Fisher Contracting Co. v. Industrial Commission

• Decision Date: 10 August 1976
• Docket Number: No. 1,CA-IC,1
• Citation: 555 P.2d 366,27 Ariz.App. 397
• Parties: FISHER CONTRACTING COMPANY and Industrial Indemnity Company, Petitioners, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Mary H. Mieras, widow, Respondent. 1356.
• Court: Arizona Court of Appeals

Page 366

555 P.2d 366

27 Ariz.App. 397

FISHER CONTRACTING COMPANY and Industrial Indemnity Company, Petitioners, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Mary H. Mieras, widow, Respondent.

No. 1 CA-IC 1356.

Court of Appeals of Arizona, Division 1, Department C.

Aug. 10, 1976.

Rehearing Denied Sept. 9, 1976.

Petition for Review Denied Oct. 13, 1976.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.C. by Lawrence H. Lieberman, Phoenix, for petitioners

John H. Budd, Jr., Chief Counsel, Phoenix, for respondent The Industrial Commission of Arizona.

Stevenson, Warden & Smith, by Jerry L. Smith, Flagstaff, for respondent Mieras.

OPINION

HAIRE, Chief Judge, Division 1.

On this review of the respondent Commission's decision awarding death benefits to the respondent widow, the basic issue is whether the injury resulting in the workman's death occurred in the course of his employment. In order to resolve this issue, we must first examine the facts of this case to determine whether, in general, there is a sufficient showing that the deceased's travel to and from the road construction site where he worked was within the course of his employment. If we find sufficient evidence to support the hearing officer's decision on this initial question, we must then determine whether the evidence supports the hearing officer's finding that, assuming an intervening deviation or abandonment of employment, the deceased workman had resumed his course of employment at the time of the fatal injury.

All of the facts are recited in the hearing officer's meticulous findings. Those findings which we deemed pertinent to our discussion of the first issue presented are as follows:

'A. The deceased was employed as a laborer foreman by the employer on a construction project near Stoneman Park on Arizona Highway I--17. He had previously been employed by this employer on other projects in Arizona and New Mexico. The family of the deceased accompanied him on these assignments.

'B. Up to the time of the deceased's death it was company policy to provide employees with subsistence pay for lodging in lieu of quarters on the job site. The deceased was receiving this subsistence pay prior to and at the time of his death even though he was living in his own home which happened to be near the Stoneman Lake Project. * * *

'C. The deceased was provided with a company truck equipped with a two-way radio. He not only used this truck during working hours but was permitted, and in fact was required, to use the vehicle to transport himself from home to the job and back. He was also given a gasoline credit card to fuel the vehicle at company expense when necessary, although gasoline would normally be available at the job site.

'D. Although not strictly enforced, it was the intent of the employer that the company vehicle be used only on the job and for coming and going between the job site and the employee's residence. The company expected that an employee provided with a company vehicle would use his own personal means of transportation in his own personal business.

'E. Although the company provided transportation for the employee between his residence and the job site it did not pay wages for the time consumed in coming to and going from the job site to home.

'F. The deceased was a non-union, salaried employee of the company. His working hours on the Stoneman Lake project were from 6:00 a.m. to 3:30 p.m. He was not required at any time, prior to his death, to remain overtime or to work on weekends on this project although he was called for overtime work during emergencies on prior projects of the employer.

'G. Although it is alleged that he was on 24 hour call, the evidence to this effect is not persuasive. The deceased had no greater obligation to respond to an after-hours emergency than any other salaried employee, in any other employ, in any other business. The presence of a two-way radio in his truck does not alter this since the use of the radio to call an employee after duty hours is impractical in that the radio is usually turned off when the vehicle is parked at the employee's residence and because of transmission problems in the mountainous area. In any event the deceased had never been called out for overtime work other than by a verbal request of his supervisor on prior projects and never on the Stoneman Lake project.'

From these facts the hearing officer concluded that while traveling to and from work the deceased was within the course of his employment.

Arizona follows the 'going and coming' rule, which in general precludes recovery of benefits for injuries occurring while an employee is going to or coming from his place of work. Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973); Butler v. Industrial Commission, 50 Ariz. 516, 73 P.2d 703 (1937). However, if a worker is compensated for the time spent traveling to and from work, he may be entitled to workmen's compensation benefits. This is upon the theory that by agreeing to pay the employee from the time he leaves home until the time he returns, the employer has agreed that the employment shall be continuous. See Serrano v. Industrial Commission, 75 Ariz. 326, 256 P.2d 709 (1953); Harris v. Industrial Commission, 72 Ariz. 197, 232 P.2d 846 (1951).

Here, pay for travel time was not involved. However, the employer did furnish a pick-up truck and paid for the gas used by the employee while traveling to and from his place of employment, and it is evident from the hearing officer's decision that he considered these facts in and of themselves sufficient to support a finding that the travel time was within the course of his employment. While we agree with the hearing officer's ultimate conclusions, we do not believe that these facts can be considered in isolation. Rather, they must be considered in the total employment setting in order to determine whether the employment can be considered to include the travel itself as a substantial part of the service performed. As stated in State Compensation Fund v. Kempainen, 12 Ariz.App. 483, 472 P.2d 94 (1970):

'This exception applies where transportation is furnished the employee at the expense of the employer And it is made to appear that the time consumed in going to and coming from work is for the employer's benefit.' (Emphasis added). 12 Ariz.App. at 484, 472 P.2d at 95.

See also, Strauss v. Industrial Commission, 73 Ariz. 285, 240 P.2d 550 (1952). Certainly when the employer pays for the time involved, the inference should be conclusive that the travel is included within the course of the employment. Serrano v. Industrial Commission, supra; Harris v. Industrial Commission, supra; 1 Larson's Workmen's Compensation Law, § 16.20, p. 4--107. However, when the employer merely pays the expense of the employee's transportation, or provides an auto for business use and permits the employee to use it for going and coming transportation, the total employment picture must be examined, and the furnishing of the automobile by the employer cannot be considered alone. ¹ See Hancock v. Industrial Commission, 82 Ariz. 107, 309 P.2d 242 (1957); DuHamell v. Industrial Commission, 20 Ariz.App. 63, 510 P.2d 62 (1973); Kriese v. Industrial Commission, 27 Ariz.App. 318, 554 P.2d 914 (filed July 29, 1976).

In our opinion the total employment picture here involved supports the hearing officer's finding that the travel was within the course of the deceased's employment. The nature of the respondent employer's construction business necessarily required considerable travel by its construction employees moving from location to location, as various construction jobs were completed. This...