FILED BY CLERK MAY 10 2005 COURT OF APPEALS IN THE COURT OF APPEALS DIVISION TWO STATE OF ARIZONA DIVISION TWO
JAROSLAV HYPL, ) ) 2 CA-IC 2004-0018 Petitioner Employee, ) DEPARTMENT A ) v. ) OPINION ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) CPS, INC. FOR LEASED WORKERS ) TO COREXPRESS, ) ) Respondent Employer, ) ) STATE COMPENSATION FUND, ) ) Respondent Insurer. ) ) ) JAROSLAV HYPL, ) ) Petitioner Employee, ) ) v. ) ) THE INDUSTRIAL COMMISSION OF ) ARIZONA, ) ) Respondent, ) ) COREXPRESS, ) ) Respondent Employer, ) ) SPECIAL FUND DIVISION, NO ) INSURANCE SECTION, ) ) Respondent Party in Interest. ) )
SPECIAL ACTION - INDUSTRIAL COMMISSION
ICA Claim Nos. 20030-690035 and 20031-390630
Insurer No. 02-46949
Thomas A. Ireson, Administrative Law Judge
AWARD SET ASIDE
Rabinovitz & Associates, P.C. By Bernard I. Rabinovitz Tucson Attorneys for Petitioner Employee
The Industrial Commission of Arizona By Laura L. McGrory Phoenix Attorney for Respondent
State Compensation Fund By James F. Crane and Jeffrey L. Patten Tucson Attorneys for Respondents Employer CPS, Inc. and Insurer State Compensation Fund
Goering, Roberts, Rubin, Brogna, Enos & Hernandez, P.C. By Pamela Treadwell-Rubin and Tucson Laura M. Huntwork Attorneys for Respondent Employer Corexpress
Special Fund Division, No Insurance Section By Andrew Wade Phoenix Attorney for Respondent Party in Interest
2 H O W A R D, Presiding Judge.
¶1 In this statutory special action, petitioner/employee Jaroslav Hypl challenges
the administrative law judge’s (ALJ) decision concluding that Hypl had failed to show that
his injury occurred in the course of and arose out of his employment with Corexpress. The
ALJ made this determination based, in part, on his conclusion that Hypl was not entitled to
the benefit of a presumption. Because we conclude that Hypl may be entitled to a
presumption if he can show his injuries occurred during the time and space limitations of his
employment, we set aside the award.
¶2 The facts relevant to this special action are undisputed. On May 2, 2002, Hypl
accepted a job with Corexpress to transport several barrels of wire from Nogales, Arizona,
to El Paso, Texas, a distance of approximately 350 miles. Hypl began the trip at
approximately 6:00 p.m. that evening and was instructed to deliver the wire by 6:00 a.m. the
next morning. At 6:30 a.m., a half hour past the required delivery time, Hypl was arrested
on Interstate 10 near Deming, New Mexico, after a police officer witnessed him driving
erratically. At the time of his arrest, Hypl was traveling westbound, i.e., away from El Paso,
but had not yet delivered the wire to its destination.
¶3 Presuming Hypl was intoxicated, the officer took him to a police station for
booking. After closer examination, the officer realized Hypl was injured and sought medical
attention for him. Hypl was taken to a nearby hospital where physicians determined that he
3 had a skull fracture on the top of his head, blood clots in the frontal and temporal lobes of
his brain, and blood in the surface of his brain. He was transported by helicopter to
University Medical Center in Tucson, Arizona, for emergency surgery and remained in a
coma for over eight hours after the surgery.
¶4 Hypl filed a claim for workers’ compensation benefits, which was denied.
Hypl requested a hearing and testified at the hearing that he had no memory of the events
that had caused his injury. Although he remembered loading the wire onto the truck in
Nogales and driving toward Interstate 10, he recalled nothing else until he awoke from the
coma after his surgery. The ALJ determined that Hypl had not met his burden of proving
the injury had occurred within the course and scope of his employment. The ALJ further
concluded that the “unexplained death presumption” had not been extended in Arizona to
an applicant who was alive and declined to extend it in this case. Ultimately, the ALJ found
the injury noncompensable. The award was affirmed upon administrative review, and this
statutory special action followed.
¶5 Hypl argues on review that the ALJ’s award is not reasonably supported by
the evidence, claiming he was entitled to a presumption that the injury occurred within the
course and scope of his employment. On review of an award, we deferentially review an
ALJ’s factual findings reasonably supported by the record but review the ALJ’s legal
conclusions de novo. PFS v. Indus. Comm’n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App.
1997).
4 ¶6 A compensable injury must both arise out of and occur in the course of
employment. A.R.S. § 23-1021(A). The “arising out of” requirement refers to the origin or
cause of the injury and is met when the claimant shows a causal relationship between the
employment and the injury. See Murphy v. Indus. Comm’n, 160 Ariz. 482, 485, 774 P.2d
221, 224 (1989). The “in the course of” requirement is satisfied if the claimant shows the
injury occurred during the time, place, and circumstances of the claimant’s employment.
Montgomery v. Indus. Comm’n, 173 Ariz. 106, 108, 840 P.2d 282, 284 (App. 1992). As
the claimant, Hypl had the burden of establishing both of these elements. See Stephens v.
Indus. Comm’n, 114 Ariz. 92, 94, 559 P.2d 212, 214 (App. 1977); see also Samaritan
Health Servs. v. Indus. Comm’n, 170 Ariz. 287, 289, 823 P.2d 1295, 1297 (App. 1991)
(“arising out of” and “in the course of” are separate tests that must both be satisfied). It is
not the employer’s burden to disprove the statutory requirements. Lawler v. Indus.
Comm’n, 24 Ariz. App. 282, 284, 537 P.2d 1340, 1342 (1975).
¶7 The unexplained death presumption, however, can shift the burden of
producing evidence. See Martin v. Indus. Comm’n, 73 Ariz. 401, 404, 242 P.2d 286, 288
(1952); see also Helton v. Indus. Comm’n, 85 Ariz. 276, 278-79, 336 P.2d 852, 853 (1959)
(adopting “Thayerian rule” concerning presumptions). But the exact factual predicate for
and the effect of the unexplained death presumption have not always been clearly stated.
In Martin, the issue was whether a ranch foreman, who had died in a car accident after
leaving a bar while taking care of either business or personal concerns, was covered by
5 workers’ compensation. In that case, our supreme court adopted the unexplained death
presumption without so labeling it, saying:
“It is generally held that when it is shown that an employee was found dead at a place where his duties required him to be, or where he might properly have been in the performance of his duties during the hours of his work, in the absence of evidence that he was not engaged in his master’s business, there is a presumption that the accident arose out of and in the course of the employment within the meaning of the compensation acts.”
73 Ariz. at 404, 242 P.2d at 288 (emphasis deleted), quoting 120 A.L.R. 683. Thus,
Arizona’s first supreme court case on this issue indicated that the presumption could apply
to both the “arising out of” and “in the course of” requirements, after a claimant has shown
that he or she meets the place and time restrictions of the employment. After finding the
claimant had produced sufficient facts to raise the presumption, the court set aside the award
denying Martin’s survivors death benefits. Id. at 405, 242 P.2d at 289.
¶8 The following year, in an unrelated case that coincidentally involved the same
name, our supreme court considered the issue again in Martin v. Industrial Commission,
75 Ariz. 403, 257 P.2d 596 (1953). There, a worker died of carbon monoxide poisoning
after business hours while in a company truck on the employer’s premises; it was unclear
why the employee was there. The court stated the sole question was whether the employee
had been in the course of his employment because, if so, the poisoning would clearly arise
from his employment. The court cited Arthur Larson, The Law of Workman’s
6 Compensation (1989) as the “correct statement of the law” concerning the death
presumption:
“When an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death most courts will indulge a presumption or inference that the death arose out of the employment.”
Martin, 75 Ariz. at 411, 257 P.2d at 601, quoting 1 Larson, supra, § 10.32, at 3-101.
Therefore, the second supreme court case, which concerned only the in the course of
employment requirement, stated that the death presumption applies to the “arising out of”
requirement after the claimant demonstrates that the time and space requirements are met.
In that case, however, the court found that the presumption did not apply because sufficient
facts concerning the cause of death were known and the commission was entitled to infer
from the facts that the claimant had not yet entered into the course of his employment.
Martin, 75 Ariz. at 411, 257 P.2d at 601.
¶9 In Downes v. Industrial Commission, 113 Ariz. 90, 546 P.2d 826 (1976), an
employee was killed when the company vehicle he was driving was run over by a 150-ton
ore truck. Because the cause of the injury was apparent, the supreme court only needed to
decide whether the employee had been within the course of his employment at the time of
the accident. Without mentioning the term “death presumption,” but citing the first Martin
case, our supreme court found that certain presumptions applied to the course of
employment requirement:
7 There is a presumption that if an employee is injured while on company property during working hours, he is injured while within the scope and course of his employment . . . .
....
There is a further presumption that when a workm[a]n is killed on the job he was, at the time of the fatal accident, within the scope and course of his employment . . . .
Downes, 113 Ariz. at 92-93, 546 P.2d at 828-29. The court determined that the employee’s
heirs had raised a rebuttable presumption that he had died in the course of his employment
and set aside the award denying them death benefits. Id. at 94, 546 P.2d at 830.
¶10 In Bennett v. Industrial Commission, 163 Ariz. 534, 536, 789 P.2d 401, 403
(App. 1990), Division One of this court stated that the presumption may apply to both the
course of employment and the arising out of employment requirements: “The unexplained
death presumption relaxes a claimant’s ordinary burden to prove that death or injury arose
out of and in the course of employment.” The Bennett court then stated that the
“presumption arises when a worker’s unexplained death occurs within the time and space
limits of employment” and quoted Larson’s statement that the presumption applies to the
arising out of requirement. Id. The court followed this analysis by quoting another passage
from Larson that discussed applying the unexplained death presumption when a claimant
satisfies the in the course of employment requirement:
“The occurrence of the death within the course [i.e., the time and space limits] of employment at least indicates that the employment brought deceased within range of the harm, and the cause of harm, being unknown, is neutral and not personal. The
8 practical justification lies in the realization that, when the death itself has removed the only possible witness who could prove causal connection, fairness to the dependents suggests some softening of the rule requiring claimant to provide affirmative proof of each requisite element of compensability.”
Id. at 536, 789 P.2d at 403, quoting 1 Larson, supra, § 10.32, at 3-101 to 3-110.
¶11 Finally, in Konichek v. Industrial Commission, 167 Ariz. 296, 806 P.2d 885
(App. 1990), this court did not distinguish between the in the course of employment and the
arising out of employment requirements:
The presumption operates to relax a claimant’s burden to prove that death occurred in the course of employment. Larson explains the rule as follows:
“When an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, most courts will indulge a presumption or inference that the death arose out of the employment.”
Id. at 298, 806 P.2d at 887 (emphasis added), quoting 1 Larson, supra, § 10.32, at 3-100.
¶12 Larson has recognized the difficulty that occurs when doubt exists on whether
the employee was in the course of employment at the time of death. After stating that the
death presumption applies to the arising out of requirement in the absence of proof of a
cause of death, Larson acknowledges that applying the presumption to that requirement
“becomes less clear when there is some room for doubt whether the injury even took place
in the course of employment.” 1 Arthur Larson & Lex K. Larson, Larson’s Workers’
9 Compensation Law § 7.04(2)(c), at 7-29 (2004). Larson further states: “When . . . the
evidence leaves a wide area of uncertainty about the decedent’s movements between the last
time he or she was seen and the discovery of his or her death, denials have been issued
because of the failure to bring the episode within the course of employment in the first
place.” Larson & Larson, supra, § 7.04(2)(c), at 7-30. Larson then cites cases in which
sufficient connection to employment has been found and cases in which such a connection
has not been found. In each case, at least circumstantial evidence of relation to the course
of employment was required in order to invoke the presumption. Larson & Larson, supra,
§ 7.04(2)(c), at 7-30 to 7-35.
¶13 Based on the case law, we conclude that the unexplained death presumption
softens both the in the course of employment element and the arising out of employment
element. Therefore, in the absence of any contrary evidence, if a claimant proves by a
preponderance of the evidence that the decedent was within the time and space limitations
of employment when injured, we presume that the injury occurred in the course of
employment, i.e., the employee was injured while doing the employer’s work and not while
on a personal deviation, and that the unexplained injury arose out of the employment.
¶14 In this case, the ALJ correctly noted that the death presumption has never been
applied in Arizona to a living claimant. But this presumption developed out of fairness to
claimants “when the death itself has removed the only possible witness who could prove
causal connection.” Larson & Larson, supra, § 7.04(2), at 7-22. Hypl’s injury has left him
10 unable to remember anything about how he was injured and, thus, has effectively removed
the only possible witness who could prove his injury was causally related to his
employment. We must therefore determine whether the unexplained death presumption, or
a similar type of presumption, should apply in the case of a living claimant who, by reason
of the injury, is unable to testify about how he or she was injured.
¶15 First, we note that, in Downes, the supreme court stated: “There is a
presumption that if an employee is injured while on company property during working
hours, he is injured while within the scope and course of his employment.” 113 Ariz. at 92,
546 P.2d at 828. But, because the employee there had died at the place of his employment,
this statement was merely dictum. Also, the court did not limit its statement to cases in
which the circumstances or cause of injury was unknown due to the death or injury.
Furthermore, in support of this statement, the court cited Royall v. Industrial Commission,
106 Ariz. 346, 476 P.2d 156 (1970), a case in which an employee taking a lunch break in
the employee lounge tripped over a co-employee while on her way to make a personal call.
In Royall, both the circumstances and the cause of the injury were known, and the court
found a sufficient connection to the employment without relying on a presumption. In fact,
the Royall court stated: “There is no ‘rule of thumb’ that an injury is compensable merely
because it was incurred during working hours or because it occurred within the linear
measurements of the employer’s premises.” Id. at 349, 476 P.2d at 159. Therefore, we
conclude that Downes did not extend the death presumption to living claimants.
11 ¶16 Although this issue is one of first impression in Arizona, other states have
considered similar issues with differing results. One state has applied this presumption in
cases comparable to the present one in which the claimant is comatose or otherwise unable
to explain the injury. See Sena v. Cont’l Cas. Co., 643 P.2d 622 (N.M. Ct. App. 1982).
And several states have extended this presumption to an employee who became ill or
comatose at the place of employment but died at a hospital several days later. See Gen.
Accident Fire & Life Ins. Co. v. Sturgis, 221 S.E.2d 51 (Ga. Ct. App. 1975); Nettles v. Gulf
City Fisheries, Inc., 629 So. 2d 554 (Miss. 1993). But other states have rejected applying
the unexplained death presumption to a living claimant as an unwarranted extension of the
doctrine. See, e.g., Salyers v. G. & P. Coal Co., 467 S.W.2d 115 (Ky. Ct. App. 1971); see
also A.H. Angerstein, Inc. v. Jankowski, 187 A.2d 81, 85 n.8 (Del. Super. Ct. 1962)
(“[O]ur statute does not permit the adoption and utilization of the ‘[unexplained death]
presumption’ . . . . It cannot be reconciled with our decided cases . . . .”); Pinkerton’s, Inc.
v. Helmes, 410 S.E.2d 646, 648 (Va. 1991) (“Broadening the use of the [unexplained death]
presumption to such an extent [would] significantly alter[ ] the jurisprudence of workers’
compensation law.”).
¶17 Larson suggests that the same rationale that supports the death presumption
would support applying a similar presumption to an injured employee who is unable to
relate the circumstances of the injury. Larson notes: “[I]t could be argued that, when the
claimants’ inability to tell the story is destroyed, not by death, but by its (for this purpose)
12 equivalent in the form of total unconsciousness or inability to communicate, the same
presumption should be indulged.” Larson & Larson, supra, § 7.04(2), at 7-22.
¶18 In considering this issue, we note that Arizona cases have taken an expansive
view of the in the course of employment and arising out of employment requirements in
order to effectuate the workers’ compensation policy of construing the statutes liberally to
the employee’s benefit. In Peterson v. Industrial Commission, 16 Ariz. App. 41, 490 P.2d
870 (1971), a traveling employee spent several hours drinking, conversing, and playing pool
before retiring for the evening in a nearby rooming house. He then suffocated to death after
his head became stuck in the slats of the headboard as he slept. The Peterson court stated
that an injury occurs in the course of employment “if the employee is injured while he is
doing what a man so employed may reasonably do within a time during which he is
employed and at a place where he may reasonably be during that time.” Id. at 44, 490 P.2d
at 873. The court held that the claim was compensable because “a reasonable period of
sleep is necessarily incidental to the work of a traveling employee required to take overnight
lodging away from his home.” Id.
¶19 In Special Fund v. Catalina Trucking Co., 134 Ariz. 585, 658 P.2d 238 (App.
1982), the court held that an employee who was severely injured when he interrupted an
armed robbery at a service station was covered by the “street risk” doctrine. Furthermore,
in Circle K Store No. 1131 v. Industrial Commission, 165 Ariz. 91, 796 P.2d 893 (1990),
the supreme court held that an unexplained injury occurring within the scope of employment
13 is presumptively compensable. In Circle K, the claimant fell for an unexplained reason
while throwing out store trash in Circle K’s dumpster on her way home. After determining
that an unexplained fall is a neutral injury, our supreme court held that, “in the case of a
neutral injury, the positional-risk doctrine applies.” Id. at 96, 796 P.2d at 898. Under the
positional risk doctrine, a court presumes that an injury arose out of the employment “‘if it
would not have occurred but for the fact that the conditions and obligations of the
employment placed claimant in the position where he was injured.’” Id., quoting 1 Arthur
Larson, The Law of Workman’s Compensation § 6.50, at 3-6 to 3-7 (1989).
¶20 In order to effectuate the principle that the workers’ compensation statutes
shall be liberally construed in favor of payment of compensation benefits, see Bennett, 163
Ariz. at 536, 789 P.2d at 403, we conclude that a presumption similar to the unexplained
death presumption should apply to an injury to a living worker who, due to the injury, is
unable to testify about how the injury happened. Thus, an injured worker who proves by
a preponderance of the evidence that he or she is unable to remember or to communicate the
circumstances and cause of an injury due to the injury and who proves by a preponderance
of the evidence that the injury occurred during the time and space limitations of the
employment is presumed to have been injured while doing the employer’s work, i.e., in the
course of the employment, and the injury is presumed to have arisen from the employment
in the absence of evidence that the worker was not within the course of the employment or
that the injury did not arise from the employment.
14 ¶21 In this case, the ALJ found that Hypl has no memory of the cause of or the
events leading to his injury. And neither the employer nor the insurer disputed below that
Hypl had suffered amnesia as a result of the injury and cannot remember the events.
Therefore, if Hypl can provide a sufficient factual basis to allow an inference that he was
injured in the time and space limitations of his employment, he is entitled to a presumption
that his injury occurred in the course of and arose out of his employment.
¶22 The ALJ found that “the preponderance of the evidence presented does not
establish [Hypl] was in the course and scope of his employment or that the ‘injury’ arose out
of the employment.” But the ALJ then stated: “There[fore], [Hypl] has not met his burden
and the claim must be found non-compensable unless there is a presumption in favor of
[Hypl] in view of his lack of memory that would soften the requirement of affirmative proof
of an injury arising out of and in the course and scope of his employment.” We have now
adopted that presumption. And, although the ALJ made findings of fact that could indicate
he found Hypl had failed to satisfy the time and space limitations necessary to invoke the
presumption, neither the exact requirements to invoke the presumption nor the presumption
had been defined previously. Accordingly, we cannot say that the ALJ had them in mind
when making his findings. Therefore, we set aside the award.
____________________________________ JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
15 ____________________________________ J. WILLIAM BRAMMER, JR., Judge
____________________________________ PETER J. ECKERSTROM, Judge