Arizona Court of Appeals Division One holds that a traveling employee, who was on a break performing a personal errand on a customer’s property when he sustained a head injury, was within the course of his employment for purposes of the Arizona Workers’ Compensation Act.

A forklift driver took a quick break from loading cardboard bales at the rear of a store to drive his forklift around to the front of the store to purchase dog biscuits.  Along the way, he ran over a large rock that jolted the forklift and caused him to hit his head twice on the forklift’s protective cage.  After stopping the forklift, the man got out and then lost consciousness.  He was transported by ambulance to an emergency room for treatment.

The man’s employer and its insurance carrier denied his worker’s compensation claim because they took the position that the man was outside the course of his employment when he was injured because he was on a personal errand and was not authorized to go into the store or use the forklift for transportation.

At an evidentiary hearing, the man presented evidence that, although there was an unwritten rule prohibiting workers from using the forklift for transportation, they were permitted to enter stores to purchase food or use the restroom, and he and other drivers routinely drove forklifts to the front of a store for this limited purpose, and he did not know of any company rule against it.  On that day, the man’s primary purpose was to purchase dog biscuits, but he said he may have also gotten something to drink.  The store had instituted a “no touch” policy in reaction to the COVID-19 pandemic, and the man’s employer had texted him that he should not enter the store except to use the restroom or buy food, but the man testified he did not receive that text.

The ALJ found the man’s injury compensable because using the forklift to drive to the front of the store for a quick errand was not a “clear violation of a work rule or so out of the ordinary as to constitute a deviation from his employment.”  After the ALJ affirmed the award on administrative review, the employer and its carrier filed a statutory special action in the court of appeals.

The court of appeals affirmed the ALJ’s ruling because it found that the man had suffered an injury (1) by accident, (2) arising out of and (3) in the course of his employment.  The court found that conduct of a traveling employee—either overnight or daily—is in the course of employment unless it is a “substantial deviation” from that employment.  Whether conduct amounts to a substantial deviation is a fact-intensive question.  Here—because the man did not receive the text instructing him not to enter the store except to buy food or use the restroom; had not violated any other company rule that was clearly communicated, applicable to the employee, and routinely enforced; and was a traveling employee performing a short errand before returning from travel—any deviation from his employment was slight, and the ALJ properly concluded his injury was compensable.

Judge Thumma authored this opinion, in which Presiding Judge Cruz and Judge Brown joined.

Posted by: Heather Robles