*1 appellants, sel for Michael George, St. of Midas Shop.2 favor Muffler GRANT, JJ.,
JACOBSON and concur. INN,
FLAMINGO MOTOR Petitioner
Employer, Compensation Fund,
State
Carrier,
The INDUSTRIAL COMMISSION OF
ARIZONA, Respondent, Tighe, Respondent Employee. A.
Patrick
No. 1 CA-IC 2580. Arizona, Appeals
Court of
Division
Department C. 17, 1982.
Aug. Park,
Robert K. Chief Counsel State Fund, George B. Phoenix Morse, Tucson, petitioners employer & carrier. Overholt, Acting
James A. Chief Counsel Ariz., Phoenix, for The Industrial Com’n of respondent. Delay offending pellate may impose upon
2. Rule 25. Sanctions for or Other Infrac- court penalties parties attorneys tions such reasonable or withholding damages (including contempt, or appeal solely Where the is frivolous or taken costs, attorney’s imposing imposing purpose delay, for the or where a motion is fees) of the case and as the circumstances solely purpose frivolous or filed for the of de- discouragement future of like conduct lay, any party guilty or where has been added.) may (Emphasis require. rules, ap- infraction of these unreasonable *2 P.C., Respondent carrier. Eppstein, by petitioner nied by Philip Davis & Tucson Tucson, Hall, respondent hearing. for for Follow- employee. Tighe filed a hearing, the administrative
ing the review, issued, and later affirmed on OPINION and Hearing Findings and upon a Decision CONTRERAS, Judge. Compensable Claim. The deci- Award sup- The sole issue whether evidence which following findings, included sion judge’s finding the administrative law ports action— challenge special petitioners Tighe respondent Industrial Commission: meaning of our Workmen’s within Com- the applicant In the instant case 9. statutes, petitioner pensation Flamingo services of a requested perform (Flamingo) Motor Inn time he was nature, i.e., assist in very limited does, find that it injured. We and affirm exchange he would receive a stove award. drinks for his labor. In the a round employ- the nature of the case instant BACKGROUND well the duration is of thereof During 1979 and respondent Tighe at a deter- little hired to work part-time, applicant had been on a had been mination basis at the motel employee as-needed and restaurant and was an of the defend- hired by petitioner operated Flamingo.1 employer He had herein. ant work, maintenance performed such as evidence establishes that 10. The furniture, cleaning, painting, moving mov- personal injury by sustained a applicant ing equipment, and scrubbing kitchen walls. arising occurring out of and accident 17, 1980, April respondent Tighe, On al- the scope course and of his though he had not been assigned to work the defendant herein ment with day, went to the premises of petitioner 17, 1980. April Flamingo pick up wife, who was then applicant 11. The is entitled to medi- working full time at the motel. cal, hospital surgical, and/or from provided tion benefits respondent While Tighe was sitting in the 17, 1980 until such time April as his con- waiting wife, for his bar he and several medically determined to be sta- dition is others were asked Jim Wooley, the main- tionary. motel, man at the tenance to help move a
large, heavy Chinese wok stove into the kitchen.
restaurant Petitioner Flamingo EMPLOYEE process was at that time in the of convert- start with the principles We existing into a Chinese (1) Compensation the Workmen’s Act as a restaurant. The owner in character whole is remedial and is to be placed Wooley in charge of converting liberally, construed S.H. Kress & Co. v. In restaurant and had authorized him to Commission, dustrial 38 Ariz. 299 P. help get additional when needed. Wooley (2) the definition of compensate helper offered each with sev- given interpreta is to be liberal eral drinks from the bar. While helping to properly tion in order to effectuate stove, respondent Tighe move purposes his back. v. Act. DeVall 24, 1980, April respondent Tighe On filed (App. 1978). claim, industrial accident which 23-901(4)(b)2 was de- “employee”: defines an Tsang-Chi-Chen 17, 1980, April 1. Mr. was the owner of the clear the record that on Although operating the restaurant. motel and the restau- the restaurant. Mr. Chen was operation portion previ- rant had been ously operated by party, leased a third pertinent statutory reference at the time alleged injury and the administrative law building 23-901. Construction of a in which to Definitions on the business is in the usual carry “workmen” “Employee”, “opera- way Baptist Green Church means:
tive” person in the (b) Every service (App. 1981), and cases cited therei subject P.2d provisions of this including aliens of a in which business
chapter,
Repair
and minors le-
n.4
*3
illegally permitted
or
to work for
gally
is in the usual
of busi
course
is carried
hire,
including
person
but not
a
whose
Kress, supra. Repair of equipment
ness.
is casual
employment
and not in the usual
business is in the usual course of
used
trade,
occupation
course of
business or
of
Carnes v. Industrial
business.
employer.3
264,
(1952).
sue
trade,
“in the usual course of
is
been held to be
other similar activities have
employer”
occupation
or
business
within the usual course
properly
law
subject
l(4)(b).
make
to the workmen’s
judge’s
23-90
§
decision was
amended,
23-902(A).
do not be-
Subsequently
and the
We
the statute was
act. A.R.S.
significant.
provision
forth in A.R.S.
is
is now set
that distinction
identical
lieve
23-901(5)(b).
a scheme
where there is
It is our
periodic
plan
short-term
need for extra
respondent
not contend that
3. Petitioners do
employees
the business
contractor, i.e.,
independent
Tighe
employer,
such extra short-term
then
right
petitioner
did not have
determining
employees are to be counted in
his work.
which he did
the method
control
reg-
employees
presence
three or more
Kress, supra, Greenway, infra.
Cf.
necessitating
ularly employed
the secur-
thus
insurance.
of workmen’s
precise
Greenway was not the
4. The issue in
P.2d at 560.
here,
posed
whether the activ-
but instead
issue
ity
profes-
“in the usual
Representative
the con-
of such activities are
employer”
as to
an
so
sion or
restaurant,
of additional booths in a
struction
employer subject
the workmen’s
make the
compensation
Papadopoulos,
Shop, Inc. v.
Sandwich
J.P.O.
23-902(A).
We
act.
Ind.App.
The award affirmed. Wooley came in and stated to bar present that he assistance EUBANK, J., everyone needed concurs. moving a “wok” stove and that he HAIRE, Judge, dissenting: anyone helping him rounds buy couple petitioning On this review the carrier and As found the administrative of drinks. question do not the administrative this offer “resulted in judge, approxi- judge’s determination that patrons, including five mately [claim- relationship existed between the offering bartender their ant] Flamingo Motor Inn and the claimant During the five to ensuing assistance.” twenty period during five to minute period, twenty helping minute *4 only which claimant his back. kitchen, the “wok” stove into the move issue is whether the relation- employment injured his back. It is apparently claimant ship which existed at that time was such as five to twenty period minute of em- bring exception claimant within the to appeal. that is involved in this ployment compensation coverage resulting finding In his award the claim statutory from the definition of ble, administrative law dis- judge fully the 23-901(4)(b).7 set forth in A.R.S. Under § the issues of whether claimant’s late cussed statutory provision that there is excluded filing hearing of his should be from the definition of for work- a contract for hire or excused compensation coverage purposes men’s employment relationship existed be- employment whose is both “casual” person Flamingo and the Motor tween claimant trade, “not in the usual course of busi- time of the The adminis- occupation injury. Inn at the employer.” ness or issues judge’s findings on these trative Here, the was in run- However, in questioned appeal. are not ning a motel and a conjunc- in award he neither refers to nor discusses his tion with that business. The restaurant 23-901(4)(b) relating of A.R.S. the terms § out, previously been leased and upon exclusion of where the em- operation resuming its the employer decid- casual in usual is both and not the ployment it change style ed to over to a Chinese food operation. Wooley, the employer’s reg- Furthermore, employer.9 he made man, ular maintenance was of the findings or conclusions of law on no factual he could handle necessary that kitchen these issues. remodeling, and therefore given was job, part which was not regular his main- paragraph In 9 of the award the adminis- tenance duties.8 judge following did make the trative statement: pertinent
The facts
particular
em-
involved
ployment
applicant
here occurred when the
“9.
In the instant case the
perform
went to the
employer’s premises
requested
claimant
was
services of a
wife
up
nature, i.e.,
who
pick
very
worked for
limited
in moving
assist
statutory
pertinent
judge
9.
reference
the time
The administrative law
does cite A.R.S.
alleged injury
23-901(4)
paragraph
and the administrative law
7 of his award.
§
judge’s
23-901(4)(b).
However,
immediately
decision was A.R.S.
from
award’s
follow-
§
amended,
Subsequently
quotation
appears
the statute was
from
it
provision is now set
identical
forth in A.R.S.
citation was made
reference to whether an
23-901(5)(b).
existed,
relationship
employment
and not as to
whether, assuming the existence of such a rela-
tionship,
employee
was excluded
A new
was hired to handle Mr.
coverage.
Wooley’s
period
maintenance duties
putting was
the Chinese kitchen.
he
my
form the basis for
exchange
a stove and in
he would receive
dissent from the
a round of
drinks
his labor.
In the majority’s affirmance
the award. Rath-
instant case the nature of the employ-
er,
upon my
dissent is
my
based
belief
ment as well as the duration
is of
thereof
hearing
evidence
re-
little
at a deter-
conclusion
em-
that claimant’s
quires
mination that
the applicant had been
was both casual and not in the
ployment
hired and was an employee of the defend-
the employer’s
ant
herein.”
Here, the focus must be upon
'
Although it might
argued
be
us-
which existed at the time
injury
ing the words “had been hired and was an
Claimant was merely one of sev-
occurred.
employee
(em-
defendant employer”
of a bar who were
patrons
offered a
eral
added)
phasis
administrative law
if they
help
of drinks
move
couple
addressing
the coverage exclusion issue
stove a short
heavy “wok”
distance as a
presented by
23-901(4)(b)’s
defini-
employer’s remodeling project.
employee,
that,
tion of
is my opinion
upon
hap-
was based
His
context,
read in
when
the statement more
there;
he
penstance that
he was not
logically appears to be directed to the ad-
out or hired
sought
upon any past
based
law judge’s
ministrative
conclusions con-
relationship
employment.
He and sever-
cerning
existence or non-existence of an
the offer of
patrons accepted
al other
If, however,
employment relationship.
spent
from five to
min-
twenty
drinks
law judge
intended para-
helping move the stove. The nature of
utes
9 to be a
graph
finding or conclusion that
*5
employment in
was
regard
claimant’s
“employee” falling
claimant
not an
as that
patrons.
the same
of the other
thus
provisions
within the
exclusion
of
23-901(4)(b),
then it must be held
not
real
appear
There does
to be
gross legal
the conclusion constitutes
the
was not
argument
paragraph
error.
If in
9 the administrative
in his
As stated
the claimant
casual.
intended to
judge
address
23-
A.R.S. §
brief:
901(4)(b)’sdefinition
of
then his
is
question
“The real
before this Court
conclusion that “the nature of the employ-
Respondent, in
the stove
moving
whether
...
is of little
in arriving
ment
restaurant,
the kitchen
into
determination” of
at a
whether the claim-
activity
in an
in the usual course
strange.
ant was
indeed
the
of
perceive
It is difficult to
how a determina-
op-
Employer, who owned and
concerning
could be made
conjunction
with
the
erated
employment was not in the usual
claimant’s
inn.”
the motor
employer’s
business without
remodeling and reconstruction
full consideration and conclusive ef- Was
giving
style
in a
res-
the “nature of the
for use
Chinese
employment”.
fect
the kitchen
operation in the usual course
taurant
foregoing
apparent
From the
it is
to me
I
it was
business?
submit that
employer’s
1)
the administrative law
either
moving
of equipment
This was not
not.
appreciate
significance
failed to
part
or occasioned as a
of neces-
required
23-901(4)(b),
2)or
refused to con-
maintenance, repair
replace-
or even
sary
decision,
sider it
even
the course of a
might be usual in
as
though
the issue was raised
the carrier
operation.
restaurant business
and/or
motel
hearing
prior
on this matter
job, and the testimo-
awas
This
award,
post-award
well as in a
memoran-
as
being per-
it was not
specific that
ny
accompanying
the carrier’s
for
dum
regular
employer’s
formed
or-
review. While this failure alone would
resulting non-
The
operation.
award, maintenance
dinarily justify setting aside the
result,
which I
and one
Commission,
coverage is a harsh
Duzee v. Industrial
Van
it not for the
countenance were
(1975),
addresses VICE, Employer, Petitioner activities which are “usual” to the between business, such as Company, Travelers Insurance State work, repair maintenance and routine Fund, to activities which are not opposed Carriers, business, as, such “usual” case, remodeling. In the J.P.O. Sand- this v. case, holding the court based its find- wich The INDUSTRIAL COMMISSION OF coverage on the fact that the ARIZONA, Respondent, that certain booths being installed testified of injury by time the workman “were Martell, Respondent Employee. Michael necessary in his business”. This clearly the standard set our workmen’s com- not 1 CA-IC 2570. No. laws. The Colosimo decision is pensation analysis characterized a lack likewise Arizona, Appeals Court legal reasoning. per- In that decision Division greatest justification haps set forth Department C. for affirmance of the award is the the court Aug. conclusionary statement: court’s “The case was submitted on briefs and large.” amount involved not occurring that an holding injury
For a case remodeling project was casual and coverage, excluded from see
therefore Duncan, (Tenn.
Feathers S.W.2d
1979).
Although the exclusion of re- 23-901(4)(b) by A.R.S. leads
quired results, squarely the issue should be
harsh and resolved when raised before an
faced Likewise, judge. require applied must that statutes be
court impose If this court does not written. resulting in- requirement, then the
such *7 application in the of the exclu-
consistencies 23-901(4)(b) language of
sionary unequal well lead to treatment
could ben-
claimants applica- honest and uniform If the
efits. results, leads to harsh of the statute fit to legislature might see perhaps
then statute, as has been or amend
repeal case of similar statutes
done states, Michigan. California and two
least Compensa- 1C A.
See
tion, above, forth I would reasons set
For the the award. aside
set