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Auction Empire, L.L.C. v. Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

November 26, 2013

AUCTION EMPIRE, L.L.C., Petitioner Employer,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, STANDARD FIRE INSURANCE CO./TRAVELERS INSURANCE, Petitioner Carrier, PAUL S. WELCH, JR., Respondent Employee.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Special Action - Industrial Commission ICA Claim No. 20121-160337 Carrier Claim No. 127CBEPE2166N J. Matthew Powell, Administrative Law Judge

Lester & Norton, P.C., Phoenix By Steven C. Lester Counsel for Petitioners Employer & Carrier

The Industrial Commission, Phoenix By Andrew F. Wade, Chief Counsel Counsel for Respondent

J. Wayne Turley, P.C., Phoenix By J. Wayne Turley Counsel for Respondent Employee

Presiding Judge Winthrop delivered the decision of the Court, in which Judge Downie and Judge Thompson joined.

MEMORANDUM DECISION

WINTHROP, Presiding Judge:

¶1 This is a special action review of an Industrial Commission of Arizona ("ICA") award and decision upon review finding that the respondent employee ("Claimant") sustained a compensable industrial injury when he was struck by a car while trying to aid a stranded motorist. Four interrelated issues are presented on appeal which may be summarized as whether the administrative law judge ("ALJ") legally erred by finding that Claimant's injury arose out of and in the course of his employment. Because we find no legal error, we affirm.

JURISDICTION AND STANDARD OF REVIEW

¶2 This court has jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(2) (2013), [1] 23-951(A), and Arizona Rule of Procedure for Special Actions 10. In reviewing findings and awards of the ICA, we defer to the ALJ's factual findings, but review questions of law de novo. Young v. Indus. Comm'n, 204 Ariz. 267, 270, 14, 63 P.3d 298, 301 (App. 2003). We consider the evidence in a light most favorable to upholding the ALJ's award. Lovitch v. Indus. Comm'n, 202 Ariz. 102, 105, ¶ 16, 41 P.3d 640, 643 (App. 2002).

PROCEDURAL AND FACTUAL HISTORY

¶3 The petitioner employer, Auction Empire, LLC ("Auction Empire"), hired Claimant on April 5, 2012, to be a sidewalk sign holder and to help set up for and clean up after auctions. When Claimant arrived for work that morning, he was given a six-foot sign and the location of the street corner where he would stand. He was instructed to speak to anyone who inquired about the auctions and to sound upbeat. Claimant walked to his assigned location, four blocks from Auction Empire at the southwest corner of University Drive and North Country Club Drive.

¶4 While standing on the street corner, Claimant observed a car stalled in the middle of the intersection. He testified that he was concerned that the car or its driver would get hit.[2] Because he believed the situation to be dangerous, he decided to help the driver move the vehicle out of the road. While the traffic light was red, Claimant proceeded into the intersection to help the stalled driver and was struck from behind by a car.

¶5 The Mesa Police Traffic Accident Report indicated that the car's driver was charged with running a red light and striking a pedestrian. The impact threw Claimant into the air, and he landed in the intersection on his head, sustaining serious injuries. Claimant testified that the next thing he remembered was waking up in the hospital. At the time of the ...


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