Walls v. INDUSTRIAL COM'N OF UTAH

857 P.2d 964, 218 Utah Adv. Rep. 38, 1993 Utah App. LEXIS 123, 1993 WL 286657

• Court: Court of Appeals of Utah
• Decided: July 29, 1993
• Docket: 920499-CA
• Status: Published

Opinions

RUSSON, Associate Presiding Judge:

Jacqui C. Walls appeals a final order of the Industrial Commission of Utah denying her workers’ compensation benefits under Utah Code Ann. § 35-1-45 (1988). We affirm.

FACTS

On December 29, 1989, Walls was employed as a bartender at Uncle Barts, an Ogden bar. Following her daytime shift, which ended at 5:00, she remained at the bar to socialize, shoot pool and drink beer. Sometime between 10:30 p.m. and 11:00 p.m., approximately six hours after her shift had ended, Walls became aware that a keg of beer was empty. Without being asked to do so, Walls went into the back room to prepare another keg to be tapped. As she opened the door to the refrigerator where the kegs were stored, a keg slid out and crushed her foot.

Seeking compensation for her sustained injuries, Walls filed an application for a hearing before an administrative law judge (AU) of the Industrial Commission of Utah on March 27, 1990. Following the hearing, the AU denied Walls’s claim, holding that her injury did not “arise out of and in the course of” her employment, as to meet the requirements of Utah Code Ann. § 35-1-45 (1988). Walls thereafter filed a request for review by the Industrial Commission, which request was denied.

The sole issue presented for review is whether the Industrial Commission properly denied Walls workers’ compensation benefits pursuant to Utah Code Ann. § 85-1-45 (1988).

STANDARD OF REVIEW

The Utah Administrative Procedures Act (UAPA) applies to all proceedings commenced on or after January 1, 1988. Utah Code Ann. § 63-46b-22(2) (1989). Thus, we review Walls’s appeal under post-UAPA law.

Utah Code Ann. § 63-46b-16(4) (1989) provides:

The appellate court shall grant relief only if, on the basis of the agency’s record, it determines that a person seeking judicial review has been substantially prejudiced by any of the following:

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(d) the agency has erroneously interpreted or applied the law....

As to the application of this section, we have stated:

With the adoption of UAPA, deference to an agency’s statutory construction should be given only “when there is a grant of discretion to the agency concerning the language in question, either expressly made in the statute or implied from the statutory language.” Morton Int’l v. Auditing Div. of the Utah State Tax Comm’n, 814 P.2d 581, 589 (Utah 1991). Where there exists a grant, of discretion, “we will not disturb the Board’s application of its factual findings to the law unless its determination exceeds the bounds of reasonableness and rationality.” Pro-Benefit Staffing v. Board of Review, 775 P.2d 439, 442 (Utah App.1989). “[Ajbsent a grant of discretion, a correction-of-error standard is used in reviewing an agency’s interpretation or application of a statutory term.” Morton, 814 P.2d at 588....

Cross v. Industrial Comm’n, 824 P.2d 1202, 1204 (Utah App.1992); accord Uintah Oil Ass’n v. County Bd. of Equalization, 853 P.2d 894, 894-96 (Utah 1993); Horton v. Utah State Retirement Bd., 842 P.2d 928, 931 (Utah App.1992); Mor-Flo Indus., Inc. v. Industrial Comm’n, 817 P.2d 328, 330 (Utah App.1991), cert. denied, 843 P.2d 516 (Utah 1992).

The relevant portion of the statute at issue here, Utah Code Ann. § 35-1-45 (1988), reads:

Each employee ... who is injured ... by accident arising out of and in the course of his employment, wherever such injury occurred, ... shall be paid compensation for loss sustained on account of the injury ... and such amount for medical, nurse, and hospital services and medicines ... as provided in this chapter.

We have previously held that section 35-1-45 (1988) does not expressly or impliedly grant the Commission discretion to interpret or apply the language of that section. Cross, 824 P.2d at 1204; accord King v. Industrial Comm’n, 850 P.2d 1281, 1292 (Utah App.1993). Accordingly, we review the AU’s interpretation of “arising out of and in the course of” under Utah Code Ann. § 63-46b-16(4)(d) (1989) for correctness. See King, 850 P.2d at 1292; Cross, 824 P.2d at 1204.

ANALYSIS

In order to qualify for workers’ compensation benefits under Utah Code Ann. § 35-1-45 (1988), Walls has the burden of establishing: (1) that the subject injury occurred “in the course of” her employment, and (2) that the injury “arose out of” such employment. See Martinson v. W-M Ins. Agency, Inc., 606 P.2d 256, 258 (Utah 1980). Moreover, Walls must prove both of these requirements by a preponderance of the evidence. Lipman v. Industrial Comm’n, 592 P.2d 616, 618 (Utah 1979). Under the facts of this case, we hold that Walls failed to establish that her injury occurred within the course of her employment.¹

In M & K Corp. v. Industrial Comm’n, 112 Utah 488, 189 P.2d 132 (Utah 1948), the Utah Supreme Court held that the words, “in the course of,” refer to the time, place and circumstances under which an injury occurred. Id. 189 P.2d at 134. The court stated:

[T]he requirement that the accident arise in the course of the employment is satisfied if it occurs while the employee is rendering service to his employer which he was hired to do or doing something incidental thereto, at the time when and the place where he was authorized to render such service.

Id.; accord 82 Am.Jur.2d, Workers’ Compensation § 266 (1992); Maher v. Workers’ Compensation Appeals Bd., 33 Cal.3d 729, 661 P.2d 1058, 1060, 190 Cal.Rptr. 904, 906 (1983); Martin v. Kralis Poultry Co., Inc., 12 Ill.App.3d 453, 297 N.E.2d 610, 616 (1973); Indiana & Mich. Elec. Co. v. Morgan, 494 N.E.2d 991, 994 (Ind.App.1986); Newman v. Bennett, 212 Kan. 562, 512 P.2d 497, 501 (1973); Lisonbee v. Chicago Mill & Lumber Co., 278 So.2d 5, 7 (La.1973); Wiley Mfg. Co. v. Wilson, 280 Md. 200, 373 A.2d 613, 616 (Md.1977); Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 233 S.E.2d 529, 531 (1977); Graybeal v. Board of Supervisors, 216 Va. 77, 216 S.E.2d 52, 54 (Va.1975).

Thus, an injury occurs “in the course of” employment when it takes place (1) within the period of employment, (2) at a place where the employee reasonably may be in the performance of her duties, and (3) while she is fulfilling those duties or engaged in doing something incidental thereto. 82 Am.Jur.2d, Workers’ Compensation § 266 (1992); see also 1 Arthur Larson, Workmen’s Compensation Law § 14.00 (1993) (“The course of employment requirement ... demands that the injury be shown to have arisen within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment.”); Blade v. Mervis, 226 So.2d 552, 555 (La.App.) (requirement that injury occur within the course of employment means that it must occur during the hours of employment, which include a reasonable time before or after work, and not at any other time), cert. denied, 254 La. 1100, 229 So.2d 113 (La.1969); Reis v. Douglas County Hosp., 193 Neb. 542, 227 N.W.2d 879, 885 (1975) (for purposes of workers’ compensation, employee must establish a temporal nexus to the employment); Graybeal, 216 S.E.2d at 54 (requirement that injury occur in the course of employment must be satisfied by showing an unbroken course beginning with work and ending with injury under circumstances that the beginning and end are connected parts of a single work-related incident). Moreover, all three criteria of time, place and circumstances must be fulfilled in order for a claimant to recover workers’ compensation benefits. Brown v. Jim Brown’s Serv. Station, 45 N.C.App. 255, 262 S.E.2d 700, 702 (1980).

Because there are no cases in Utah “on all fours” with the case at bar, we look to courts in other jurisdictions that have addressed this particular question. Those courts have consistently held that employees who remain on the work premises following their employment for their own social purposes are not entitled to workers’ compensation benefits. See, e.g., Lemmon v. Industrial Comm’n, 154 Ariz. 63, 740 P.2d 484, 486-87 (Ariz.App.1986); American Legion Post No. 30 v. Gailey, 498 So.2d 1321, 1323 (Fla.App.1986), review denied, 508 So.2d 13 (Fla.1987); Lona v. Sosa, 420 N.E.2d 890, 894-95 (Ind.App.1981); Blade, 226 So.2d at 556-57; Emmel v. State Compensation Director, 150 W.Va. 277, 145 S.E.2d 29, 33-34 (1965).

American Legion Post No. 30 v. Gailey is representative of these cases and particularly applicable to the case at bar. In that case, an off-duty bartender remained at his place of employment following his shift to drink and socialize. A fight broke out between customers at the bar, and Gailey intervened to “further the business reputation and interests of his employer.” American Legion Post No. 30, 498 So.2d at 1322. The hearing officer awarded him workers’ compensation benefits, but the Florida Court of Appeals reversed, holding that “when the employee for a substantial amount of time before leaving is engaged in an unmistakably personal pursuit, such as ... drinking, the interlude is not within the course of employment.” Id. at 1322-23 (quoting 1A Arthur Larson, Workmen’s Compensation Law § 26.10 (1985)). Thus, the court of appeals reasoned that, notwithstanding the fact that Gailey intervened in the fight for the benefit of his employer, at the time of the injury, Gailey had concluded the course of his employment and was drinking as a paying customer for personal reasons, and therefore denied coverage. Id. at 1323.

The West Virginia Supreme Court of Appeals’s decision in Emmel v. State Compensation Director is also instructive. In that case, a brewery employee who remained at work after hours to drink and socialize was held not to be in the course of his employment. The court stated: “[Wjhere an employee voluntarily remains on the premises of his employer after his shift of employment has terminated, an injury received during that time will not warrant a finding that it occurred in the course of or resulting from his employment.” Emmel, 145 S.E.2d at 32 (citation omitted).

Applying the foregoing law to the facts of this case, it is clear that Walls was not “in the course of” her employment at the time of and under the circumstances present here. First, we cannot ignore the undisputed evidence that Walls’s shift had ended some five to six hours prior to the incident in question. See, e.g., American Legion Post No. 30, 498 So.2d at 1323 (employee determined not to be in the course of his employment when injury occurred two and one half hours after his shift ended); Lona, 420 N.E.2d at 894-95 (Ind.App.1981) (injury to employee who remained at his place of employment for two and one half hours after his shift ended not compensable); Blade, 226 So.2d at 556 (injury not covered due to three hour lapse between work and injury); Emmel, 145 S.E.2d at 32-34 (injury that occurred two hours after end of work day not in the course of employment and therefore not compensable). Furthermore, not only had Walls’s shift at the bar ended five to six hours earlier, but by her own admission, she remained at the bar “for the purpose of socializing and playing pool.” Second, at the time of the accident and under the circumstances as they then existed, Walls was without authority to render the service that resulted in her injury. The testimony of Ryan Thomas, which the AU found credible, indicates that no one with any authority at the bar requested Walls’s assistance in readying the beer keg. Thus, the facts of this case demonstrate that, under the circumstances as they existed at the time of the accident, Walls was merely a patron at the bar at the time the accident occurred. Accordingly, based on the foregoing, the AU was justified in determining that Walls had not met her burden of proving that her injury occurred within the course of her employment. See J & W Janitorial Co. v. Industrial Comm’n, 661 P.2d 949, 950-51 (Utah 1983); Martinson, 606 P.2d at 258-59.

Additionally, Utah cases involving employment related recreational activities are beneficial to our analysis of the case at bar. See, e.g., Black v. McDonald’s of Layton, 733 P.2d 154 (Utah 1987) (per curiam). Employment related recreational activities are reviewed for compensability under four factors: (1) time and place; (2) degree of employer initiative, promotion, and sponsorship; (3) financial support and equipment furnished by the employer; and (4) employer benefit. Id. at 156-57. Whether the activity in question is covered turns on the facts of each case. Id. at 157.

As to the first Black factor in the case at bar, although Walls was drinking and socializing on her employer’s premises, it is uncontroverted that such activity took place following the conclusion of her work day. As to the second factor, there was no evidence that Walls’s employer promoted or in any way encouraged employees to remain after work to drink and socialize on the premises. The recreation was not a direct part of the employment nor contemplated by it. Thirdly, it is clear from the record that Walls’s activities were engaged in without financial support from her employer. Lastly, Walls’s employer derived nothing more than a small pecuniary benefit from Walls’s presence at the bar, in that she was a paying customer at that time under the circumstances present in this case. Accordingly, we hold that Walls’s presence at the bar at the time of the injury, under circumstances that were strictly for her personal purposes of drinking and socializing, lacked a sufficient nexus with her employment to be said to be within the course of such employment. See id. at 158; Auerbach Co. v. Industrial Comm’n, 113 Utah 347, 195 P.2d 245, 246 (1948).²

Nonetheless, the dissent argues that we should narrow our analysis to focus on the point at which Walls opened the refrigerator where the kegs were stored and therefore conclude that Walls’s injury occurred in the course of her employment. Such constricted construction is contrary to prior Utah Supreme Court decisions. That court, in addressing the combination of social activities with employment, has previously stated: “[I]f the predominant motivation and purpose of the activity is in serving the social aspect, or other personal diversion of the employee, even though there may be some transaction of business or performance of duty merely incidental or adjunctive thereto, the person should not be deemed to be in the course of his employment; and where there is uncertainty as to the just-stated proposition[ ], that should be resolved by the Commission as the trier of the facts.” Martinson, 606 P.2d at 258.

In the present case, Walls’s own testimony, as well as the rest of the record, clearly reflects that her predominant reason for being at the bar at the time of the accident was her own drinking and socializing. Accordingly, even if at the very moment of injury she was acting to promote her employer’s best interest, such action was merely incidental to her presence at the bar, and she should not be deemed to be within the course of her employment. See id. (where predominant motivation of an activity is serving the social aspect, employee should not be deemed to be in the course of employment); Black, 733 P.2d at 158 (compensability reviewed based on employee’s presence at recreational activity, not based on her status at time of injury). This is especially true in light of the fact that she had not been directed by her employer, or anyone else, to prepare the keg. See Martinson, 606 P.2d at 258. Furthermore, the dissent’s argument eludes the simple, yet pivotal inquiry in this case of whether, under the circumstances of this case, at the time of the accident Walls was rendering service to her employer which she was hired to do at the time when and the place where she was authorized to render such service. See M & K Corp. v. Industrial Comm’n, 112 Utah 488, 189 P.2d 132, 134 (Utah 1948).³

Instead, the dissent erroneously relies upon dicta from J & W Janitorial Co. that states that the fact that an accident occurs after work does not necessarily take it outside the course of employment. J & W Janitorial Co., 661 P.2d at 950. Such reliance is misplaced for two reasons. First, the supreme court did not proceed to clarify under what circumstances an injury received after working hours would give rise to compensability, but instead went on to reverse the award of benefits in that case, holding that the employee was not within the scope of his employment. Id. at 950-51. Secondly, taking that proposition out of the context of that case, as the dissent does, is inappropriate because the supreme court qualified that proposition by stating that'the focus is properly on whether the injury occurred as a result of the employee being engaged in activities that one could reasonably expect that an employee would do in connection with his or her duties. Id. at 950. Here, Walls’s employer could not have reasonably expected that Walls would injure herself because she engaged in unauthorized activities five to six hours after her shift had ended.⁴

While the workers’ compensation statute is to be broadly interpreted, such interpretations must not be “so broad that an employee’s remaining on the work premises is, by itself, sufficient to justify an award.” J &W Janitorial Co., 661 P.2d at 950. Or, as stated by the West Virginia Supreme Court of Appeals, “While it has been said that the words, ‘in the course of,’ should receive liberal construction, they can not be liberalized by judicial interpretation for the purpose of allowing compensation on every claim asserted, thereby rendering such words meaningless.” Emmel v. State Compensation Director, 150 W.Va. 277, 145 S.E.2d 29, 33 (1965) (citation omitted).

CONCLUSION

For the foregoing reasons, we affirm the order of the Industrial Commission denying Walls workers’ compensation benefits under Utah Code Ann. § 35-1-45 (1988).

ORME, J., concurs.

1 . Since Walls must satisfy both prongs of the test under section 35-1-45 to establish compens-ability, see Martinson, 606 P.2d at 258, we limit the scope of our opinion to the question of whether the injury occurred within the course of her employment.

2 . Likewise, it is important to note that this case does not fit within the "emergency” exception to non-compensability of injuries incurred outside of the course of employment. That doctrine holds that an employee may be entitled to compensation for an injury sustained while doing an act outside of the course of her employment if such act was done for her employer’s benefit due to an emergency. See generally 1A Arthur Larson, Workmen’s Compensation Law § 28.10 (1993).

3 . Additionally, to adopt a rule such as that proposed by the dissent in this case would lead to incongruous results. For instance, a grounds keeper at an amusement park who, on his day off, takes his family to his place of employment and while there, stops to pick up a piece of trash from the ground, thereby injuring his back would, apparently, be entitled to compensation. On the other hand, an employee who remains at his work place for the benefit of his employer and who is injured while preparing himself a snack would presumably not be covered because at the very moment of the injury, he was not doing anything for the employer’s benefit.

4 . Furthermore, the other authorities cited by the dissent are also readily distinguishable. Maintenance Management, Inc. v. Tinkle, 40 Colo.App. 80, 570 P.2d 840 (1977), is cited by the dissent as an example of how the present case should be characterized. However, that case stands for the proposition that when an employer only fixes an employee's general work time, and the employer benefits from a departure from the schedule, injuries sustained in that departure are within the course of employment. Id. 570 P.2d at 842-43. In the present case, Walls’s employer fixed a particular work schedule, not just general working hours, and the deviation was not one from the schedule, but one that took place several hours after her scheduled employment had ended. Similarly, the dissent’s reliance on 1A Arthur Larson, Workmen's Compensation Law §§ 27.11 and 27.12 (1993) is misplaced. Those sections address the question of whether otherwise "on-duty” employees, not employees who are "off-duty” at the time of the injury, who assist co-workers are covered. Accordingly, it is improper to award Walls workers’ compensation benefits on the basis of the aforementioned authorities.