Turner v. on target/work First ( 2021 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MICHAEL TURNER, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
ON TARGET STAFFING LLC, Respondent Employer,
WORK FIRST CASUALTY CO, Respondent Carrier.
No. 1 CA-IC 20-0025
FILED 7-15-2021
Special Action - Industrial Commission
ICA Claim No. 20182-890026
Carrier Claim No. 18836871-001
The Honorable Jeanne Steiner, Administrative Law Judge
AFFIRMED
COUNSEL
Jerome Gibson Stewart Stevenson Engle & Runbeck, P.C., Phoenix
By Joseph L. Coughlin
Counsel for Petitioner Employee
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Lundmark, Barberich, LaMont & Slavin, P.C., Phoenix
By R. Todd Lundmark
Counsel for Respondent Employer and Respondent Carrier
OPINION
Judge Maria Elena Cruz delivered the opinion of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.
C R U Z, Judge:
¶1 Michael Turner asks us to set aside an Industrial Commission
of Arizona (“ICA”) award finding his injury non-compensable. An
administrative law judge (“ALJ”) determined that Turner had not shown
that his injury, which occurred while he was on break at work, was causally
related to his employment. Because we agree that Turner’s injury was
caused by an accident that did not arise out of his employment, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 We consider the evidence in a light most favorable to
sustaining the award. Lovitch v. Indus. Comm’n, 202 Ariz. 102, 105, ¶ 16
(App. 2002). Turner worked in a call center that had a break room in which
employees stored food, ate lunch, and lounged during work breaks. One
night, as eighty-year-old Turner attempted to open a refrigerator in the
break room, he fell to the floor, landing on his left side. He suffered a
broken femur that required surgery and implantation of hardware. Turner
filed a claim for workers’ compensation, which was denied.
¶3 Turner challenged the denial, asserting that the refrigerator
door was to blame for his fall. He testified the door was stuck, and when
he pulled the door to open it, the refrigerator moved toward him, knocking
him over. He also testified that employees and management knew the
refrigerator door was hard to open. The ALJ heard testimony from other
witnesses, however, who denied that the refrigerator had ever been hard to
open or that any complaints had been made about it. Thus, the cause of
Turner’s fall became the central issue at the hearing.
¶4 The best evidence of why Turner fell was found on video.
Two surveillance recordings showed the break room contained two full-
size refrigerators placed side by side, a sink, coffee makers, a microwave,
2
TURNER v. ON TARGET/WORK FIRST
Opinion of the Court
and several small tables with chairs. Of note, one video taken before the
accident showed Turner walking with a slight limp as he approached the
refrigerator. Turner limped because of prior medical interventions to his
left knee, which has been replaced several times since 2006. His left leg is
slightly shorter than his right, causing a mildly altered gait. In the first
video, Turner opened the refrigerator door without difficulty.
¶5 The second video, taken later, captured the moment Turner
fell. It showed Turner about to open the door of the refrigerator, his right
foot forward as he reached for the handle with his right hand. Turner then
started to pivot his body toward the refrigerator, swinging around to make
room for the door to open. As Turner began his pivot, his left foot crossed
behind his right foot, where it caught on his right heel, causing him to lose
his balance. At first, Turner tried to break his fall by maintaining his grip
on the door handle. He was unable to do so, and almost immediately let go
of the handle, falling to the floor. Before he let go, the force of his weight
pulling on the door caused the refrigerator to slide toward him; it pivoted
on its back left corner and ended up several feet out of place.
¶6 The ALJ reviewed both videos and heard testimony from
Turner and other lay witnesses noted above. In addition, two doctors
testified that Turner’s injury was caused by his fall and that he had been at
risk for such a fall due to his age, altered gait, and medical history related
to his left knee. The ALJ rejected Turner’s version of how he fell, finding
that the evidence did not establish that “the fridge door [was] stuck when
[Turner] pulled on it to open it or that the fridge was on wheels, moved
forward, and knocked him to the floor.” She concluded that Turner had
failed to show “his risk of falling was in any way peculiar to or increased
by his employment.” After an administrative review in which the ALJ
affirmed her decision, Turner sought review by this court.
DISCUSSION
¶7 We will affirm an ICA award if it is reasonably supported by
the evidence. Lovitch, 202 Ariz. at 105, ¶ 16. We defer to the ALJ’s resolution
of conflicting evidence and affirm the ALJ’s findings if they are supported
by any reasonable theory of the evidence. Perry v. Indus. Comm’n, 112 Ariz.
397, 398-99 (1975).
¶8 To prevail on his claim, Turner needed to show that he
suffered an injury “by [1] accident [2] arising out of and [3] in the course of
his employment.” Ariz. Rev. Stat. (“A.R.S.”) § 23-1021; Ibarra v. Indus.
Comm’n, 245 Ariz. 171, 174, ¶ 14 (App. 2018). There is no question that
3
TURNER v. ON TARGET/WORK FIRST
Opinion of the Court
Turner’s fall was an accident. Furthermore, the parties agree that, under
the “personal comfort” doctrine, Turner was acting in the course of his
employment when he approached the refrigerator in the break room. See
Sacks v. Indus. Comm’n, 13 Ariz. App. 83, 84 (1970) (“employees who engage
in reasonable acts which minister to their personal comforts remain within
the course and scope of employment”). Thus, the issue is whether the
injury arose out of Turner’s employment. To prove that his injury arose out
of his employment, Turner must show a causal connection between the
employment and the injury. See id.
¶9 We defer to the ALJ’s factual findings, and the facts in the
record do not show a causal connection between Turner’s injury and his
employment. Turner fell not because the refrigerator door was stuck or
because of any other abnormality with the refrigerator. Instead, Turner
accidentally tripped himself as he reached to open the refrigerator door.
The refrigerator shifted in place not because of the force required to open
its door, but because after Turner lost his balance, he held on to the door in
a vain effort to avoid falling. Simply put, Turner fell because of his
weakened left knee and altered gait, conditions that had nothing to do with
his employment. The ALJ could not find any defect in the refrigerator,
break room, or any other aspects of the workplace that caused the injury,
and neither can we. To borrow language from Sacks, our workers’
compensation system addresses “risks of the employment or inherent in the
nature of the [e]mployment, and not . . . risks inherent in the physical
condition of the employee.” Id. As in Sacks, Turner’s risk of falling on his
left hip while trying to open the break room refrigerator was not “a risk in
any way peculiar to or increased by [Turner]’s employment.” See id.; see
also 1 Arthur Larson et al. Larson’s Workers’ Compensation Law § 9.01(4)(b)
(2020) (in an idiopathic fall case, “it is reasonable to require a showing of at
least some substantial employment contribution to the harm”).
¶10 Turner’s reliance on Goodyear Aircraft Corp. v. Indus. Comm’n,
62 Ariz. 398 (1945) is misplaced. In that case, a soda bottle exploded at the
worksite, injuring a security guard as he was putting it into a cooler to drink
during his lunch break. Id. at 400-01. Our supreme court held that the
injury was compensable because, as a security guard, the worker was
required to eat lunch on the premises. Id. at 415. Forty-five years later, the
court conceded that the Goodyear decision had confused the “in the course
of” component of the compensability formula with the “arising out of”
component:
[T]hese two tests have been confused. For example, in
Goodyear, we said the injury “arose out of” claimant’s
4
TURNER v. ON TARGET/WORK FIRST
Opinion of the Court
employment because “his employer’s business required him
to be at the place of the accident at the time it occurred.” This
analysis focused on the time and place of the accident which
is part of the “in the course of” employment analysis [not the
“arising out of” analysis].
Circle K Store No. 1131 v. Indus. Comm’n, 165 Ariz. 91, 94 (1990) (internal
citation omitted). In Goodyear, a defect in the bottle was the cause of the
explosion. 62 Ariz. at 401. The defect was a condition outside of the control
of either the worker or the employer. In those types of cases, the
responsibility to compensate for injury is usually placed on the employer
rather than on the worker. See 1 Larson’s Workers’ Compensation Law § 9.03(3)
(discussing the Goodyear decision). Thus, Goodyear does not support an
argument that an injury arises out of the employment solely because a
worker is injured while on break.
¶11 Instead, we find the facts in Sacks remarkably similar to those
here. There, a worker with “a pre-existing low back instability” suffered an
injury as she was arising from a toilet at her workplace. 13 Ariz. App. at
83-84. We noted that the mere fact that the accident occurred at work (i.e.,
that the accident occurred “within the course and scope of employment”)
was not enough to establish compensability. Id. at 84. Instead, we held a
claimant also must show that the injury arose out of the employment,
meaning proof of “a causal connection between the employment and the
injury.” Id. The claimant in Sacks could not make that showing because the
accident was not caused by the surroundings or conditions of the
workplace, but instead was caused by “a degenerative condition which
might have been brought to the acute stage by any one of a number of
everyday motions, at home or at work.” Id.
¶12 Larson’s treatise favorably discusses the Sacks decision:
The injury [to Sacks] was held to have occurred in the course
of [Sack]’s employment, pursuant to the personal comfort
doctrine, but the court denied compensation on grounds that
the injury did not arise out of the employment. Note that the
employment component was weak on both the “course” and
“arising” side. As to “course,” [Sacks] was engaged in a
personal comfort activity; as to “arising,” the real cause of
injury was progressive deterioration of a personal weakness,
with no real exertion or mishap related to the employment.
[Sacks] was sufficiently within the course of employment so
5
TURNER v. ON TARGET/WORK FIRST
Opinion of the Court
that, [if there were] some significant element of employment
causal connection, an award could stand.
3 Larson’s Workers’ Compensation Law § 29.01. We find the same analysis
applicable in this case. Therefore, the ALJ correctly concluded that Turner
failed to show that his injury was caused by or arose out of his employment
and correctly denied his application for compensation.
CONCLUSION
¶13 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
6