Gurtler v. Indus. Comm'n of Ariz.

• Decision Date: 28 July 2015
• Docket Number: No. 1 CA–IC 13–0052.,1 CA–IC 13–0052.
• Parties: Lisa GURTLER, Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, City of Scottsdale, Respondent Employer, City of Scottsdale, Respondent Carrier.
• Court: Arizona Court of Appeals

237 Ariz. 537

354 P.3d 414

718 Ariz. Adv. Rep. 19

Lisa GURTLER, Petitioner Employee

v. The INDUSTRIAL COMMISSION OF ARIZONA, RespondentCity of Scottsdale, Respondent EmployerCity of Scottsdale, Respondent Carrier.

No. 1 CA–IC 13–0052.

Court of Appeals of Arizona, Division 1.

July 28, 2015.

Joel F. Friedman, PLLC by Joel F. Friedman, Phoenix, for Petitioner Employee.

Industrial Commission of Arizona by Andrew F. Wade, Phoenix, for Respondent.

Klein, Doherty, Lundmark, Barberich & LaMont, P.C. by R. Todd Lundmark, Phoenix, for Respondent Employer and Carrier.

Judge MICHAEL J. BROWN delivered the opinion of the Court, in which Presiding Judge RANDALL M. HOWE and Judge JON W. THOMPSON joined.

OPINION

BROWN, Judge:

¶ 1 Lisa Gurtler sustained multiple injuries from a car accident that occurred as she was driving home, only minutes after she conducted a business errand at the end of her work day. Her subsequent claim for workers' compensation was denied. Because we conclude that Gurtler's accident did not occur while she was in the course of her employment, we affirm the decision by the administrative law judge (“ALJ”) that the claim was noncompensable.

BACKGROUND

¶ 2 We view the evidence in the light most favorable to upholding the ALJ's award. Munoz v. Indus. Comm'n, 234 Ariz. 145, 147, ¶ 2, 318 P.3d 439 (App.2014). Gurtler was employed by the self-insured respondent employer, City of Scottsdale, as an assistant auditor responsible for assisting with auditing various programs and functions as approved by the City Council. Gurtler performed her work both at her office in Scottsdale and at the offices of her “audit clients.” She drove her personal vehicle for out-of-office appointments, and although travel reimbursement was available, she requested it only about one-third of the time. Gurtler usually worked from 7:30 a.m. to 5:00 p.m., with a half-hour for lunch.

¶ 3 In the days leading up to her injury, Gurtler had been doing some preliminary work for an upcoming audit of Vista del Camino (“VDC”), a City facility that provides welfare and community assistance programs. She had borrowed a “policy and procedure” manual from Kathy Breen, VDC's manager, to familiarize herself with VDC's functions, and had told VDC she would return the manual on Monday, January 23, 2012. Gurtler was unable to return the manual on Monday, so in an email exchange with Ms. Breen, she promised instead to return it the next day.

¶ 4 Gurtler left her office on Tuesday afternoon at about 5:15 p.m. and drove 2.8 miles to VDC to deliver the manual. According to Gurtler, she wanted to return it in a timely manner to demonstrate professionalism and to develop a good rapport with the new audit client. She testified that she was not required to return the manual on Tuesday, and had no required time frame for returning audit documents. Gurtler also acknowledged that rather than return the manual herself, she could have used the City's internal mail delivery system, with daily pick-up and delivery between all City departments, to return it.

¶ 5 When Gurtler arrived at VDC, the office was closed, so she put the manual through a “glass opening” at the reception desk along with her business card and then left to drive home. The accident occurred shortly before she reached the point that would have placed her back on the route she typically used for her daily commute (Scottsdale Road).¹ As Gurtler would later explain, although her work for the day was completed and she was driving home, she would not have been at the location where the accident occurred were it not for her trip to the VDC office. Gurtler filed a workers' compensation claim with the Industrial Commission of Arizona (“ICA”) for injuries she sustained in the accident, but her claim was denied and she timely requested a hearing.

¶ 6 After hearing testimony, the ALJ found that Gurtler's claim was precluded by the going and coming rule and none of the exceptions to the rule applied. Gurtler timely requested administrative review, asserting that the ALJ erred in failing to apply the dual purpose doctrine, a recognized exception to the going and coming rule. The ALJ summarily affirmed the award and this timely appeal followed.

DISCUSSION

¶ 7 Generally, we will not set aside an ICA decision and award reasonably supported by the evidence. Finnegan v. Indus. Comm'n, 157 Ariz. 108, 109, 755 P.2d 413 (1988). We defer to the ALJ's factual findings, but review questions of law de novo. Young v. Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298 (App.2003). As the claimant, Gurtler has the burden of showing she is entitled to compensation. Malinski v. Indus. Comm'n, 103 Ariz. 213, 216, 439 P.2d 485 (1968).

A. The Going and Coming Rule

¶ 8 For an injury to be covered by Arizona's Workers' Compensation Act (“the Act”), the injury must “aris[e] out of” and be sustained “in the course of” an activity related to the claimant's employment. Ariz. Const. art. 18, § 8 ; Ariz.Rev.Stat. (“A.R.S.”) § 23–1021(A) ; Finnegan, 157 Ariz. at 109, 755 P.2d 413. “Whether an activity is related to the claimant's employment—making an injury sustained therein compensable—will depend upon the totality of the circumstances.” Finnegan, 157 Ariz. at 110, 755 P.2d 413.

¶ 9 The Act, like similar provisions in other jurisdictions, “was not intended to give protection to workers going to and from work.” Malinski, 103 Ariz. at 217, 439 P.2d 485. Thus, as a general rule, the going and coming rule excludes an employee's ordinary commute to and from work from the protections of the Act:

It is of course the general rule in compensation cases ... that [an employee] does not enter an employment until [ ]reach[ing] the place where the work of [the] employer is to be carried on, and similarly, when [the employee] has finished all the work required ... and leaves the place of business ... to go ... home, [the employee] has left the employment, and that an accident which may occur [on the employee's way to or from] work is not in the due course of [ ] employment.

Ebasco Servs., Inc. v. Bajbek, 79 Ariz. 89, 93, 284 P.2d 459 (1955) (quotation omitted) (emphasis added). The reasoning behind the rule is that until an employee actually begins work or arrives at her employer's premises, any risk of injury is the same as those faced by the general public and not related to the employment. Hansen v. Indus. Comm'n, 141 Ariz. 190, 192–93, 685 P.2d 1342 (App.1984).

¶ 10 It is undisputed that after leaving her office for the day, Gurtler carried out a business errand by returning the policy manual to VDC. Upon completion of that task, her work for the day had ended and she was driving toward her home when the accident occurred. Under a plain application of the going and coming rule, Gurtler was not injured while in the course of her employment. Therefore, absent one of the several exceptions to the going and coming rule, Gurtler's traffic accident falls outside the coverage of the Act. See generally Arizona Workers' Compensation Handbook § 4.2.2, at 4–2 to –9 (Ray Jay Davis, et al., eds., 1992 & Supp.2013) (noting various exceptions to the going and coming rule, such as going and coming on the employer's premises, performing a special errand, employer conveyance, payment for travel time or expenses, dual purpose trips, and deviations).

B. Dual Purpose Exception

¶ 11 Gurtler asserts that because the ALJ found that delivery of the VDC manual “was in the course and scope of her employment,” she qualifies for coverage under the Act based on the dual purpose doctrine, a commonly asserted exception to the going and coming rule. The dual purpose doctrine is based on a test enunciated in Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), which our supreme court later adopted:

If the work of the employee creates the necessity for travel, [the employee] is in the course of [ ] employment, though he is serving at the same time some purpose of his own.... If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been cancelled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.

Butler v. Indus. Comm'n, 50 Ariz. 516, 522–23, 73 P.2d 703 (1937) (citations and quotations omitted) (overruled on other grounds by Wiley v. Indus. Comm'n, 174 Ariz. 94, 97, 847 P.2d 595 (1993) ).

¶ 12 The Marks' Dependents rule has been clarified such that “there is no need to evaluate the primary purpose of the trip, nor must a court find that absent the personal motive, the business trip would have been taken ‘by this particular employee at this particular time. ’ ” 2 Lex K. Larson, Larson's Workers' Compensation Law § 16.03, at 16–4 (Matthew Bender, Rev. Ed. & Supp.2014) (“Larson's ”).

It is enough that someone sometime would have had to take the trip to carry out the business mission. Perhaps another employee would have done it; perhaps another time would have been chosen; but if a special trip would have had to be made for this purpose, and if the employer got this necessary item of travel accomplished by combining it with this employee's personal trip, it is accurate to say that it was a concurrent cause of the trip, rather than an incidental appendage or afterthought.

Id. (emphasis added).

¶ 13 Campbell v. Industrial Commission, 165 Ariz. 583, 586, 799 P.2d 1357 (App.1990), illustrates the application of this principle. In Campbell, a ranch hand was injured while on his way into town to perform some personal errands and to purchase several items for his employer at a hardware store. The employer testified the items requested were not urgently needed, they were not important enough for a special trip, and he doubted the employee would have been sent for them if he were not traveling to town on personal business. Id. at 585, 799 P.2d 1357. The employee acknowledged “he would have taken the trip even if there had...