CRST Int'l v. Indus. Comm'n of Ariz.

• Docket Number: 1 CA-IC 21-0049
• Decision Date: 06 October 2022
• Citation: CRST Int'l v. Indus. Comm'n of Ariz., 80 Arizona Cases Digest 53, 518 P.3d 1125 (Ariz. App. 2022)
• Parties: CRST INTERNATIONAL, Petitioner Employer, Indemnity Insurance Co of North America, Petitioner Insurance Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Gurdon McChesney, Respondent Employee.
• Court: Arizona Court of Appeals

80 Arizona Cases Digest 53

518 P.3d 1125

CRST INTERNATIONAL, PetitionerEmployer,

Indemnity Insurance Co of North America, PetitionerInsurance Carrier,

v.The INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

Gurdon McChesney, Respondent Employee.

No. 1 CA-IC 21-0049

Court of Appeals of Arizona, Division 1.

Filed October 6, 2022

Lundmark Barberich La Mont & Slavin PC, Phoenix, By Kirk A. Barberich, Counsel for PetitionerEmployer and Carrier

Industrial Commission of Arizona, Phoenix, By Gaetano J. Testini, Counsel for Respondent

Snow Carpio & Weekley PLC, Phoenix, By Dennis R. Kurth, Counsel for Respondent Employee

Judge Samuel A. Thummadelivered the opinion of the Court, in which Presiding Judge Maria Elena Cruz and Judge Michael J. Brown joined.

THUMMA, Judge:

¶1This case turns on whether a traveling employee, who suffered a head injury while on a break performing a personal errand on a customer's property, sustained an injury compensable under Arizona's Workers’ Compensation Act.An Industrial Commission of Arizona administrative law judge (ALJ) found the employee was within the course of his employment and awarded benefits.For the reasons set forth below, that award is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2Gordon McChesney has worked as a truck driver for CRST International for many years.His job is to pick up large bales of cardboard at retail stores in the Phoenix area and northern Arizona.This involves day trips, driving a flat-bed truck to the stores, using a forklift to load the bales on the truck and then taking the bales to Phoenix for recycling.One weekly route required McChesney to drive from Tolleson to stores in Flagstaff and north Phoenix before returning to Tolleson.McChesney was injured in April 2020 while on this Flagstaff route.

¶3 On the day of his injury, McChesney got a late start because his truck was being repaired.Although typically on the road by 7:00 a.m., that day, McChesney left at about 10:30 a.m.He arrived in Flagstaff at about 1:30 p.m. and loaded cardboard bales on his truck at the first of three stores.He then took a quick break and headed to the store's front entrance to buy biscuits for his two dogs at home.He drove the forklift from the back of the store, along an empty sidewalk on the side of the store, toward the front entrance.Along the way, he ran over a large rock on the sidewalk that jolted the forklift and caused him to hit his head on the protective cage.The forklift swerved, tilting but not tipping over, causing McChesney to again hit his head on the cage.After stopping the forklift, McChesney got out, collapsed and passed out.A police officer nearby called an ambulance, and another passerby helped.McChesney was treated in a hospital emergency room and a family member then drove him back to Phoenix.

¶4 McChesney filed a workers’ compensation claim, which was denied.CRST and its carrier Indemnity Insurance Company of North America argued McChesney was outside the course of his employment when he was injured.They viewed the injury as not compensable because McChesney was on a personal errand and was prohibited from going into the store or using the forklift for transportation.

¶5 At an evidentiary hearing, the ALJ heard testimony from McChesney and CRST's safety manager, general manager and operations manager.McChesney testified that he often used the forklift for transportation to the front of stores to use the restroom or buy food.He added that other CRST drivers similarly used forklifts, and he had never seen a rule prohibiting such use.He also testified that he wanted to quickly buy the dog biscuits because his late start meant he would get back to Phoenix late, sometime after 8:00 p.m. McChesney admitted his primary purpose for wanting to go into the store was to buy dog biscuits, adding he also might have gotten something to drink.

¶6 CRST's safety manager testified that employees were generally allowed to take breaks and go into stores to use the restroom or get food and drink.CRST's general manager testified that employees could take breaks and go into a store and shop while "off duty."He added, however, that they could not use forklifts for transportation.CRST's witnesses agreed that unwritten company rules prohibited using forklifts for transportation.CRST's safety manager, however, admitted he had used forklifts for transportation to the front of a store to get food a few times.

¶7 In April 2020, retail stores were reacting to the COVID-19 pandemic.The store where McChesney was injured tried to limit the number of in-store face-to-face interactions, telling CRST that paperwork would be handled electronically.CRST's operations manager testified that this "no-touch" policy was communicated to CRST drivers by text message, directing that drivers should only go into stores to use the restroom or get food or drink.McChesney, however, testified he never received such a text message and CRST's operations manager admitted that he did not confirm McChesney received the text.

¶8 After considering the evidence, the ALJ found McChesney's injury was compensable.She found McChesney credible when he denied receiving the "no-touch" policy text message.She also found using a forklift to drive to the front of the store was "not out of the ordinary" for CRST employees.Finally, she found McChesney's use of the forklift to drive to the front of the store to shop while on a break was not "a clear violation of a work rule or so out of the ordinary as to constitute a deviation from his employment."

¶9 After the ALJ affirmed the award on administrative review, CRST and Indemnity timely filed this statutory special action.This court has jurisdiction under A.R.S. §§ 12-120.21(A)(2)and23-951(A)andArizona Rule of Procedure for Special Actions 10.

DISCUSSION

¶10This court reviews "questions of law de novo" but defers "to the ALJ's factual findings,"Special Fund Division v. Indus. Comm'n , 252 Ariz. 267, 269 ¶ 6, 502 P.3d 33, 35(App.2021), viewing the evidence in a light most favorable to upholding the award, Lovitch v. Indus. Comm'n , 202 Ariz. 102, 105 ¶ 16, 41 P.3d 640, 643(App.2002).The ALJ, not this court, "resolve[s] all conflicts in the evidence and draw[s] all warranted inferences."Aguayo v. Indus. Comm'n , 235 Ariz. 413, 416 ¶ 11, 333 P.3d 31, 34(App.2014).

¶11 To prevail on his claim, McChesney "needed to show that he suffered an injury ‘by [1] accident [2] arising out of and [3] in the course of his employment.’ "Turner v. Indus. Comm'n , 251 Ariz. 483, 485 ¶ 8, 493 P.3d 910, 912(App.2021)(quotingA.R.S. § § 23-1021(A) ).Whether an injury meets this standard turns on the totality of the circumstances.Finnegan v. Indus. Comm'n , 157 Ariz. 108, 755 P.2d 413(1988).McChesney's injury was an accident, and Petitioners do not dispute that the injury arose out of his employment.See Ibarra v. Indus. Comm'n , 245 Ariz. 171, 174 ¶ 14, 425 P.3d 1114, 1117(App.2018)(noting"arising out of" and "in the course of""are interrelated, but each must be evaluated and satisfied separately")(citation omitted).Petitioners, however, claim McChesney's injury was not "in the course of" his employment.

¶12" ‘[I]n the course of’ refers to the time, place, and circumstances of the injury in relation to the employment."Turner , 251 Ariz. at 485 ¶ 8, 493 P.3d at 912(citing cases)."The type of activity which most clearly satisfies the ‘[in the] course’ test is the active performance by the employee of the specific duties which he was engaged to perform.A ‘weaker’ class of activity -- that is, which does not so clearly meet the ‘[in the] course’ test or may fail to meet it altogether -- includes those activities which are only incidental to the performance of the employee's duties, such as seeking personal comfort."Royall v. Indus. Comm'n , 106 Ariz. 346, 350, 476 P.2d 156, 160(1970).¹"An injury which occurs in the course of the employment will ordinarily, but not necessarily, arise out of it, while an injury arising out of employment almost necessarily occurs in the course of it."Royall , 106 Ariz. at 349, 476 P.2d at 159(citation omitted)."The ‘ultimate test’ is whether ‘the totality of circumstances establishes sufficient indicia of employment connection.’ "Noble v. Indus. Comm'n , 188 Ariz. 48, 51, 932 P.2d 804, 806(App.1996)(citation omitted).

¶13 The analysis applicable to McChesney -- a traveling employee with an injury involving unusual facts -- builds on Bergmann Precision, Inc. v. Indus. Comm'n , another traveling employee case.199 Ariz. 164, 15 P.3d 276(App.2000).In Bergmann , after starting the work day with a brief office visit, the employee drove around the Phoenix area making sales calls.Id. at 165-66 ¶¶ 1-5, 755 P.2d 413.Although not an overnight traveler, the employee spent most of his work time traveling.Id.One day, while illegally jaywalking to his car after eating lunch alone, the employee was hit by a car and seriously injured.199 Ariz. at 165 ¶ 6 & n.1, 15 P.3d at 277.

¶14 Affirming an award finding the injury occurred in the course of employment, Bergmann found the "continuous coverage" that applied to overnight traveling employees also applied to daily traveling employees.199 Ariz. at 166 ¶ 7,167 ¶ 13, 15 P.3d at 278, 279.Bergmann noted that when "travel is essentially part of the employment, the risk [of injury during activities necessitated by travel] remains an incident to the employment even though the employe[e] may not actually be working at the time of injury."Id. at 167 ¶ 13, 15 P.3d at 279(citations omitted).In "choosing to eat at a restaurant near his intended route," the employee "neither abandoned the course of his employment nor created a wholly personal risk of injury."Id.

¶15 Rejecting an argument that illegal jaywalking was "a deviation from the course of employment,"Bergmann defined "deviation" as "activity ... ‘so remote from customary or reasonable practice that ... [it] cannot be said to...