                                                            FILED BY CLERK
                                                              MAY 10 2005
                                                               COURT OF APPEALS
                            IN THE COURT OF APPEALS              DIVISION TWO
                                STATE OF ARIZONA
                                  DIVISION TWO

JAROSLAV HYPL,                              )
                                            )   2 CA-IC 2004-0018
                 Petitioner Employee,       )   DEPARTMENT A
                                            )
                 v.                         )   OPINION
                                            )
THE INDUSTRIAL COMMISSION OF                )
ARIZONA,                                    )
                                            )
                             Respondent,    )
                                            )
CPS, INC. FOR LEASED WORKERS                )
TO COREXPRESS,                              )
                                            )
              Respondent Employer,          )
                                            )
STATE COMPENSATION FUND,                    )
                                            )
                      Respondent Insurer.   )
                                            )
                                            )
JAROSLAV HYPL,                              )
                                            )
                 Petitioner Employee,       )
                                            )
                 v.                         )
                                            )
THE INDUSTRIAL COMMISSION OF                )
ARIZONA,                                    )
                                            )
                             Respondent,    )
                                            )
COREXPRESS,                                 )
                                            )
              Respondent Employer,          )
                                            )
SPECIAL FUND DIVISION, NO                       )
INSURANCE SECTION,                              )
                                                )
            Respondent Party in Interest.       )
                                                )


                  SPECIAL ACTION - INDUSTRIAL COMMISSION

                  ICA Claim Nos. 20030-690035 and 20031-390630

                                Insurer No. 02-46949

                     Thomas A. Ireson, Administrative Law Judge

                                AWARD SET ASIDE


Rabinovitz & Associates, P.C.
 By Bernard I. Rabinovitz                                                             Tucson
                                                           Attorneys for Petitioner Employee

The Industrial Commission of Arizona
 By Laura L. McGrory                                                                 Phoenix
                                                                     Attorney for Respondent

State Compensation Fund
 By James F. Crane and Jeffrey L. Patten                                              Tucson
                                                    Attorneys for Respondents Employer CPS,
                                                    Inc. and Insurer State Compensation Fund

Goering, Roberts, Rubin, Brogna, Enos &
Hernandez, P.C.
 By Pamela Treadwell-Rubin and                                                       Tucson
 Laura M. Huntwork                                        Attorneys for Respondent Employer
                                                                                 Corexpress

Special Fund Division, No Insurance Section
 By Andrew Wade                                                                      Phoenix
                                                     Attorney for Respondent Party in Interest

                                            2
H O W A R D, Presiding Judge.


¶1            In this statutory special action, petitioner/employee Jaroslav Hypl challenges

the administrative law judge’s (ALJ) decision concluding that Hypl had failed to show that

his injury occurred in the course of and arose out of his employment with Corexpress. The

ALJ made this determination based, in part, on his conclusion that Hypl was not entitled to

the benefit of a presumption. Because we conclude that Hypl may be entitled to a

presumption if he can show his injuries occurred during the time and space limitations of his

employment, we set aside the award.

¶2            The facts relevant to this special action are undisputed. On May 2, 2002, Hypl

accepted a job with Corexpress to transport several barrels of wire from Nogales, Arizona,

to El Paso, Texas, a distance of approximately 350 miles. Hypl began the trip at

approximately 6:00 p.m. that evening and was instructed to deliver the wire by 6:00 a.m. the

next morning. At 6:30 a.m., a half hour past the required delivery time, Hypl was arrested

on Interstate 10 near Deming, New Mexico, after a police officer witnessed him driving

erratically. At the time of his arrest, Hypl was traveling westbound, i.e., away from El Paso,

but had not yet delivered the wire to its destination.

¶3            Presuming Hypl was intoxicated, the officer took him to a police station for

booking. After closer examination, the officer realized Hypl was injured and sought medical

attention for him. Hypl was taken to a nearby hospital where physicians determined that he


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had a skull fracture on the top of his head, blood clots in the frontal and temporal lobes of

his brain, and blood in the surface of his brain. He was transported by helicopter to

University Medical Center in Tucson, Arizona, for emergency surgery and remained in a

coma for over eight hours after the surgery.

¶4            Hypl filed a claim for workers’ compensation benefits, which was denied.

Hypl requested a hearing and testified at the hearing that he had no memory of the events

that had caused his injury. Although he remembered loading the wire onto the truck in

Nogales and driving toward Interstate 10, he recalled nothing else until he awoke from the

coma after his surgery. The ALJ determined that Hypl had not met his burden of proving

the injury had occurred within the course and scope of his employment. The ALJ further

concluded that the “unexplained death presumption” had not been extended in Arizona to

an applicant who was alive and declined to extend it in this case. Ultimately, the ALJ found

the injury noncompensable. The award was affirmed upon administrative review, and this

statutory special action followed.

¶5            Hypl argues on review that the ALJ’s award is not reasonably supported by

the evidence, claiming he was entitled to a presumption that the injury occurred within the

course and scope of his employment. On review of an award, we deferentially review an

ALJ’s factual findings reasonably supported by the record but review the ALJ’s legal

conclusions de novo. PFS v. Indus. Comm’n, 191 Ariz. 274, 277, 955 P.2d 30, 33 (App.

1997).


                                               4
¶6            A compensable injury must both arise out of and occur in the course of

employment. A.R.S. § 23-1021(A). The “arising out of” requirement refers to the origin or

cause of the injury and is met when the claimant shows a causal relationship between the

employment and the injury. See Murphy v. Indus. Comm’n, 160 Ariz. 482, 485, 774 P.2d

221, 224 (1989). The “in the course of” requirement is satisfied if the claimant shows the

injury occurred during the time, place, and circumstances of the claimant’s employment.

Montgomery v. Indus. Comm’n, 173 Ariz. 106, 108, 840 P.2d 282, 284 (App. 1992). As

the claimant, Hypl had the burden of establishing both of these elements. See Stephens v.

Indus. Comm’n, 114 Ariz. 92, 94, 559 P.2d 212, 214 (App. 1977); see also Samaritan

Health Servs. v. Indus. Comm’n, 170 Ariz. 287, 289, 823 P.2d 1295, 1297 (App. 1991)

(“arising out of” and “in the course of” are separate tests that must both be satisfied). It is

not the employer’s burden to disprove the statutory requirements. Lawler v. Indus.

Comm’n, 24 Ariz. App. 282, 284, 537 P.2d 1340, 1342 (1975).

¶7            The unexplained death presumption, however, can shift the burden of

producing evidence. See Martin v. Indus. Comm’n, 73 Ariz. 401, 404, 242 P.2d 286, 288

(1952); see also Helton v. Indus. Comm’n, 85 Ariz. 276, 278-79, 336 P.2d 852, 853 (1959)

(adopting “Thayerian rule” concerning presumptions). But the exact factual predicate for

and the effect of the unexplained death presumption have not always been clearly stated.

In Martin, the issue was whether a ranch foreman, who had died in a car accident after

leaving a bar while taking care of either business or personal concerns, was covered by


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workers’ compensation. In that case, our supreme court adopted the unexplained death

presumption without so labeling it, saying:

              “It is generally held that when it is shown that an employee was
              found dead at a place where his duties required him to be, or
              where he might properly have been in the performance of his
              duties during the hours of his work, in the absence of evidence
              that he was not engaged in his master’s business, there is a
              presumption that the accident arose out of and in the course of
              the employment within the meaning of the compensation acts.”

73 Ariz. at 404, 242 P.2d at 288 (emphasis deleted), quoting 120 A.L.R. 683. Thus,

Arizona’s first supreme court case on this issue indicated that the presumption could apply

to both the “arising out of” and “in the course of” requirements, after a claimant has shown

that he or she meets the place and time restrictions of the employment. After finding the

claimant had produced sufficient facts to raise the presumption, the court set aside the award

denying Martin’s survivors death benefits. Id. at 405, 242 P.2d at 289.

¶8            The following year, in an unrelated case that coincidentally involved the same

name, our supreme court considered the issue again in Martin v. Industrial Commission,

75 Ariz. 403, 257 P.2d 596 (1953). There, a worker died of carbon monoxide poisoning

after business hours while in a company truck on the employer’s premises; it was unclear

why the employee was there. The court stated the sole question was whether the employee

had been in the course of his employment because, if so, the poisoning would clearly arise

from his employment.        The court cited Arthur Larson, The Law of Workman’s




                                              6
Compensation (1989) as the “correct statement of the law” concerning the death

presumption:

                      “When an employee is found dead under circumstances
               indicating that death took place within the time and space limits
               of the employment, in the absence of any evidence of what
               caused the death most courts will indulge a presumption or
               inference that the death arose out of the employment.”

Martin, 75 Ariz. at 411, 257 P.2d at 601, quoting 1 Larson, supra, § 10.32, at 3-101.

Therefore, the second supreme court case, which concerned only the in the course of

employment requirement, stated that the death presumption applies to the “arising out of”

requirement after the claimant demonstrates that the time and space requirements are met.

In that case, however, the court found that the presumption did not apply because sufficient

facts concerning the cause of death were known and the commission was entitled to infer

from the facts that the claimant had not yet entered into the course of his employment.

Martin, 75 Ariz. at 411, 257 P.2d at 601.

¶9             In Downes v. Industrial Commission, 113 Ariz. 90, 546 P.2d 826 (1976), an

employee was killed when the company vehicle he was driving was run over by a 150-ton

ore truck. Because the cause of the injury was apparent, the supreme court only needed to

decide whether the employee had been within the course of his employment at the time of

the accident. Without mentioning the term “death presumption,” but citing the first Martin

case, our supreme court found that certain presumptions applied to the course of

employment requirement:


                                              7
             There is a presumption that if an employee is injured while on
             company property during working hours, he is injured while
             within the scope and course of his employment . . . .

                    ....

                     There is a further presumption that when a workm[a]n is
             killed on the job he was, at the time of the fatal accident, within
             the scope and course of his employment . . . .

Downes, 113 Ariz. at 92-93, 546 P.2d at 828-29. The court determined that the employee’s

heirs had raised a rebuttable presumption that he had died in the course of his employment

and set aside the award denying them death benefits. Id. at 94, 546 P.2d at 830.

¶10          In Bennett v. Industrial Commission, 163 Ariz. 534, 536, 789 P.2d 401, 403

(App. 1990), Division One of this court stated that the presumption may apply to both the

course of employment and the arising out of employment requirements: “The unexplained

death presumption relaxes a claimant’s ordinary burden to prove that death or injury arose

out of and in the course of employment.” The Bennett court then stated that the

“presumption arises when a worker’s unexplained death occurs within the time and space

limits of employment” and quoted Larson’s statement that the presumption applies to the

arising out of requirement. Id. The court followed this analysis by quoting another passage

from Larson that discussed applying the unexplained death presumption when a claimant

satisfies the in the course of employment requirement:

             “The occurrence of the death within the course [i.e., the time
             and space limits] of employment at least indicates that the
             employment brought deceased within range of the harm, and the
             cause of harm, being unknown, is neutral and not personal. The

                                             8
             practical justification lies in the realization that, when the death
             itself has removed the only possible witness who could prove
             causal connection, fairness to the dependents suggests some
             softening of the rule requiring claimant to provide affirmative
             proof of each requisite element of compensability.”

Id. at 536, 789 P.2d at 403, quoting 1 Larson, supra, § 10.32, at 3-101 to 3-110.

¶11          Finally, in Konichek v. Industrial Commission, 167 Ariz. 296, 806 P.2d 885

(App. 1990), this court did not distinguish between the in the course of employment and the

arising out of employment requirements:

             The presumption operates to relax a claimant’s burden to prove
             that death occurred in the course of employment. Larson
             explains the rule as follows:

                    “When an employee is found dead under
                    circumstances indicating that death took place
                    within the time and space limits of the
                    employment, in the absence of any evidence of
                    what caused the death, most courts will indulge
                    a presumption or inference that the death arose
                    out of the employment.”

Id. at 298, 806 P.2d at 887 (emphasis added), quoting 1 Larson, supra, § 10.32, at 3-100.

¶12          Larson has recognized the difficulty that occurs when doubt exists on whether

the employee was in the course of employment at the time of death. After stating that the

death presumption applies to the arising out of requirement in the absence of proof of a

cause of death, Larson acknowledges that applying the presumption to that requirement

“becomes less clear when there is some room for doubt whether the injury even took place

in the course of employment.” 1 Arthur Larson & Lex K. Larson, Larson’s Workers’


                                              9
Compensation Law § 7.04(2)(c), at 7-29 (2004). Larson further states: “When . . . the

evidence leaves a wide area of uncertainty about the decedent’s movements between the last

time he or she was seen and the discovery of his or her death, denials have been issued

because of the failure to bring the episode within the course of employment in the first

place.” Larson & Larson, supra, § 7.04(2)(c), at 7-30. Larson then cites cases in which

sufficient connection to employment has been found and cases in which such a connection

has not been found. In each case, at least circumstantial evidence of relation to the course

of employment was required in order to invoke the presumption. Larson & Larson, supra,

§ 7.04(2)(c), at 7-30 to 7-35.

¶13           Based on the case law, we conclude that the unexplained death presumption

softens both the in the course of employment element and the arising out of employment

element. Therefore, in the absence of any contrary evidence, if a claimant proves by a

preponderance of the evidence that the decedent was within the time and space limitations

of employment when injured, we presume that the injury occurred in the course of

employment, i.e., the employee was injured while doing the employer’s work and not while

on a personal deviation, and that the unexplained injury arose out of the employment.

¶14           In this case, the ALJ correctly noted that the death presumption has never been

applied in Arizona to a living claimant. But this presumption developed out of fairness to

claimants “when the death itself has removed the only possible witness who could prove

causal connection.” Larson & Larson, supra, § 7.04(2), at 7-22. Hypl’s injury has left him


                                            10
unable to remember anything about how he was injured and, thus, has effectively removed

the only possible witness who could prove his injury was causally related to his

employment. We must therefore determine whether the unexplained death presumption, or

a similar type of presumption, should apply in the case of a living claimant who, by reason

of the injury, is unable to testify about how he or she was injured.

¶15           First, we note that, in Downes, the supreme court stated: “There is a

presumption that if an employee is injured while on company property during working

hours, he is injured while within the scope and course of his employment.” 113 Ariz. at 92,

546 P.2d at 828. But, because the employee there had died at the place of his employment,

this statement was merely dictum. Also, the court did not limit its statement to cases in

which the circumstances or cause of injury was unknown due to the death or injury.

Furthermore, in support of this statement, the court cited Royall v. Industrial Commission,

106 Ariz. 346, 476 P.2d 156 (1970), a case in which an employee taking a lunch break in

the employee lounge tripped over a co-employee while on her way to make a personal call.

In Royall, both the circumstances and the cause of the injury were known, and the court

found a sufficient connection to the employment without relying on a presumption. In fact,

the Royall court stated: “There is no ‘rule of thumb’ that an injury is compensable merely

because it was incurred during working hours or because it occurred within the linear

measurements of the employer’s premises.” Id. at 349, 476 P.2d at 159. Therefore, we

conclude that Downes did not extend the death presumption to living claimants.


                                            11
¶16           Although this issue is one of first impression in Arizona, other states have

considered similar issues with differing results. One state has applied this presumption in

cases comparable to the present one in which the claimant is comatose or otherwise unable

to explain the injury. See Sena v. Cont’l Cas. Co., 643 P.2d 622 (N.M. Ct. App. 1982).

And several states have extended this presumption to an employee who became ill or

comatose at the place of employment but died at a hospital several days later. See Gen.

Accident Fire & Life Ins. Co. v. Sturgis, 221 S.E.2d 51 (Ga. Ct. App. 1975); Nettles v. Gulf

City Fisheries, Inc., 629 So. 2d 554 (Miss. 1993). But other states have rejected applying

the unexplained death presumption to a living claimant as an unwarranted extension of the

doctrine. See, e.g., Salyers v. G. & P. Coal Co., 467 S.W.2d 115 (Ky. Ct. App. 1971); see

also A.H. Angerstein, Inc. v. Jankowski, 187 A.2d 81, 85 n.8 (Del. Super. Ct. 1962)

(“[O]ur statute does not permit the adoption and utilization of the ‘[unexplained death]

presumption’ . . . . It cannot be reconciled with our decided cases . . . .”); Pinkerton’s, Inc.

v. Helmes, 410 S.E.2d 646, 648 (Va. 1991) (“Broadening the use of the [unexplained death]

presumption to such an extent [would] significantly alter[ ] the jurisprudence of workers’

compensation law.”).

¶17           Larson suggests that the same rationale that supports the death presumption

would support applying a similar presumption to an injured employee who is unable to

relate the circumstances of the injury. Larson notes: “[I]t could be argued that, when the

claimants’ inability to tell the story is destroyed, not by death, but by its (for this purpose)


                                              12
equivalent in the form of total unconsciousness or inability to communicate, the same

presumption should be indulged.” Larson & Larson, supra, § 7.04(2), at 7-22.

¶18           In considering this issue, we note that Arizona cases have taken an expansive

view of the in the course of employment and arising out of employment requirements in

order to effectuate the workers’ compensation policy of construing the statutes liberally to

the employee’s benefit. In Peterson v. Industrial Commission, 16 Ariz. App. 41, 490 P.2d

870 (1971), a traveling employee spent several hours drinking, conversing, and playing pool

before retiring for the evening in a nearby rooming house. He then suffocated to death after

his head became stuck in the slats of the headboard as he slept. The Peterson court stated

that an injury occurs in the course of employment “if the employee is injured while he is

doing what a man so employed may reasonably do within a time during which he is

employed and at a place where he may reasonably be during that time.” Id. at 44, 490 P.2d

at 873. The court held that the claim was compensable because “a reasonable period of

sleep is necessarily incidental to the work of a traveling employee required to take overnight

lodging away from his home.” Id.

¶19           In Special Fund v. Catalina Trucking Co., 134 Ariz. 585, 658 P.2d 238 (App.

1982), the court held that an employee who was severely injured when he interrupted an

armed robbery at a service station was covered by the “street risk” doctrine. Furthermore,

in Circle K Store No. 1131 v. Industrial Commission, 165 Ariz. 91, 796 P.2d 893 (1990),

the supreme court held that an unexplained injury occurring within the scope of employment


                                             13
is presumptively compensable. In Circle K, the claimant fell for an unexplained reason

while throwing out store trash in Circle K’s dumpster on her way home. After determining

that an unexplained fall is a neutral injury, our supreme court held that, “in the case of a

neutral injury, the positional-risk doctrine applies.” Id. at 96, 796 P.2d at 898. Under the

positional risk doctrine, a court presumes that an injury arose out of the employment “‘if it

would not have occurred but for the fact that the conditions and obligations of the

employment placed claimant in the position where he was injured.’” Id., quoting 1 Arthur

Larson, The Law of Workman’s Compensation § 6.50, at 3-6 to 3-7 (1989).

¶20           In order to effectuate the principle that the workers’ compensation statutes

shall be liberally construed in favor of payment of compensation benefits, see Bennett, 163

Ariz. at 536, 789 P.2d at 403, we conclude that a presumption similar to the unexplained

death presumption should apply to an injury to a living worker who, due to the injury, is

unable to testify about how the injury happened. Thus, an injured worker who proves by

a preponderance of the evidence that he or she is unable to remember or to communicate the

circumstances and cause of an injury due to the injury and who proves by a preponderance

of the evidence that the injury occurred during the time and space limitations of the

employment is presumed to have been injured while doing the employer’s work, i.e., in the

course of the employment, and the injury is presumed to have arisen from the employment

in the absence of evidence that the worker was not within the course of the employment or

that the injury did not arise from the employment.


                                             14
¶21           In this case, the ALJ found that Hypl has no memory of the cause of or the

events leading to his injury. And neither the employer nor the insurer disputed below that

Hypl had suffered amnesia as a result of the injury and cannot remember the events.

Therefore, if Hypl can provide a sufficient factual basis to allow an inference that he was

injured in the time and space limitations of his employment, he is entitled to a presumption

that his injury occurred in the course of and arose out of his employment.

¶22           The ALJ found that “the preponderance of the evidence presented does not

establish [Hypl] was in the course and scope of his employment or that the ‘injury’ arose out

of the employment.” But the ALJ then stated: “There[fore], [Hypl] has not met his burden

and the claim must be found non-compensable unless there is a presumption in favor of

[Hypl] in view of his lack of memory that would soften the requirement of affirmative proof

of an injury arising out of and in the course and scope of his employment.” We have now

adopted that presumption. And, although the ALJ made findings of fact that could indicate

he found Hypl had failed to satisfy the time and space limitations necessary to invoke the

presumption, neither the exact requirements to invoke the presumption nor the presumption

had been defined previously. Accordingly, we cannot say that the ALJ had them in mind

when making his findings. Therefore, we set aside the award.



                                              ____________________________________
                                              JOSEPH W. HOWARD, Presiding Judge

CONCURRING:

                                             15
____________________________________
J. WILLIAM BRAMMER, JR., Judge


____________________________________
PETER J. ECKERSTROM, Judge




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