P.B. Bell & Associates v. Industrial Com'n of Arizona, 1

• Decision Date: 13 September 1984
• Docket Number: CA-IC,No. 1,1
• Citation: 142 Ariz. 501,690 P.2d 802
• Court: Arizona Court of Appeals
• Parties: P.B. BELL & ASSOCIATES, Petitioner Employer, Argonaut Insurance Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Jean Sandrone, Respondent Employee. 3139.

Page 802

690 P.2d 802

142 Ariz. 501

P.B. BELL & ASSOCIATES, Petitioner Employer Argonaut Insurance Company, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent Jean Sandrone, Respondent Employee.

No. 1 CA-IC 3139.

Court of Appeals of Arizona Division 1, Department B.

Sept. 13, 1984.

Review Denied Nov. 6, 1984.

Jennings, Strouss & Salmon by Steven C. Lester, Phoenix, for petitioner employer and petitioner carrier

Sandra Day, Chief Counsel, Indus. Com'n of Ariz., Phoenix, for respondent.

Timothy J. Kamper, Phoenix, for respondent employee.

OPINION

OGG, Judge.

The issue presented in this special action review of an Industrial Commission award is whether claimant's injury arose out of or in the course of her employment. We hold that the administrative law judge correctly concluded that it did and affirm the award.

The necessary facts are relatively simple and not in dispute. Respondent employee Jean Sandrone (claimant) was employed as an accounts payable clerk by petitioner employer P.B. Bell & Associates (Bell). Claimant did not drive to work but was dropped off by her daughter at the front of the building.

Bell was one of several tenants that leased office space in the Colonial Square Building. To the south of the building, uncovered parking was available for the tenants' employees who drove to work. In addition, there were some covered parking spaces. It is uncontroverted that Bell leased three of these covered parking spaces, paying an additional fee for their use. These spaces were for the use of specified persons. All other Bell employees who drove could park their cars in the uncovered spaces in the southern lot. One of the covered spaces leased by Bell was allotted to the administrative manager, Mary Carol Rogers.

On December 23, 1982, pursuant to previous discussion, claimant, Rogers and two others had plans for a luncheon. The administrative law judge found as a fact that the occasion was a purely social event, and that finding is adequately supported by the evidence. The four were to ride in Rogers' car, which was parked in her usual covered space. To reach the car, the employees exited the building by a door on the south side of the building. The concrete platform directly outside of the door was one step above the sidewalk running along the side of the building. The sidewalk was one step above the parking lot. This was the exclusive ingress and egress used by Rogers. The claimant missed a step, fell, and broke her left hip.

Following the compensability hearing, the administrative law judge issued his findings and award for compensable claim. As noted above, he found that the luncheon was a social, rather than a business function. His other key finding was Number 5, which reads as follows:

Mary Carol Rogers was the administrative office manager of the defendant employer and she invited the three other women in the employer's office to go to a pre-Christmas lunch party at the Doubletree Inn on December 23, 1982. The arrangements were made sometime before that date. About noon of December 23, 1982, the four women went out the back door of the building in which the employer's offices were situated along with other tenants of the office complex. Applicant thought two of four were ahead of her. In any event, applicant managed to step down from the door threshold onto the sidewalk, but she fell at the sidewalk step down to the parking lot surface. The four were headed for Mary Carol Roger's car, which was parked in one of three parking slots provided by the employer. Applicant testified that she had never used that particular exit from the building before and was unfamiliar with it. The case of Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973) is generally considered to have adopted for Arizona the "on premises rule" whereby an injury while going to or from work is considered as arising out of and in the course of work and therefore compensable. It is interesting to note that this case did not hold for the rule because it was not shown that the injury took place on the premises. Nevertheless, the opinion states that the case overrules prior inconsistent cases. See Gaughan v. Industrial Commission, 21 Ariz.App. 137, 516 P.2d 1232 (1974) applying the new rule of law. In Knoop v. Industrial Commission, 121 Ariz. 293 (App.), 589 P.2d 1325 (1979) the opinion of the Court denied the applicability of the Paulley [sic] rule, but carved a new exception to the non-liability while going to and from work. There it is said (p. 297 :

" After careful consideration, we believe that the exception to the going and coming rule for travel across a public road between two portions of the employer's premises is a reasonable exception, at least where, as here, the employee was told to park in the lot where she parked on the day she was injured. In this situation, petitioner was subjected to the risks involved in crossing 14th Street as a result of her employment. By locating the lot where it did so that petitioner had to cross 14th Street, and by telling petitioner to park there, respondent employer helped create the situation which caused her accident and injury. Therefore, an 'origin or cause of the injury' was her employment, and, thus, her injury was one 'arising out of' the employment."

Here the spot provided to Mary Carol Rogers to park her car is analogous to another premise of the employer's premises provided for her use. It makes no difference that the spot was not for applicant's use. The need for travel across the lot was the same for both.

Bell and the carrier filed their request for review one day late, alleging secretarial error as an excuse. The claimant objected to the late filing. The administrative law judge excused the untimely filing, but his decision upon review affirmed the decision upon hearing. A timely petition for special action review was then filed by the petitioner employer and carrier.

We first address the issue of petitioners' late filing of their request for review. This matter was the subject of a motion to dismiss the petition, which was denied by this court by order dated May 4, 1984. To any extent that the claimant's argument was not determined by that order, we explicitly reject claimant's argument that Cook v. Industrial Commission, 133 Ariz. 310, 651 P.2d 365 (1982), only allows the excusing of late requests for review by claimants, but not of late requests for review by employers and carriers. Cook makes no such singular qualification and is equally applicable to claimants, employers and carriers. Therefore, we find that the administrative law judge did not err by excusing the late filing and considering the request for review.

As to the issue of compensability, the petitioners argue that this is a case falling within the going and coming rule, and not subject to any of the exceptions thereto. Claimant argues that the administrative law judge's analysis was correct, or alternatively that claimant's injury is compensable under other exceptions to the going and coming rule.

Generally, of course, the employee's injury by accident must arise out of and in the course of employment. Royall v. Industrial Commission, 106 Ariz. 346, 476 P.2d 156 (1970). The going and coming rule states that an injury sustained by an employee in an accident while going to or coming from work does not arise out of and in the course of employment. E.g., Ebasco Services, Inc. v. Bajbek, 79 Ariz. 89, 284 P.2d 459 (1955). The major exception to the rule is that there is coverage where an employee injures himself while going to or coming from work while he is on the employer's premises. Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973). A trip away from and back to the work premises for the purpose of lunch is indistinguishable from the coming and going at the beginning and end of the work day. 1 Larson, Workmen's Compensation Law, § 15.50 at 4-91 (1983). Therefore, an injury incurred during the journey to and from lunch is generally compensable only if sustained on the employer's premises.

Here, however, there was no finding that the injury was incurred on the premises. Rather, the finding was that the injury was sustained while claimant was traveling from one part of the work premises to another, i.e., from the office to the parking lot. Based upon this finding, the administrative law judge found the holding of Knoop v. Industrial Commission, 121 Ariz. 293, 589 P.2d 1325 (App.1978), dispositive. See also, Larson, supra, at § 15.14. Knoop held that an employee injury sustained on a public thoroughfare lying between the work premises and the employer's parking lot was compensable.

Petitioners argue that the application of Knoop to the present case was error because the leased parking spaces were not a part of the premises since Bell did not control the parking spaces. Therefore, petitioners argue that the "travel between two parts of the premises" rule does not apply. The majority disagrees.

In Knoop, the employer leased a lot across a public street from its premises. It was uncontroverted that the claimant and other employees had orders to park in the leased lot. The street was owned and maintained by the City of Phoenix. The court first found Pauley, supra, inapplicable because the claimant was obviously not injured on the premises. The court then stated:

In this case, it is clear that petitioner was injured while walking from the leased parking lot to the employer's buildings. The leased parking lot is considered the employer's premises. Gaughan v. Industrial Commission, 21 Ariz.App. 137, 138, 516 P.2d 1232, 1233 (1973); 1 Larson's Workmen's Compensation Law § 15.41 (1978). Since petitioner was injured between two parcels of the employer's premises while going to work, the going and coming rule itself would prevent her from receiving compensation unless some relevant exception to that rule applies.

Professor Larson has described...