Lane v. Industrial Com'n of Arizona

• Decision Date: 21 March 2008
• Docket Number: No. 2 CA-IC 2007-0007.,2 CA-IC 2007-0007.
• Citation: 218 Ariz. 44,178 P.3d 516
• Parties: Kelly J. LANE, Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, City of Tucson, Respondent Employer, City of Tucson, Respondent Insurer.
• Court: Arizona Court of Appeals

178 P.3d 516

218 Ariz. 44

Kelly J. LANE, Petitioner Employee, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent City of Tucson, Respondent Employer City of Tucson, Respondent Insurer.

No. 2 CA-IC 2007-0007.

Court of Appeals of Arizona, Division 2, Department B.

March 21, 2008.

Brian Clymer, Tucson, Attorney for Petitioner Employee.

The Industrial Commission of Arizona by Laura L. McGrory, Phoenix, Attorneys for Respondent.

Frank W. Frey, Tucson, Attorney for Respondents, Employer and Insurer.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 In this statutory special action, petitioner Kelly Lane challenges the administrative law judge's (ALJ) ruling that Lane's claim for workers' compensation benefits was noncompensable because his injury from a gunshot wound did not arise out of and occur in the course of his employment as a police officer. For the following reasons, we set aside the award.

¶ 2 The following facts are essentially undisputed. After his claim for workers' compensation benefits was denied by the City, Lane requested a hearing before an ALJ. At the hearing, Lane, an officer for the Tucson Police Department (TPD), testified he had been riding his mountain bike while off duty at night in rural Pinal County with two friends, Randy R. and Keith L. After the ride, they were standing near their two vehicles, which were parked about four or five hundred feet from the main road. At that time, Lane and Keith heard gunshots in the distance about a mile away, an event Lane considered unusual because it was nighttime. At Lane's suggestion, they decided to pack up and leave the area.

¶ 3 As they did so, a car approached from the same direction as the shots and then abruptly stopped. Its lights illuminated the area, and Lane heard a voice say, "We got her five times." The occupants of the car then began firing bullets in their direction, and Lane dove for cover behind the engine compartment of his vehicle.

¶ 4 Lane testified that while hiding, he had begun to make a plan of action to apprehend the suspects and investigate a possible homicide. But he soon realized his friend Randy was not protected, and his "priorities changed from trying to capture these guys and have them identified, to going back; and making things safe for [his] friends and [him]self." Lane tried yelling out to Randy but he "looked to be kind of frozen in space, he wasn't reacting." Lane then ran over to Randy and was about to place his hand on Randy's right shoulder in order to get him behind the vehicle when Lane was shot in the back. He later maintained that, when he left the position of safety behind his vehicle to assist Randy, he did so in part based on his police training and in part because "[he] would do that for a friend, even if [he] wasn't a cop."

¶ 5 Keith testified he had taken cover behind the front of Randy's vehicle when bullets began coming in his direction. He did not "know for sure if [he was] protected in that location," and he was not certain of the direction from which the bullets were coming. He saw Lane running toward him and then "roll up against Randy's vehicle."

¶ 6 Lane later wrote a report to his supervisors about the incident. In that report he stated that, after he had been shot, he had lost consciousness. He awoke while his friends were loading him into his vehicle. While en route to meet paramedics, Lane and his friends passed what they believed was the car whose passengers had shot at them. Lane told Keith to memorize the license plate number and a description of the vehicle, which Keith apparently reported to the sheriffs department. Lane was transported by helicopter to the hospital for emergency surgery. As part of his recovery, he underwent several more surgeries and spent thirty days in the intensive care unit of the hospital.

¶ 7 Captain David Neri of TPD was Lane's supervisor at the time Lane was injured and also testified at the hearing. Neri investigated the incident and determined that the individuals in the car had been shooting randomly and had no intention to shoot Lane at all nor target him because of his employment. However, Neri also concluded Lane had been "acting as a law enforcement officer at the time of the shooting."

¶ 8 After the hearing, the ALJ issued an award finding Lane's claim noncompensable because he had not been acting as a peace officer at the time he was injured and therefore implicitly concluding his injury did not "aris[e] out of and in the course of his employment" as required by A.R.S. § 23-1021(A) to be compensable. The ALJ affirmed his decision upon review, and this statutory special action followed.

¶ 9 When reviewing an industrial commission award, "[w]e defer to the ALJ's factual findings, and we consider the evidence in the light most favorable to upholding the award." PF Chang's v. Indus. Comm'n, 216 Ariz. 344, ¶ 13, 166 P.3d 135, 138 (App.2007) (citations omitted). However, we independently review legal conclusions, such as the issue raised here: did Lane's injury arise out of and in the course of his employment and is it, therefore, compensable. Id. The "arising out of element "refers to the origin or cause of the injury"; the "in the course of element refers to "the time, place, and circumstances of the accident in relation to the employment." Royall v. Indus. Comm'n, 106 Ariz. 346, 349, 476 P.2d 156, 159 (1970). Although we must analyze the elements separately, "in determining whether the necessary degree or quantum of "work-connection' is established to bring the claimant under the coverage of the Act, it is also necessary to consider them together." Id. at 350, 476 P.2d at 160. We are also mindful that we must interpret "the Workers' Compensation Act liberally in order to effectuate its remedial purpose." Schuck & Sons Constr. v. Indus. Comm'n, 213 Ariz. 74, ¶ 13, 138 P.3d 1201, 1204 (App.2006); see also McCloud v. Ariz. Dep't of Pub. Safety, 217 Ariz. 82, ¶ 32, 170 P.3d 691, 701 (App.2007) (acknowledging duty to construe workers' compensation statutes liberally).

ARISING OUT OF EMPLOYMENT

¶ 10 In order for an injury to be considered arising out of employment, "the injury must result from some risk of the employment or be incidental to the discharge of the duties thereof." PF Chang's, 216 Ariz. 344, ¶ 15, 166 P.3d at 138. Lane argues his injury arose out of his employment because "his work as a law enforcement officer increased the risk that he would be injured while responding to criminal activity, such as a shooting."

¶ 11 In evaluating employment-related risks, we consider both the nature and origin of the risk. Id. ¶ 16. Four different types of employment-related risks can establish that the nature of the risk justifies compensation: those particular to the employment (peculiar risk); those to which the employment causes an increased exposure even if not particular to the employment (increased risk); those that are actual risks of the employment (actual risk); and those that would not occur "but for the fact the employment placed the employee in a position where he or she was injured," (positional risk). Nowlin v. Indus. Comm'n, 167 Ariz. 291, 293, 806 P.2d 880, 882 (App.1990); accord Martinez v. Indus. Comm'n, 192 Ariz. 176, ¶ 18, 962 P.2d 903, 907 (1998).

¶ 12 In separately assessing the origin of the risk, we must determine whether it is "[distinctly work related, . . . [w]holly personal, . . . [m]ixed, . . . [or n]eutral." PF Chang's, 216 Ariz. 344, ¶ 16, 166 P.3d at 139. A neutral risk is one that originates from a source that is "neither distinctly personal to [the] claimant nor associated with the employment," Circle K Store No. 1131 v. Indus. Comm'n, 165 Ariz. 91, 96, 796 P.2d 893, 898 (1990), whereas with a mixed risk, "personal causes and work combine to produce the harm." Nowlin, 167 Ariz. at 294, 806 P.2d at 883.

¶ 13 Here, the ALJ found that, because the shooter neither had targeted Lane because he was a police officer nor because of any reason personal to Lane, the origin of the shooting was neutral. The ALJ's reasoning is somewhat less clear as to the nature of the risk. But his findings suggest that the nature of the harm was not employment related because (1) Lane conceded that he may have tried to help his friends regardless of whether his responsibilities as an off-duty police officer would have required it and (2) his exposure of himself by running toward his friends did not involve wise police judgment and therefore could not be attributed to his employment role. Presumably, the ALJ thus concluded that neither the origin nor the nature of the risk supported the conclusion that the injury arose out of some risk related to Lane's employment as a police officer.

¶ 14 In our view, those findings overlook that, under well-established law, Lane suffered both an increased risk and, arguably, a peculiar risk arising out of his employment under the specific circumstances of the case. Although Lane was off duty, the relevant code of conduct for his employment required him to "act in an official capacity if [he] observe[d] an incident requiring police action . . . [to] safeguard life, property, or prevent the escape of a felon or violent criminal."¹ Because of that duty, Lane was exposed to an increased risk of being injured by gunfire if a crime or other threat to life occurred in his presence than would be faced by a similarly situated non-officer.² See 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law (Larson) § 8.01[1][a], at 8-3 (2007) (employment as police officer creates special risk of assault); Jordan v. St. Louis County Police Dep't, 699 S.W.2d 124, 127 (Mo.Ct.App.1985) (off-duty police officer's death "during commission of a felony" was "natural and rational consequence of a hazard or risk inherent in his employment"); Luketic v. Univ. Circle, Inc., 134 Ohio App.3d 217, 730 N.E.2d 1006, 1011 (1999) (duty to protect the public constitutes "special hazard" to off-duty officer, "which is...