Torres v. Industrial Commission

670 P.2d 423, 137 Ariz. 318, 1983 Ariz. App. LEXIS 536
CourtCourt of Appeals of Arizona
DecidedAugust 30, 1983
DocketNo. 1 CA-IC 2860
StatusPublished
Cited by5 cases

This text of 670 P.2d 423 (Torres v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Torres v. Industrial Commission, 670 P.2d 423, 137 Ariz. 318, 1983 Ariz. App. LEXIS 536 (Ark. Ct. App. 1983).

Opinion

OPINION

JACOBSON, Chief Judge.

The sole issue raised by this review of an award of the Industrial Commission for a noncompensable claim in five consolidated cases is whether five workers injured while going to work in their own transportation were nevertheless in the course and scope of their employment because they were excluded from transportation supplied by the employer.

The claimants in this case were all employed as farm workers by Bruce Church, Inc., and all resided in the area of San Luis, Arizona/Mexico. At the time pertinent here, the claimants were working at a location known as Gila Ranch, a distance of approximately 7 miles from San Luis. At the time of their accident, the claimants and their employer were operating under an expired collective bargaining agreement which all parties agree determines their contractual rights in this dispute. This agreement did not require the employer to furnish transportation to farm workers or to pay travel allowances unless the commute to the initial job site was over forty miles. We therefore reject claimants’ contentions that they were contractually entitled to employer supplied transportation for the commute from San Luis to Gila Farms, a distance of approximately 7 miles.

However, Bruce Church Farms had customarily provided free transportation to all its employees residing in the San Luis area [320]*320regardless of their ultimate job site destination. As to these claimants there was testimony that they were refused the right to use this customarily provided transportation because of their union activities on behalf of the Farm Workers’ Union. While the administrative law judge notes this testimony, which was contradicted by a representative of the employer, he failed to resolve whether in fact there was a refusal to use the company bus or if so the reasons for the refusal.

In any event, on March 7, Í981, the claimants while commuting from San Luis to the Gila Ranch job site in a car owned and driven by one of them, were injured when hit by another car. While all five claimants filed workers’ compensation claims, Jesus Flores, being uninjured in the accident withdrew his claim.

Both before the Commission and this court the claimants contend that the coming and going rule (which would preclude compensation) is inapplicable to trips to and from the work site in a company supplied conveyance and that although the claimants were injured in a private conveyance they are still within the “employer’s conveyance” exception to the coming and going rule because they were arbitrarily excluded from the customary company supplied bus transportation.

The administrative law judge resolved these issues by finding that under the union contract between the parties, the claimants were not entitled to travel allowances; that the “range of dangers” associated with the employer’s premises were not applicable under these facts; and that no exception to the “coming and going” rule applied in this case and therefore the accident occurring while the claimants were travelling to their work place was not an industrial responsibility.

The general “coming and going” rule is articulated in Butler v. Industrial Commission, 50 Ariz. 516, 73 P.2d 703 (1937):

It is of course the general rule in compensation cases, subject to a few exceptions, that a man does not enter an employment until he reaches the place where the work of his employer is to be carried on, and similarly, when he has finished all the work required by his duties and leaves the place of business of his employer to go to his own home, he has left the employment, and that an accident which may occur to him on his way to or from his work is not in the due course of his employment.

50 Ariz. at 521, 522, 73 P.2d at 705. However, as Butler points out, this rule is subject to exceptions. See 1 A. Larson, The Law of Workmen’s Compensation, §§ 15.-00-17.50 (1982). Each exception has its specific elements and distinct rationale. The elements and rationale of one must not be confused with those of another.

One exception applies to injuries on the employer’s premises. See Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973); 1 A. Larson, supra, at § 15.10. The rationale for this exception is that because the employee is on the employer’s premises, the course of employment includes these employment related risks even though the employee is going to or coming from work. See Pauley v. Industrial Commission, supra; 1 A. Larson, supra, at § 15.15.

The administrative law judge correctly determined that this exception was inapplicable to the present case. It does not follow, as the administrative law judge apparently concluded, that other exceptions depend on the nexus between the employer’s premises and the injury. They do not. For example, if the employer compensates the employee for the time spent traveling to and from work, the employer thereby impliedly agrees that the employment continues while the employee is going and coming. See Serrano v. Industrial Commission, 75 Ariz. 326, 256 P.2d 709 (1953); 1 A. Larson, supra, at § 16.20. Also, if the employer pays a travel allowance or supplies the employee with a vehicle, and if under the totality of the circumstances of the employment the travel to and from work is a substantial part of the service performed, [321]*321going and coming is within the course of employment. See Strauss v. Industrial Commission, 73 Ariz. 285, 240 P.2d 550 (1952); Fisher Contracting Co. v. Industrial Commission, 27 Ariz.App. 397, 555 P.2d 366 (1976); 1 A. Larson, supra, at § 16.30; but see Brooks v. Industrial Commission, 136 Ariz. 146, 664 P.2d 690 (App.1983).

The employer and carrier deny that an exception to the general rule applies simply because the employer pays a travel allowance or supplies a vehicle to the employee for transportation. This argument again confuses the elements and rationales of different exceptions to the general rule. One exception applies to travel allowances or vehicles supplied to an employee. Its rationale is that under the totality of circumstances the travel to and from work is a substantial part of the service performed. The travel allowance or vehicle is merely evidence of the importance of the travel as part of the service performed. See 1 A. Larson, supra, at § 17.10, at 4-187.

Again we agree that under the circumstances here, the administrative law judge correctly determined that this exception does not apply.

The claimants, however, contend that a separate exception applies to going and coming in a vehicle under the employer’s control. The distinct rationale for this rule is that by taking control of the trip to and from work, the employer has extended the risks of employment and therefore has extended the course of employment. Id., at 4-180, 14-187.

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670 P.2d 423, 137 Ariz. 318, 1983 Ariz. App. LEXIS 536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/torres-v-industrial-commission-arizctapp-1983.