Stephenson v. Industrial Commission , 23 Ariz. App. 424 ( 1975 )

OPINION

NELSON, Presiding Judge.

This appeal presents the Court with a case of first impression in Arizona: may an injury received during a voluntary recreational activity which takes place partially on and partially off the employer’s immediate premises at lunch time, be considered an industrial injury “arising out of and in the course of employment”? Answering this general question in the affirmative, we find under the facts of this case that the injury is compensable, and therefore, we must set aside the award of the Industrial Commission of Arizona.

Robert L. Stephenson (Stephenson), petitioner, was playing “catch” with a co-employee during his lunch break when he herniated a lumbar disc as he bent over to pick up the baseball. While there is some conflict in the testimony as to the precise level of lunch time recreational activity at the time Stephenson was injured, it is undisputed that such activity had gone on for years and had included baseball, touch football and basketball. The employer encouraged the activity, thinking it to be good for morale to the extent that it may have lessened his turnover rate, he participated himself when time permitted, and he furnished the bulk of the equipment, including the basketball backboard and hoop.

Although the employees were free to leave the premises during lunch, at least one had to remain to answer the telephone and provide customer service as needed. However, the employees, including Stephenson, generally brought their lunch to work and ate on the premises.

In the strict sense of the decisions in Arizona, we do not treat this case as an “on the employer’s premises” problem. The holding establishing this rule in Arizona is a clear one:

“We hold that when an employee is going to or coming from his place of work and is on the employer's premises he is within the protective ambit of the Workmen’s Compensation Act, at least when using the customary means of ingress and egress or route of employee’s travel or is otherwise injured in a place he may reasonably be expected to be.” Pauley v. The Industrial Commission of Arizona, 109 Ariz. 298, 302, 508 P.2d 1160, 1164 (1973). (Emphasis added.)

Stephenson was not going to or coming from work. He was already at work, he intended to stay there, and as far as the record reflects, except for the technical property title issue, the recreation situs was used by the employer as of right. The situs of the injury was regularly used by the employer for business purposes as a site to store waste materials and for noontime recreational activities. We perceive the critical fact as being the nature of the activity involved and not the strictly fortuitous circumstance of Stephenson bending down to pick up the ball on that portion of the land not then owned by the employer.

In Pauley, supra, the Supreme Court cites with approval this statement from Royall v. The Industrial Commission of Arizona, 106 Ariz. 346, 476 P.2d 156 (1970) which, although involving another allied area, the “personal comfort” rule, and not involving any question of employer’s premises as such, is instructive of the underlying foundation for all of these doctrines:

“ ‘[T]he source of injury was sufficiently associated with the employment as to constitute a risk to which claimant was subjected in the course of her employment, and to which she would not have been subjected had she not been so employed.’ 106 Ariz. at 351, 476 P.2d at 161.” 109 Ariz. at 302, 508 P.2d at 1164 (1973).

See also; Nicholson v. Industrial Commission, 76 Ariz. 105, 259 P.2d 547 (1953); Goodyear Aircraft Corporation v. Gilbert, 65 Ariz. 379, 181 P.2d 624 (1947).

This Court, in a recent decision involving the death of a car salesman while driving a dragster supplied by his employer, upheld the Industrial Commission’s award of benefits to the widow. Truck Insurance Exchange v. The Industrial Commission of Arizona, 22 Ariz.App. 158, 524 P.2d 1331 (1974). Judge Jacobson discusses generally the requirement of “arising out of and in the course of employment”, including the time, place and circumstances questions relating to the “in the course of” portion, and the causal relationship between the employment and the injury relating to the “arising out of” portion of the test. In expanding the discussion of outside activities (in that case, as here, the activity was both recreational and personally enjoyable) the Court’s language is very helpful:

“What 'circumstances’ can cause activity to fall within the course of employment, although the activity is not generally activity for which the employee was employed, can best be ascertained by asking the following questions: Did the activity inure to the substantial benefit of the employer? [Citation omitted]. Was the activity engaged in with the permission or at the direction of the employer? [Citation omitted]. Did the employer knowingly furnish the instrumentalities by which the activity was to be carried • out? [Citation omitted]. Could the employee reasonably expect compensation or reimbursement for the activity engaged in? [Citation omitted], And, finally, was the activity primarily for the personal enjoyment of the employee? [Citation omitted],

“If the circumstances show that the answers to these questions reveal sufficient indicia of employment-related activity, generally the activity will be held to be within the course of the original employment.” [Citation omitted]. 22 Ariz.App. at 160, 524 P.2d at 1333 (1974). (Emphasis supplied.)

In view of the language contained in Pauley, Royall, and Truck Insurance Exchange, supra, it is apparent that in these situations not totally associated with the specific work the employee was hired to perform, whether the-' be matters of personal comfort, going to or coming from the work site, partly personal or partly employment-related, recreational, or otherwise, it is a matter of the totality of the circumstances as they impact upon the employment relationship which determines whether an injury is compensable as arising out of and occurring within the course of the employment. While the presence or absence of one factor may be the controlling issue in any given case, Pauley, supra, generally an analysis of all the circumstances will be required to come to the proper conclusion. Royall, supra; Truck Insurance Exchange, supra. See also, particularly as to factors in recreation cases: 1 Larson’s Workmen’s Compensation Law, § 22.

Applying this law to the facts before us, there are not only sufficient, but ample indicia of employment-related activity. While no specific employee was required to remain at the place of business during lunch, at least one had to be present for business purposes, i.e., customer service and telephone coverage. Providing recreational equipment and encouraging its use served several potential interests of the employer. It boosted morale and camaraderie among his employees; it may have influenced the reduced turnover rate as revealed in the testimony; and it certainly made the requirement that at least on employee remain on the premises for business purposes during lunch time less onerous and more easily enforced. While the activity was voluntarily entered into and involved personal enjoyment and satisfaction, we believe that an employee so engaged could reasonably understand himself to be about his employer’s business, albeit on an interruptible lunch break. Truck Insurance Exchange v. The Industrial Commission of Arizona, supra. Assuming, as we have done, that the exact location of the injury was not on premises owned by the employer, that factor alone is not absolutely controlling, as it was in Pauley, supra, since it was clearly the nature of the activity, i.e., the efforts involved in playing catch, rather than any inherent risk in the non-owned premises, i.e., the ditch in Pauley, which exposed Stephenson to this risk to which he would not have been subjected had he not been so employed. Royall v. The Industrial Commision of Arizona, supra.

A consideration of all the factors in this case leads us to the conclusion, as a matter of law, that the accident and its resulting injury arose out of and occurred in the course of Stephenson’s employment.

The award is set aside.

STEVENS, J., concurs.