Sacks v. Industrial Commission

• Decision Date: 24 September 1970
• Docket Number: No. 1,R,CA-IC,1
• Citation: 13 Ariz.App. 83,474 P.2d 442
• Parties: Toby SACKS, Petitioner, v. INDUSTRIAL COMMISSION of Arizona, Respondent, Tucson School Districtespondent Employer, State Compensation Fund, Respondent Carrier. 325.
• Court: Arizona Court of Appeals

Page 442

474 P.2d 442

13 Ariz.App. 83

Toby SACKS, Petitioner, v. INDUSTRIAL COMMISSION of Arizona, Respondent Tucson School District No. 1, Respondent Employer State Compensation Fund, Respondent Carrier.

No. 1 CA-IC 325.

Court of Appeals of Arizona, Division 1, Department B.

Sept. 24, 1970.

Rehearing Denied Oct. 27, 1970.

Davis & Eppstein by Robert W. Eppstein, Tucson, for petitioner.

Donald L. Cross, Chief Counsel, Phoenix, for the Industrial Commission of Arizona.

Robert K. Park, Chief Counsel, by Dee-Dee Samet, Tucson, for State Compensation Fund.

JACOBSON, Judge.

The petitioner in this Workmen's Compensation proceeding was a stock clerk in the employ of the respondent School District on April 22, 1968, ¹ when she sustained a protrusion or herniation of lumbar discs while arising from a toilet on the premises of the employer. The issue before us is whether the injury was one 'arising out of' the petitioner's employment. See A.R.S. § 23--1021, subsec. A. Under the facts, we find ourselves in agreement with the determination of the Commission denying compensation.

While the evidence adduced at the hearing before the referee indicates that petitioner had been engaged in some light physical activity prior to her unfortunate experience, there is no contention here that this activity was instrumental in producing the injury in question. Petitioner has no quarrel with the facts found by the referee, which he paraphrases in his 'Statement of Facts' as follows:

'According to the Referee's Report, applicant clearly had a pre-existing low back instability which was aggravated by the arising from the toilet. This act produced the herniation of the discs. The discs were later removed, surgically.

'The toilet was a normal toilet, provided by the employer on the premises for use of petitioner and other female employees during working hours. The incident occurred during petitioner's working hours, while she was arising after using the toilet for its normal purpose, and in a normal manner.

'The Commission found this to be an 'accident,' and 'in the course of employment,' but not 'arising out of' the employment; hence a non-compensable claim.'

Petitioner makes reference to what has been called the 'personal comfort doctrine.' Under this doctrine, it is commonly held that employees who engage in reasonable acts which minister to their personal comforts remain within the course and scope of employment, and may be compensated for resulting injuries which can be said to arise out of the employment. See generally 1 A. Larson, The Law of Workmen's Compensation § 21.00 et seq. (1968), and 7 Schneider's Workmen's Compensation § 1617 et seq. (Perm. ed. 1950). Accordingly, it has been held that accidents occurring while an employee is seeking toilet facilities or otherwise attending to a call of nature are compensable. Larson, Supra, § 21.53; Schneider, Supra, § 1622.

There is no question but that Arizona gives effect to this 'personal comfort doctrine.' See Nicholson v. Industrial Commission, 76 Ariz. 105, 259 P.2d 547 (1953), and Goodyear Aircraft Corp. v. Industrial Commission, 62 Ariz. 398, 158 P.2d 511 (1945). However, our Supreme Court has also made it clear that the 'arising out of' language of A.R.S. § 23--1021, subsec. A requires that there be a causal connection between the employment and the injury. See City of Phoenix v. Industrial Commission, 104 Ariz. 120, 122, 449 P.2d 291, 293 (1969), Quoting from McCampbell v. Benevolent & Protective Order of Elks, etc., 71 Ariz. 244, 251, 226 P.2d 147, 150 (1950); See also Whitington v. Industrial Commission, 105 Ariz. 567, 468 P.2d 926 (1970). As pointed out in the City of Phoenix case, Supra, the constitutional basis for our Workmen's Compensation Law refers to risks of the employment or inherent in the nature of the Employment, and...