends of employment. In contrast, the widow contends that Burnett remained within the course of his employment because Circle K's policy merely regulated the means of accomplishing the authorized end of maintaining order in the store. In addition, she asserts that the administrative law judge did not address this critical means/ends distinction.

This latter point must be conceded. Although the administrative law judge cited Scheller, which is the primary authority for Circle K's argument, he merely concluded that Burnett would not have been injured but for his misconduct. Causation alone, however, cannot justify noncompensability. Indeed, misconduct is relevant only if there is a causal connection between it and the injury. See, e.g., Schroeder v. Industrial Comm'n, 132 Ariz. 455, 646 P.2d 886 (App.1982) (compensable claim despite misconduct resulting in injury); City Products Corp. v. Industrial Comm'n, 23 Ariz.App. 362, 533 P.2d 573 (1975) (compensable claim despite misconduct resulting in injury).

Inadequate findings are fatal, however, only if "the reviewing court is unable to determine whether the basis ... [for the administrative law judge's] conclusion was legally sound." Cavco Industries v. Industrial Comm'n, 129 Ariz. 429, 435, 631 P.2d 1087, 1093 (1981). The only factual dispute in the present case concerned the scope of Circle K's written policy. The administrative law judge resolved this dispute by finding that the authority to "challenge" disorderly customers did not include arguing with or physically confronting them. Given this finding, the applicability of the means/ends misconduct rule is a question of law that this court may independently assess. See Schroeder, 132 Ariz. at 458, 646 P.2d 886.

Turning to this legal question, we must decide whether the policy concerning disorderly customers circumscribed the ultimate work that Burnett was employed to perform or merely regulated the manner in which he was to perform that work. If the former, Burnett's misconduct removed him from the course of his employment; if the latter, he remained in the course of his...