Brooks v. INDUS. COM'N OF ARIZONA

664 P.2d 690, 136 Ariz. 146, 1983 Ariz. App. LEXIS 424

• Court: Court of Appeals of Arizona
• Decided: February 24, 1983
• Docket: 1 CA-IC 2447
• Status: Published

Opinions

OPINION

EUBANK, Judge.

The issue presented in this special action review of an award of the Industrial Commission denying compensability, is whether the administrative law judge correctly denied the peitioners’ claims for workmen’s compensation benefits on the basis of the “going and coming” rule. In view of the totality of the facts and the law applicable to them, we are of the opinion that the award denying petitioners’ claims for benefits is correct. We therefore affirm the award.

The petitioners are surviving workers, or dependents of deceased workers, who were involved in a traffic accident which occurred while the workers were traveling from their homes to their jobs at Palo Verde Nuclear Generating Station. The nuclear plant is being constructed in a relatively undeveloped area some 50 miles west of downtown Phoenix. The prime contractor, respondent employer Bechtel Power Corporation, required the services of skilled workers in the construction of the plant. Bechtel entered into negotiations with the appropriate trade unions, which insisted that provision be made regarding the extensive travel which would be required of their members. Each craft union had previously negotiated separate travel provisions for construction work with employers throughout the state. After extensive negotiation, the bargainers reached a compromise providing that “[i]n lieu of all existing travel or future travel and subsistence payment considerations, the Employees) agrees to pay each employee Six Dollars ($6.00) per day worked.” This was paid to all workers for each day’s work, regardless of actual mileage or other cost.

At approximately 5:45 a.m. on July 10, 1978, a two-vehicle collision occurred at the intersection of Cotton Lane and West McDowell Road in Maricopa County involving the petitioners or their deceased, who were all employees of Bechtel going to work at the plant. Following the accident, the surviving injured workers and the dependents of the deceased workers timely filed claims for workmen’s compensation benefits. The respondent carrier, Industrial Indemnity Company, issued notices of claim status denying all of the claims on the basis that the accident neither arose out of nor occurred in the course of employment. All of the petitioners filed requests for hearings and the cases were consolidated for hearing. The administrative law judge entered a consolidated decision upon hearing and findings and award for noncompensable claims. The administrative law judge affirmed his decision on review, and this appeal followed.

As a general rule, accidents occurring when an employee is going to or coming from work do not arise out of or occur in the course of employment. Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973); Butler v. Industrial Commission, 50 Ariz. 516, 73 P.2d 703 (1937); Knoop v. Industrial Commission, 121 Ariz. 293, 589 P.2d 1325 (App.1979); 1 Larson, Larson’s Workmen’s Compensation Law, § 15 (1978) [hereinafter referred to as 1 Larson]. On appeal petitioners argue that the accident falls into several exceptions to the “going and coming” rule.

The first of these claimed exceptions is the travel time exception. In such cases the employer pays the employee for the time consumed in going and coming to his employment. Serrano v. Industrial Commission, 75 Ariz. 326, 256 P.2d 709 (1953); Strauss v. Industrial Commission, 73 Ariz. 285, 240 P.2d 550 (1952); 1 Larson, supra, § 16.20. We have said regarding this exception, “Certainly when the employer pays for the time involved, the inference should be conclusive that the travel is included within the course of employment.” Fisher Contracting Company v. Industrial Commission, 27 Ariz.App. 397, 399-400, 555 P.2d 366, 368-69 (1976).

The second exception is related to the travel time exception and may be termed the substantial benefits exception. In these cases the employer furnishes transportation or expenses, in lieu thereof, to its employees, and it appears from the facts that the travel time benefits the employer. J.D. Dutton, Inc. v. Industrial Commission, 120 Ariz. 199, 584 P.2d 1190 (App.1978); Fisher Contracting Company v. Industrial Commission, supra; see 1 Larson, supra, § 16.30.

The third exception is known as the special hazards exception. Kerr v. Industrial Commission, 23 Ariz.App. 106, 530 P.2d 1139 (1975); 1 Larson, supra, § 15.13. Although this exception has not been adopted in Arizona, it has been raised unsuccessfully in at least one Arizona case. See Kerr v. Industrial Commission, supra. This exception imposes workmen’s compensation liability upon employers for injuries which occur from travel on the only or, at least, the normal route from the employee’s home to the employer’s premises, where “special hazards of that route become the hazards of the employment.” 1 Larson, supra, § 15.13, pp. 4-18.

Turning to the first exception, petitioners vigorously contend that the $6.00 per day “in lieu” figure represents payment for time expended in travel. The administrative law judge, however, found that the $6.00 figure represented only reimbursement for the expenses of - traveling and not payment for travel time. This finding is fully supported by a summarization of the evidence in findings of fact 18 through 25 of the award.

It is well established that in workmen’s compensation proceedings the Industrial Commission sits as the trier of fact. Malinski v. Industrial Commission, 103 Ariz. 213, 439 P.2d 485 (1968); DuHamell v. Industrial Commission, 20 Ariz.App. 63, 510 P.2d 62 (1973). As the trier of fact, it is for the Commission to draw inferences from the evidence, and where several inferences may be drawn, the drawing of the inference is exclusively the province of the Commission. See Harrington v. Industrial Commission, 84 Ariz. 356, 328 P.2d 311 (1958). Determining whether the $6.00 per diem was to reimburse travel expenses or to pay for travel time is a fact question for the Commission to resolve, and the conclusions drawn will not be set aside unless there is no reasonable basis for the determination. Kerr v. Industrial Commission, supra. Having reviewed the record, it is our opinion that there is substantial evidence to support the Commission’s finding.

Petitioners argue, however, that Serrano v. Industrial Commission, 75 Ariz. 326, 256 P.2d 709 (1953), requires that the award be set aside because factually the instant case and Serrano are the same. We disagree. In Serrano our supreme court set aside the award of the commission which denied compensation to an employee who was injured while driving home to Kingman from work at Davis Dam. The court noted that the employer had contracted “[t]o pay to each employee, as an allowance for travel and subsistence expense, and in lieu of any other provision for travel or subsistence, ... an amount equal to one hour’s pay at such employees’ straight time rate for each day worked by such employee, ...” 75 Ariz. at 328, 256 P.2d at 710; that the reason for this extra pay was that “[t]he job was not set up with housing, board or lodging”; and that Kobe v. Industrial Accident Commission, 35 Cal.2d 33, 215 P.2d 736 (1950) stated the “well established exception” to the going and coming rule that the employer “may agree, either expressly or impliedly, that the relationship shall continue during the period of ‘going and coming’, in which case the employee is entitled to protection of the act during that period.” 35 Cal.2d at 35, 215 P.2d at 35, 215 P.2d at 737. Kobe was also cited for the basis of establishing an inferred agreement as follows:

Such an agreement may be inferred from the fact that the employer furnishes transportation to and from work as an incident of the employment. (Citations omitted). It seems equally clear that such an agreement may also be inferred from the fact that the employer compensates the employee for the time consumed in traveling to and from work.

Id. at 35, 215 P.2d at 737.

Based on the facts established by the award, the supreme court in Serrano found, as a matter of law, that an inferred agreement existed whereby the employer agreed to compensate the injured employee in “going” to his home in Kingman after work. The court said:

It will be observed that the order of the Construction Industry Stabilization Commission did not fix one hour as a definite limit of time to go to and from work so that the injury must have occurred within any nine-hour period. What the board actually did was to fix an amount of travel pay ‘equal to one hour’s pay’ at such employee's straight time rate for each day worked by such employee. That amount was as much a part of his daily wage as the $1.77 he received per hour while actually working on the job. (Emphasis added).

75 Ariz. at 331, 256 P.2d at 711-12. The opinion’s ratio decidendi was that since the accident occurred within a nine-hour period, for which the injured employee received wages for working, and since his injury occurred during that nine-hour period, his injury arose out of and in the course of his employment by virtue of the implied agreement ¹ and within the exception of the going and coming rule.

Serrano was decided as a matter of law. The case sub judice involves a question of fact. In Kerr v. Industrial Commission, supra, the injured employee was paid $7.00 per diem or $35.00 per week for “motel, food, and travel expenses,” and he was paid this amount regardless of expense or distance traveled. We said:

Mr. Kerr urges that a per diem payment to him evidences the fact that the travel to and from his permanent residence was considered to be part of his employment. Payment of a per diem allowance for travel may evidence an intention to include travel time as part of the course of employment. Serrano v. Industrial Commission, 75 Ariz. 326, 256 P.2d 709 (1953); 1 Larson, § 16.09 at 4-86. However, determining whether the per diem was a subsidy for travel or merely a different form of compensation is a fact question for the Commission to resolve and the conclusions drawn will not be set aside unless there is no reasonable basis for the determination. Valerio v. Industrial Commission, 85 Ariz. 189, 334 P.2d 768 (1959); Sloan v. Industrial Commission, 14 Ariz.App. 354, 483 P.2d 586 (1971).

23 Ariz.App. at 108, 530 P.2d at 1141. In Kerr we affirmed the award denying compensation, stating:

We are of the opinion that reasonable evidence existed for the hearing officer to conclude that the employer did not provide travel expenses for going to or from the jobside and that Mr. Kerr’s journey home was not a part of his service in the course of his employment.

23 Ariz.App. at 109, 530 P.2d at 1142.

The per diem payment in Kerr is very similar to the “in lieu” payment in the instant case. Neither payment involves the extra hours pay relied on by the supreme court in Serrano as the element on which they inferred an agreement by law. Thus, the issue here as in Kerr is one of fact. As noted above, the finding that petitioners were paid expense reimbursement is substantially supported by the record.²

The finding that the Bechtel employees were paid “travel expense reimbursement” rather than “travel time” shifts the analysis away from a conclusive inference of employer liability to one of examining the “total employment picture” in this case. Fisher Contracting Company v. Industrial Commission, supra. Claimed exceptions to “going and coming” rule cases must be reviewed on a case-by-case determination of each particular fact situation. Strauss v. Industrial Commission, supra.

Examining the total employment picture, we turn to petitioners’ next argument, relating to benefits inuring to Bechtel for its furnishing of travel expense reimbursement to its employees. Without question, Bechtel received some benefit from the travel allowance agreement. Petitioners point out that respondents entered into the agreement primarily to obtain qualified union workers who would be required to travel long distances from their homes in north Phoenix to the job site in order to work at their trade. Bechtel also benefited by avoiding the need to furnish housing to employees at or near the job site. These “benefits” are supported by the record and are uncontroverted by the respondents. The real question, however, is whether these “benefits” are legally sufficient to satisfy the substantial benefits exception to the going and coming rule. We agree with the administrative law judge’s determination that they are not.

In Arizona, the substantial benefits exception to the going and coming rule has been approved within narrow parameters. First, our courts have recognized the substantial benefit exception only in cases where the employer furnished transportation to its employees or supervisory personnel. See J.D. Dutton, Inc. v. Industrial Commission, supra; Fisher Contracting Company v. Industrial Commission, supra; Strauss v. Industrial Commission, supra. In Fisher the furnishing of a pickup truck to the employee, coupled with evidence that he was required to use the truck for going and coming travel was considered significant in the total employment picture. There we concluded, in part, that “the travel itself was a substantial part of the service which the deceased, as a permanent salaried employee, was performing for his employer, and for which he was being compensated through the furnishing of the pick-up and related expenses.” 27 Ariz.App. at 400, 555 P.2d at 369. Second, distance alone is not the determinative fact. Kerr v. Industrial Commission, infra.

Turning to the case at hand, the administrative law judge found that even if the respondent had furnished transportation to its employees, the benefits accruing to Bechtel must be for some particular benefit, such as where the employee is required to work extra hours, or where he is on twenty-four hour call. See Strauss v. Industrial Commission, supra. The record establishes that neither Bechtel nor the unions desired overtime work at the job site. The mere fact that the $6.00 per diem rate was a bargained for benefit to respondents, therefore, does not invoke a recognized exception to the going and coming rule.³ The record in fact establishes that the $6.00 in lieu payment was a flat rate, paid to each employee covered by the agreement regardless of the distance or the cost of an employee traveling to and from the job.

Petitioners’ final contention that the special hazard exception is applicable is unsupported by the record. As we noted earlier, the special hazard exception has never been adopted as law in Arizona. However, we considered it in Kerr v. Industrial Commission, 23 Ariz.App. 106, 530 P.2d 1139 (1975), where we rejected the argument to include a 400-mile trip between the employee’s permanent residence and the remote job site on the basis of the special hazard exception. The decision was based on two grounds. First, we held that distance alone is not a basis for an exception to the going and coming rule. Second, we determined that “the hazards, if any, which he [the employee] would encounter in traveling from his home to the work site are not distinguishable from those ‘risks [which] are shared with members of the general public.’ ” Id. at 108, 530 P.2d at 1141, citing, Rencehausen v. Western Greyhound Lines, 8 Ariz.App. 184, 186, 444 P.2d 741, 743 (1968).

The record sub judice establishes multiple routes from metropolitan Phoenix to the Palo Verde job site. Although the record shows that a “funneling” effect did occur as traffic approached the plant during peak periods of shift changes, the administrative law judge found that the accident did not occur in the funneling area, and that, therefore, the risks incurred by petitioners and their decedents were no greater than those incurred by the general public during a “rush hour.” The record supports this conclusion.

It is our opinion that the administrative law judge’s findings that the workers’ deaths and injuries were not compensible because of the “going and coming” rule is supported in the law and by the record.

The award is affirmed.

HAIRE, J., concurs.

1 . See Ebasco Services v. Bajbek, 79 Ariz. 89, 284 P.2d 459 (1955), where the same judges split three to two on whether the employer and union could contract that such payments for employee travel were not covered by workmen’s compensation. The majority held that they could so contract.

2 . Although not directly applicable to workmen’s compensation law, tort cases parallel these cases. See State v. Superior Court, In & For County of Maricopa, 111 Ariz. 130, 524 P.2d 951 (1974); Robarge v. Bechtel Power Corp., 131 Ariz. 280, 640 P.2d 211 (App.1982).

3 . We recognize the existence of a number of cases from outside this jurisdiction which have applied a much broader benefits rule than the one to which we adhere. See 1 Larson’s, supra, § 16.30. Employer liability has been extended in cases where the subject of transportation was “singled out for special consideration,” particularly where the transportation expense reimbursement was held out as an inducement to accept employment. Id. at 4-160 to 4-173. However, even this expansive language has been subjected to factual limitations. Noteworthy is the New Jersey Supreme Court decision in Ricciardi v. Aniero Concrete Co. Inc., 64 N.J. 60, 312 A.2d 139 (1973) which found that “all or substantially all” of the employee’s commuting expenses must be provided by the employer in order for the trip to be considered a part of the employment. The Virginia Supreme Court addressed a related issue in GATX Tank Erection Co. v. Gnewuch, 221 Va. 600, 272 S.E.2d 200 (Va.1980), wherein the employer paid its employees $6.00 per day to encourage “operating engineers to accept the inconvenience of going to distant job sites.” Id. 272 S.E.2d at 202. Since the amounts paid did not reflect the actual expense of commuting to the job site, the court refused to allow an exception to the going and coming rule.

Petitioners also cite a line of Montana cases illustrated by the latest Gordon v. H.C. Smith Construction Co., 612 P.2d 668 (Mont.1980), which rely on 1 Larson, § 16.30, where distance alone is determinative. Petitioner cites a number of cases in the reply brief illustrated by Westinghouse Electric Corp. v. Department of Labor and Industries, 25 Wash.App. 103, 604 P.2d 1334, affirmed, 94 Wash.2d 875, 621 P.2d 147 (1980) which treat the issue as one of law instead of fact. On the basis of our analysis of Serrano, supra, we reject those cases.