Flamingo Motor Inn v. Industrial Com'n of Arizona, 1
| Decision Date | 17 August 1982 |
| Docket Number | CA-IC,No. 1,1 |
| Citation | 650 P.2d 502,133 Ariz. 200 |
| Parties | FLAMINGO MOTOR INN, Petitioner Employer, State Compensation Fund, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Patrick A. Tighe, Respondent Employee. 2580. |
| Court | Arizona Court of Appeals |
The sole issue is whether evidence supports the administrative law judge's finding that respondent Tighe was an "employee" within the meaning of our Workmen's Compensation statutes, of petitioner Flamingo Motor Inn (Flamingo) at the time he was injured. We find that it does, and affirm the award.
During 1979 and 1980, respondent Tighe had been hired to work on a part-time, as-needed basis at the motel and restaurant operated by petitioner Flamingo. 1 He had performed maintenance work, such as cleaning, painting, moving furniture, moving equipment, and scrubbing kitchen walls. On April 17, 1980, respondent Tighe, although he had not been assigned to work that day, went to the premises of petitioner Flamingo to pick up his wife, who was then working full time at the motel.
While respondent Tighe was sitting in the bar waiting for his wife, he and several others were asked by Jim Wooley, the maintenance man at the motel, to help move a large, heavy Chinese wok stove into the restaurant kitchen. Petitioner Flamingo was at that time in the process of converting the existing restaurant into a Chinese restaurant. The owner of Flamingo had placed Mr. Wooley in charge of converting the restaurant and had authorized him to get additional help when needed. Wooley offered to compensate each helper with several drinks from the bar. While helping to move the stove, respondent Tighe injured his back.
On April 24, 1980, respondent Tighe filed an industrial accident claim, which was denied by petitioner carrier. Respondent Tighe filed a request for hearing. Following the hearing, the administrative law judge issued, and later affirmed on review, a Decision upon Hearing and Findings and Award for Compensable Claim. The decision included the following findings, which petitioners challenge in this special action--Industrial Commission:
9. In the instant case the applicant was requested to perform services of a very limited nature, i.e., assist in moving a stove and in exchange he would receive a round of drinks for his labor. In the instant case the nature of the employment as well as the duration thereof is of little consequence in arriving at a determination that the applicant had been hired and was an employee of the defendant employer herein.
10. The evidence establishes that the applicant sustained a personal injury by accident arising out of and occurring in the course and the scope of his employment with the defendant employer herein on April 17, 1980.
11. The applicant is entitled to medical, surgical, hospital and/or compensation benefits as provided for by law from April 17, 1980 until such time as his condition is determined to be medically stationary.
We start with the principles that (1) the Workmen's Compensation Act as a whole is remedial in character and is to be construed liberally, S.H. Kress & Co. v. Industrial Commission, 38 Ariz. 330, 299 P. 1034 (1931), and (2) that the definition of "employee" is to be given liberal interpretation in order to properly effectuate the purposes of the Workmen's Compensation Act. DeVall v. Industrial Commission, 118 Ariz. 591, 578 P.2d 1020 (App. 1978). A.R.S. § 23-901(4)(b) 2 defines an "employee" § 23-901. Definitions
4. "Employee", "workmen" and "operative" means:
(b) Every person in the service of any employer subject to the provisions of this chapter, including aliens and minors legally or illegally permitted to work for hire, but not including a person whose employment is casual and not in the usual course of trade, business or occupation of the employer. 3
Because of the conjunctive wording of the exclusion, both requirements must be met before a person will be excluded from the term "employee". Kress, supra; Modern Trailer Sales of Ariz. v. Industrial Commission, 17 Ariz.App. 482, 498 P.2d 556 (1972). Thus, even if his employment was "casual", respondent would be an "employee" covered by workmen's compensation if his employment was "in the usual course of trade, business or occupation of the employer."
The issue presented is essentially whether a person, while engaged in installing equipment, as part of the remodeling of business premises, is engaged "in the usual course of trade, business or occupation of the employer" so as to be an "employee" covered by workmen's compensation. That precise issue has not been addressed previously, but other similar activities have been held to be within the usual course of an employer's business.
Construction of a building in which to carry on the business is in the usual course of business. Greenway Baptist Church v. Industrial Commission, 130 Ariz. 482, 636 P.2d 1264 (App. 1981), and cases cited therein. 4 Repair of a building in which business is carried on is in the usual course of business. Kress, supra. Repair of equipment used in the business is in the usual course of business. Carnes v. Industrial Commission, 73 Ariz. 264, 240 P.2d 536 (1952). Transporting materials to the place of business is in the usual course of business. Employers Mut. Liability Ins. Co. of Wis. v. Industrial Commission, 18 Ariz.App. 403, 502 P.2d 1080 (1972). Servicing inventory at the place of business is in the usual course of business. Modern Trailer Sales, supra. 5
In other jurisdictions, the great majority of decisions have held that remodeling and incidental construction are within the usual course of business. 1C A. Larson, Workmen's Compensation Law, § 51.23 (1980). 6
In accord with the principle of liberal construction and the authorities cited above, we hold that the moving and installation of kitchen equipment which will be used in the employer's restaurant business is employment "in the usual course of trade, business or occupation of the employer" and that the administrative law judge properly found that respondent Tighe was an "employee" of petitioner covered by workmen's compensation.
The award is affirmed.
On this review the petitioning carrier and employer do not question the administrative law judge's determination that an employment relationship existed between the Flamingo Motor Inn and the claimant for the five to twenty minute period during which claimant injured his back. The only issue is whether the employment relationship which existed at that time was such as to bring claimant within the exception to workmen's compensation coverage resulting from the statutory definition of "employee" set forth in A.R.S. § 23-901(4)(b). 7 Under that statutory provision there is excluded from the definition of "employee" for workmen's compensation coverage purposes a person whose employment is both "casual" and "not in the usual course of trade, business or occupation of the employer."
Here, the employer was engaged in running a motel and a restaurant in conjunction with that business. The restaurant had previously been leased out, and upon resuming its operation the employer decided to change it over to a Chinese style food operation. Mr. Wooley, the employer's regular maintenance man, was of the opinion that he could handle the necessary kitchen remodeling, and therefore was given that job, which was not part of his regular maintenance duties. 8
The facts pertinent to the particular employment involved here occurred when the claimant went to the employer's premises to pick up his wife who worked for Flamingo as the head of housekeeping. He waited for his wife in the motel's bar, consuming some drinks during his wait. It was during this period while claimant was sitting at the bar that Mr. Wooley came in and stated to everyone present that he needed assistance in moving a "wok" stove and that he would buy anyone helping him a couple of rounds of drinks. As found by the administrative law judge, this offer "resulted in approximately five patrons, including the [claimant] and the bartender in offering their assistance." During the ensuing five to twenty minute period, while helping to move the "wok" stove into the kitchen, claimant apparently injured his back. It is this five to twenty minute period of employment that is involved in this appeal.
In his award finding the claim compensable, the administrative law judge fully discussed the issues of whether claimant's late filing of his request for hearing should be excused and whether a contract for hire or an employment relationship existed between claimant and the Flamingo Motor Inn at the time of the injury. The administrative law judge's findings on these issues are not questioned on appeal. However, in his award he neither refers to nor discusses the terms of A.R.S. § 23-901(4)(b) relating to the exclusion of coverage where the employment is both casual and not in the usual course of the trade, business or occupation of the employer. 9 Furthermore, he made no factual findings or conclusions of law on these issues.
In paragraph 9 of the award the administrative law judge did make the following statement:
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