Jaimes v. Industrial Com'n of Arizona

• Decision Date: 27 February 1990
• Docket Number: CA-IC,No. 1,1
• Citation: 163 Ariz. 307,787 P.2d 1103
• Parties: Serafin O. JAIMES, Petitioner, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Desert Hills Golf Course, Respondent Employer, State Compensation Fund, Respondent Carrier. 89-029.
• Court: Arizona Court of Appeals

Page 1103

787 P.2d 1103

163 Ariz. 307

Serafin O. JAIMES, Petitioner, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent Desert Hills Golf Course, Respondent Employer State Compensation Fund, Respondent Carrier.

No. 1 CA-IC 89-029.

Court of Appeals of Arizona Division 1, Department A.

Feb. 27, 1990.

Ely, Bettini & Ulman by Joseph M. Bettini, Phoenix, for petitioner.

Anita R. Valainis, Chief Counsel, The Industrial Com'n of Arizona, Phoenix, for respondent.

Christopher E. Kamper, Chief Counsel, State Compensation Fund by Robert T. Wilson, Phoenix for respondent employer & carrier.

OPINION

SHELLEY, Judge.

This is a special action review of an Industrial Commission award denying compensability. The administrative law judge (judge) found that the accident resulted from horseplay, and concluded that it had occurred outside the course of employment because "there seems to have been repeated misconduct particularly involving dangerous machinery and past warnings...." We must decide whether the horseplay constituted an insubstantial deviation as a matter of law. Because the deviation was insubstantial, we set aside the award.

Petitioner employee (claimant) was a golf course maintenance worker for respondent employer (Desert Hills). Desert Hills supplied a three-wheel utility cart for transportation of maintenance equipment and personnel from one part of the course to another. Although the cart had seats only for the driver and one passenger, no evidence was presented concerning a safety rule or custom restricting use of the cart to two workers.

On November 9, 1987, after completing work at one hole, claimant and two other workers set off in the cart on the normal route to another work area. One of the other workers (Rafael Garcia) drove; the other worker (Julio DeLeon) occupied the passenger seat; claimant, the judge found, sat on the dashboard facing the other two workers. In the course of this trip, claimant fell from the cart and sustained multiple serious injuries when it ran over him.

Claimant filed a workers' compensation claim for these injuries. Desert Hills reported that claimant had fallen from the cart because of horseplay with the driver. Based on this report, respondent carrier State Compensation Fund (SCF) denied compensability. Claimant protested this denial, and hearings were scheduled.

Pending the hearings, an investigator for SCF telephonically interviewed Garcia. Garcia stated that claimant was sitting on the dash facing DeLeon. As Garcia was slowly making a turn, claimant was "tickling me in the stomach and I stopped paying attention ... I kind of let go of the [rudder]." As a result, the cart moved to one side, Garcia braked, and the shift in momentum caused claimant to fall. Garcia denied intentionally running over claimant or fighting with him.

At the scheduled hearings, claimant, Garcia, their supervisor, and the investigator appeared. Claimant testified that he was sitting in the passenger seat of the cart and had fallen when Garcia stopped to make a turn. He denied that any horseplay contributed to the accident.

Garcia testified that claimant was riding in the back of the cart and fell from it during the course of a turn. He nevertheless confirmed that claimant fell in front of the cart and that all three tires ran over him. Garcia also denied that any horseplay had occurred or that he had ever let go of the rudder.

The supervisor testified that he had not witnessed the accident but reached the scene within fifteen minutes. Claimant and Garcia had reported to him that claimant fell from the cart after being hit in the face with a golf ball. This account also appears in the initial hospital history. DeLeon, however, had reported that Garcia and claimant had been "batting" or "boxing" with one another and that claimant had stood up in the cart before he fell out. The supervisor also testified that Desert Hills has a policy against horseplay, that he had previously warned Garcia about horseplay, and that he had fired both Garcia and DeLeon for engaging in horseplay. Finally, the supervisor testified that although the physical evidence confirmed that the cart had run over claimant, it was difficult to reconstruct the mechanics of the accident.

The investigator described her interview with Garcia and confirmed that the transcription accurately reflected his statements. She also testified that Garcia never expressed any difficulty remembering the accident.

After receiving memoranda concerning the legal effect of horseplay, the judge issued the award. The dispositive findings state:

4. The best evidence is that Serafin Jaimes [claimant] was seated on the dashboard of the three wheeled truckster with his back to the course of travel. Rafael Garcia was driving and Julio DeLeon was in the passenger seat. Two days before the incident here involved, Phil Shoemaker, the course superintendent, had warned Rafael about "horseplay". A statement taken by Pat Young, State Compensation fund investigator, on February 1, 1988 over the telephone in Spanish of Rafael makes it clear that Serafin was tickling Rafael in the stomach and as a consequence Rafael let go of the "timon" or rudder. This it seems was just before Serafin fell and was run over by the cart causing serious injury. There is also some evidence the three were also playing with a horn on the cart. Upon learning of the horseplay, Mr. Shoemaker fired Rafael and DeLeon on the spot.

5. It is conceded that the three were in the usual path just going to the fourth tee. Horseplay that is an expected part of a job or which has been condoned may not be considered a deviation or abandonment and thus not out of the course of employment. However, where, as here, there seems to have been repeated misconduct particularly involving dangerous machinery and past warnings, it is believed the participants have taken themselves out of the course of employment.

This award was affirmed without modification on administrative review. Claimant then brought this special action.

On review, claimant concedes that this court must defer to the judge's factual finding that horseplay caused the accident. But he asserts that the conclusion that the horseplay removed claimant from the course of employment is one of law and contrary to Arizona and other authority requiring a substantial deviation to deny compensation.

Claimant interprets two Arizona cases to establish the requirement of substantial deviation before a worker is removed from the course of employment. The first case is Anderson Clayton & Co. v. Industrial Comm'n, 125 Ariz. 39, 607 P.2d 22 (App.1979). Anderson Clayton does establish that a substantial deviation involving departure from the work area without conceivable benefit to the employer removes the worker from the course of employment. Id. at 42, 607 P.2d at 25. But this case does not establish that a claim is compensable despite horseplay unless the deviation is substantial. Rather, after noting the absence of Arizona authority, the court merely assumed that regularly occurring horseplay may become a part of the course of employment. Id. at 41-42, 607 P.2d at 24-25 (citing Industrial Commissioner v. McCarthy, 295 N.Y. 443, 68 N.E.2d 434 (N.Y.1946)).

The second case cited by claimant is Schroeder v. Industrial Comm'n, 132 Ariz. 455, 646 P.2d 886 (App.1982). Schroeder similarly does not establish the limits of compensable horseplay. The claimant in Schroeder was injured while riding double on a forklift, a practice prohibited by the employer, but there was no evidence that riding double caused the accident. Id. at 456, 646 P.2d at 887. Although the administrative law judge described this activity as horseplay, the carrier did not defend this characterization and this court found insufficient factual support for it. Id. at 457, 646 P.2d at 888. Rather, the case involved work-related travel performed in an unauthorized manner and the legal analysis concerned the effect of this violation of a safety rule. Id. at 457-59, 646 P.2d at 888-90.

We accordingly reject claimant's interpretation of these cases as establishing the requirement of substantial deviation. A substantial deviation such as occurred in Anderson Clayton clearly is sufficient to bar compensation. It remains unsettled, however, whether such a substantial deviation is necessary to bar compensation. Furthermore, although both Schroeder and the current case involve work-related travel, there are significant dissimilarities as well. The current case involves horseplay, not a violation of a safety rule, and this horseplay caused the injury to occur.

Although Arizona has not yet adopted a substantial deviation requirement, it has accepted the premises underlying this rule. First, prior cases have rejected the aggressor defense in work-related assaults because fault is irrelevant to compensability. See, e.g., Burnett v. Industrial Comm'n, 158 Ariz. 548, 552, 764 P.2d 33, 37 (App.1988); Colvert v....