Lemmon v. Industrial Com'n of Arizona

• Citation: 154 Ariz. 63,740 P.2d 484
• Decision Date: 03 July 1986
• Docket Number: No. 1,CA-IC,1
• Parties: David LEMMON, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Kamsco, Respondent Employer, Insurance From CNA, Respondent Carrier. 3441.
• Court: Court of Appeals of Arizona

Page 484

740 P.2d 484

154 Ariz. 63

David LEMMON, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Kamsco, Respondent Employer, Insurance From CNA, Respondent Carrier.

No. 1 CA-IC 3441.

Court of Appeals of Arizona,

Division 1, Department A.

July 3, 1986.

Review Denied Oct. 15, 1987.

Charles M. Wilmer, P.C. by Charles M. Wilmer, Phoenix, for petitioner.

Dennis P. Kavanaugh, Chief Counsel, Industrial Com'n of Arizona, Phoenix, for respondent.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.C. by David W. Earl, J. Victor Stoffa, Larry L. Smith, Phoenix, for respondents employer and carrier.

OPINION

JACOBSON, Presiding Judge.

This special action review arises from the Industrial Commission's decision regarding claimant Lemmon's assertion that he suffered industrial injuries arising out of his employment with respondent KAMSCO.

For approximately five months prior to the incident in question, claimant worked for KAMSCO as an electrician's helper. During this period, claimant and other KAMSCO employees performed construction work at a condominium complex. Portions of the complex had been completed, sold and occupied by residents. KAMSCO expressly prohibited its employees from entering completed areas during work hours.

On Saturday, September 22, 1984, claimant and his co-employees worked on an uncompleted portion of the complex from approximately 7:00 a.m. until 12:00 noon. Viewed in a light most favorable to sustaining the award, the evidence indicates the following events took place after work ceased on September 22. Claimant and a co-worker left the construction site, purchased beer, and returned to the site, where they consumed beer with other KAMSCO employees until approximately 1:30 p.m. Claimant and his co-workers joined in this activity without the knowledge or consent of their supervisor, Bruno Klasener. At 1:30 p.m., claimant and one other KAMSCO employee entered a swimming pool area adjacent to the construction site. This swimming pool was located in the completed, occupied portion of the condominium complex prohibited to KAMSCO employees. Claimant continued to drink beer, and at approximately 4:15 p.m., after consuming ten to thirteen beers, claimant climbed to the roof of a condominium unit nearby and attempted to dive into the pool. Claimant's attempted dive failed to reach the water, and he sustained numerous injuries from his impact with the pool deck.

Claimant filed a Report of Injury with the Industrial Commission, alleging that his injuries from the diving accident arose out of and in the course of his employment with KAMSCO. CNA, the respondent carrier, issued a Notice of Claim Status denying claimant's request for benefits. Claimant subsequently filed a Request for Hearing, and formal hearings followed.

The administrative law judge heard testimony of several witnesses, including claimant, his co-workers, eyewitnesses to the accident and surrounding circumstances, Bruno Klasener (claimant's supervisor) and Dr. Edward B. Waldman, M.D. Evidence presented through these witnesses established Bruno Klasener regularly provided beer to KAMSCO employees, including claimant, at the construction site on Fridays, after work ceased and the employees received their paychecks. Klasener purchased enough beer on these occasions to equal approximately two to three beers per person. No employees were required to remain after work ceased for this social activity that rarely lasted longer than one and a half hours. None of the KAMSCO employees who testified recalled anyone departing from these brief Friday gatherings in an intoxicated state.

The evidence further indicated Bruno Klasener was unaware KAMSCO employees drank at the job site after work on the few Saturdays their services were needed. Klasener admitted having discovered KAMSCO employees, other than claimant, drinking alcohol during work hours on a Saturday at least one year prior to claimant's accident. He testified that upon realizing these workers had been drinking, he severely reprimanded them and sent them home.

After considering this evidence, the administrative law judge concluded that claimant's injuries were not industrially related, stating:

It is believed in the instant case that applicant's overindulgence and loss of judgment should not be an industrial responsibility and that applicant's excessive drinking which resulted in injury was the result of applicant's own appetites and not the consequence of company supported or tolerated activity.

While it is conceivable applicant may have had a beer while working prior to 12:00 noon, it is not believed such drinking was encouraged or tolerated by the employer. It is further believed that applicant's consumption of beer began about 12:00 noon following work and ended off the job site at about 4:15 p.m. The mere fact of on-site drinking between 12:00 noon and 1:30 p.m. without other nexus to employment should not constitute a basis for finding applicant sustained an injury by accident arising out of and in the course of his employment.

The administrative law judge reached these conclusions after determining that no Arizona case law directly on point existed to resolve whether claimant's injuries were compensable. The judge accordingly considered the holdings in McCarty v. Workmen's Compensation Board, 12 Cal.3d 677, 117 Cal.Rptr. 65, 527 P.2d 617 (1974) and Herman v. Greenpoint Barrel & Drum Reconditioning Co., 9 A.D.2d 572, 189 N.Y.S.2d 353 (1959), aff'd, 8 N.Y.2d 880, 203 N.Y.S.2d 922, 168 N.E.2d 721 (1960), in deciding the present case. The decision below was affirmed on review and claimant filed the instant special action petition.

We must decide the sole question whether claimant's injuries arose out of and in the course of his employment with KAMSCO. Claimant specifically presents the question whether his intoxication arose out of and in the course of such employment. He contends such intoxication led him to assume a risk, in diving from the condominium roof, he otherwise would not have assumed.

Claimant's argument in this respect places the instant case beyond the boundaries of our holding in Anderson Clayton & Co. v. Industrial Commission, 125 Ariz. 39, 607 P.2d 22 (App.1979). In Anderson Clayton, we addressed the question whether injuries sustained by an employee who jumped seventy feet from a conveyor belt to a cottonseed pile were compensable under our workers' compensation law. Such injuries were held noncompensable, even though the incident occurred during work hours and on the employer's premises, because the horseplay involved was so far astray of normally expected horseplay that it did not arise "in the course of" the claimant's employment. As noted previously, however, the present claimant does not simply maintain that his diving...