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Gurtler v. Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

July 28, 2015

LISA GURTLER, Petitioner Employee
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent CITY OF SCOTTSDALE, Respondent Employer CITY OF SCOTTSDALE, Respondent Carrier

Special Action - Industrial Commission. ICA Claim No. 20122-910196. Carrier Claim No. 111201-WC-314. Honorable Robert F. Retzer, Administrative Law Judge.

For Petitioner Employee: Joel F. Friedman, Joel F. Friedman, PLLC, Phoenix.

For Respondent: Andrew F. Wade, Industrial Commission of Arizona, Phoenix.

For Respondent Employer and Carrier: R. Todd Lundmark, Klein, Doherty, Lundmark, Barberich & LaMont, P.C., Phoenix.

Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.

OPINION

Page 415

Michael J. Brown, Judge

[¶1] Lisa Gurtler sustained multiple injuries from a car accident that occurred as she was driving home, only minutes after she conducted a business errand at the end of her work day. Her subsequent claim for workers' compensation was denied. Because we conclude that Gurtler's accident did not occur while she was in the course of her employment, we affirm the decision bye the administrative law judge (" ALJ" ) that the claim was noncompensable.

BACKGROUND

[¶2] We view the evidence in the light most favorable to upholding the ALJ's award. Munoz v. Indus. Comm'n, 234 Ariz. 145, 147, ¶ 2, 318 P.3d 439 (App. 2014). Gurtler was employed by the self-insured respondent employer, City of Scottsdale, as an assistant auditor responsible for assisting with auditing various programs and functions as approved by the City Council. Gurtler performed her work both at her office in Scottsdale and at the offices of her " audit clients." She drove her personal vehicle for out-of-office appointments, and although travel reimbursement was available, she requested it only about one-third of the time. Gurtler usually worked from 7:30 a.m. to 5:00 p.m., with a half-hour for lunch.

[¶3] In the days leading up to her injury, Gurtler had been doing some preliminary

Page 416

work for an upcoming audit of Vista del Camino (" VDC" ), a City facility that provides welfare and community assistance programs. She had borrowed a " policy and procedure" manual from Kathy Breen, VDC's manager, to familiarize herself with VDC's functions, and had told VDC she would return the manual on Monday, January 23, 2012. Gurtler was unable to return the manual on Monday, so in an email exchange with Ms. Breen, she promised instead to return it the next day.

[¶4] Gurtler left her office on Tuesday afternoon at about 5:15 p.m. and drove 2.8 miles to VDC to deliver the manual. According to Gurtler, she wanted to return it in a timely manner to demonstrate professionalism and to develop a good rapport with the new audit client. She testified that she was not required to return the manual on Tuesday, and had no required time frame for returning audit documents. Gurtler also acknowledged that rather than return the manual herself, she could have used the City's internal mail delivery system, with daily pick-up and delivery between all City departments, to return it.

[¶5] When Gurtler arrived at VDC, the office was closed, so she put the manual through a " glass opening" at the reception desk along with her business card and then left to drive home. The accident occurred shortly before she reached the point that would have placed her back on the route she typically used for her daily commute (Scottsdale Road).[1] As Gurtler would later explain, although her work for the day was completed and she was driving home, she would not have been at the location where the accident occurred were it not for her trip to the VDC office. Gurtler filed a workers' compensation claim with the Industrial Commission of Arizona (" ICA" ) for injuries she sustained in the accident, but her claim was denied and she timely requested a hearing.

[¶6] After hearing testimony, the ALJ found that Gurtler's claim was precluded by the going and coming rule and none of the exceptions to the rule applied. Gurtler timely requested administrative review, asserting that the ALJ erred in failing to apply the dual purpose doctrine, a recognized exception to the going and coming rule. The ALJ summarily affirmed the award and this timely appeal followed.

DISCUSSION

[¶7] Generally, we will not set aside an ICA decision and award reasonably supported by the evidence. Finnegan v. Indus. Comm'n, 157 Ariz. 108, 109, 755 P.2d 413 (1988). 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 (App. 2003). As the claimant, Gurtler has the burden of showing she is ...


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