                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                 NICHOLAS MARTINEZ, Plaintiff/Appellant,

                                         v.

SCOTTSDALE HEALTHCARE CORPORATION, an Arizona corporation
   dba SCOTTSDALE HEALTHCARE-OSBORN, Defendant/Appellee.

                              No. 1 CA-CV 15-0599
                               FILED 1-24-2017


            Appeal from the Superior Court in Maricopa County
                           No. CV2012-004911
                     The Honorable John C. Rea, Judge
                  The Honorable Jo Lynn Gentry, Judge

                                   AFFIRMED


                                    COUNSEL

Tiffany & Bosco, P.A., Phoenix
By Leonard Mark, David Cowles, Amy D. Sells
Counsel for Plaintiff/Appellant

Jones, Skelton & Hochuli, P.L.C., Phoenix
By William R. Jones, Jr., Eileen Dennis GilBride, Sean M. Moore
Counsel for Defendant/Appellee
                           MARTINEZ v. SHC
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Margaret H. Downie joined.


N O R R I S, Judge:

¶1            Nicholas Martinez, Plaintiff/Appellant, appeals from the
superior court’s judgment granting summary judgment in favor of
Scottsdale Healthcare Corporation (“SHC”), Defendant/Appellee. Because
the injury Martinez alleges arose out of and in the course of his employment
with SHC, the Arizona Workers’ Compensation Act bars his common law
medical negligence claim against SHC. Further, under the circumstances of
this case, Martinez is not entitled to pursue that claim against SHC under
the dual capacity doctrine. Accordingly, we affirm the superior court’s
judgment in favor of SHC.

           BACKGROUND AND PROCEDURAL HISTORY1

¶2             SHC employed Martinez as a transporter. On March 8, 2008,
while working for SHC and at a SHC facility, Martinez transported a SHC
patient who may have had tuberculosis (“TB”). Martinez reported the
potential TB exposure to SHC and completed a “Worker’s Report of
Injury/Incident.” SHC directed Martinez to go to its occupational health
department to obtain a TB skin test. A physician’s assistant in SHC’s
occupational health department performed the skin test and then referred
Martinez to SHC’s radiology department for a chest x-ray, indicating on the
referral sheet “Positive Skin Test.”

¶3           A radiologist x-rayed Martinez at SHC’s facility, at SHC’s
expense. The radiologist interpreted the x-ray and reported: “There is a
patchy, nodular infiltrate in the right base and there may be some
mediastinal adenopathy. Findings are compatible with coccidiodomycosis
or other granulomatous disease. Follow-up chest films could be done to
evaluate progress.” SHC did not, however, communicate the radiologist’s

              1We  view the facts in the light most favorable to Martinez, the
non-prevailing party. BMO Harris Bank, N.A. v. Wildwood Creek Ranch, LLC,
236 Ariz. 363, 365, ¶ 7, 340 P.3d 1071, 1073 (2015).




                                      2
                            MARTINEZ v. SHC
                            Decision of the Court
findings to Martinez. Roughly two years later, a physician diagnosed
Martinez with Hodgkin’s lymphoma.

¶4            As relevant here, Martinez sued SHC for Arizona common
law medical negligence and alleged SHC had provided him medical
treatment in a negligent manner that caused him injuries and damages.2 In
subsequent filings in the superior court, Martinez argued the negligence
that “form[ed] the basis of his [medical negligence] occurred while he was
being screened for TB,” and asserted he had been injured when SHC and
the radiologist failed to notify him of the results of his chest x-ray, thereby
depriving him of the opportunity to discover and treat his cancer earlier.
SHC moved for summary judgment, arguing the Arizona Workers’
Compensation Act (the “Act”), Arizona Revised Statutes (“A.R.S.”) sections
23-901 to -1104 (2016),3 barred Martinez’s claim because his alleged injury
arose out of and in the course of his employment with SHC. The superior
court agreed with SHC and granted its motion, ruling that the events that
led up to the x-ray were “directly related to Martinez’s employment and
arose in the course of his employment.”

                               DISCUSSION

I.     The Exclusivity of the Arizona’s Workers’ Compensation Act and
       the Elements of an Injury Governed by the Act

¶5            The sole basis for the superior court’s entry of summary
judgment in SHC’s favor was that Martinez’s claim was preempted by the
Act, which meant, as we discuss below, that the superior court did not have
jurisdiction to adjudicate that claim. Thus, this appeal does not concern
whether, as a factual matter, Martinez could prove an Arizona common law
medical negligence claim against SHC. Instead, the narrow but dispositive
issue is whether the Act preempted Martinez’s claim against SHC.

¶6            Before statehood, an Arizona employee injured by an
employer’s negligence could bring a common law tort action against the
employer. See generally Grammatico v. Indus. Comm’n, 211 Ariz. 67, 70, ¶ 10,
117 P.3d 786, 789 (2005). But, for a variety of reasons, employees bringing

              2Martinez  also sued the radiologist, and his claim against the
radiologist is pending in the superior court, though stayed pending this
appeal. The radiologist is not a party to this appeal.

              3The applicable provisions of the Workers’ Compensation Act
have not been materially amended since Martinez’s x-ray in March 2008.
Thus, we cite to the current version of the statutes.


                                      3
                             MARTINEZ v. SHC
                             Decision of the Court
such claims rarely succeeded. Id. To protect workers injured during their
employment, the framers of the Arizona Constitution mandated that “[t]he
legislature shall enact” workers’ compensation legislation “by which
compensation shall be required to be paid” to an injured worker (or
dependents in case of death) by the worker’s employer:

               [I]f in the course of such employment personal
               injury to or death of any such workman from
               any accident arising out of and in the course of,
               such employment, is caused in whole, or in part,
               or is contributed to, by a necessary risk or
               danger of such employment, or a necessary risk
               or danger inherent in the nature thereof, or by
               failure of such employer, or any of his or its
               agents or employee or employees to exercise
               due care or to comply with any law affecting
               such employment . . . .

Ariz. Const. art. 18, § 8.

¶7             The Arizona Legislature implemented this constitutional
mandate shortly after statehood and adopted a broad, comprehensive
statutory system for workers’ compensation benefits designed to benefit the
injured employee. City of Tucson v. Indus. Comm’n, 236 Ariz. 52, 57, ¶ 19, 335
P.3d 1131, 1136 (App. 2014). In so doing, the Legislature created a system
that balanced the “sacrifices and gains” of both employees and employers.
Employees relinquished their common law rights to sue for employment
injuries in exchange for a system in which the employers assumed liability
without regard to fault and without having to incur the cost of litigation.
Diaz v. Magma Copper Co., 190 Ariz. 544, 548-49, 950 P.2d 1165, 1169-70 (App.
1997) (internal citation and quotation omitted).

¶8             As part of this balancing of interests, the Legislature included
an exclusivity provision in the Act. Section 23-1022(A) provides that the
“right to recover compensation . . . for injuries sustained by an employee . . .
is the exclusive remedy against the employer or any co-employee acting in
the scope of his employment.” A.R.S. § 23-1022(A) (“exclusivity
provision”). As our supreme court has recognized, the exclusivity provision
is a key component of the balancing of interests made by the Legislature in
implementing the constitutional mandate in Article 18, Section 8, as the
exclusivity provision reflects the “trade of tort rights for an expeditious, no-
fault method by which an employee can receive compensation for
accidental injuries sustained in work-related accidents.” Stoecker v. Brush
Wellman, Inc., 194 Ariz. 448, 451, ¶ 11, 984 P.2d 534, 538 (1999). The Act thus


                                       4
                             MARTINEZ v. SHC
                             Decision of the Court
establishes “a clear legislative intent to bar any common law right-of-action
which might possibly flow from a work-related injury.” Mardian Const. Co.
v. Sup. Ct. In & For Maricopa Cty., 157 Ariz. 103, 106, 754 P.2d 1378, 1381
(App. 1988). Because the Act, based on the constitutional directive, provides
the exclusive remedies to injured workers (with a few exceptions not
applicable here), “[t]he superior court lacks subject matter jurisdiction in a
tort action against an employer by an employee injured in the course of his
employment.” Swichtenberg v. Brimer, 171 Ariz. 77, 82, 828 P.2d 1218, 1223
(App. 1991) (citations omitted). Stated differently, given the Act’s breadth
and terms, as directed by the Arizona Constitution, the Act preempts
common law claims, including an Arizona common law medical negligence
claim, for injuries that arise out of and in the course of the employee’s
employment. See also A.R.S. § 23-1021.

¶9             To qualify for workers’ compensation benefits, an employee
must be injured “by accident.” A.R.S. § 23-1021. An “accident” includes
“any unexpected, injury-causing event that is work-connected; it need not
be accompanied by physical force or exertion.” Dugan v. Am. Express Travel
Related Servs. Co., Inc., 185 Ariz. 93, 99, 912 P.2d 1322, 1328 (App. 1995); see
Fireman’s Fund Ins. Co. v. Indus. Comm’n, 119 Ariz. 51, 53-54, 579 P.2d 555,
557-58 (1978) (injury is caused by accident when resulting injury is
unexpected; physical impact or exertion not required); see also State Comp.
Fund v. Indus. Comm’n, 24 Ariz. App. 31, 34, 535 P.2d 623, 626 (1975)
(nonphysical event may constitute an “accident”).

¶10           Further, the injury caused by the accident must arise out of
and in the course of the employee’s employment. A.R.S. § 23-1021. These
two requirements pertain to legal causation. DeSchaaf v. Indus. Comm’n, 141
Ariz. 318, 320, 686 P.2d 1288, 1290 (App. 1984) (citations omitted).
Additionally, there must also be medical causation, that is, proof that the
accident caused the injury. Polanco v. Indus. Comm’n, 214 Ariz. 489, 492, ¶ 7,
154 P.3d 391, 394 (App. 2007).

¶11            The “arising out of” requirement is a broad concept that refers
to the origin or cause of the injury. Delbridge v. Salt River Project Agr. Imp. &
Power Dist., 182 Ariz. 46, 50-51, 893 P.2d 46, 50-51 (App. 1994) (citation
omitted). “If the injuries had their origin in a risk connected with the employment
and were a consequence of that risk, they arose out of the employment.” Id. at
51, 893 P.2d at 51 (citation omitted). An injury also “arises out of”
employment if the injury is incidental to the employee’s discharge of the
duties of the employment. PF Chang’s v. Indus. Comm’n, 216 Ariz. 344, 347,
¶ 15, 166 P.3d 135, 138 (App. 2007) (citing Royall v. Indus. Comm’n, 106 Ariz.
346, 349, 476 P.2d 156, 159 (1970)). Although these formulations of the
arising out of requirement vary, they share a common thread: A causal


                                        5
                            MARTINEZ v. SHC
                            Decision of the Court
relation must exist between the injury and the employment. E.g., Murphy v.
Indus. Comm’n, 160 Ariz. 482, 485, 774 P.2d 221, 224 (1989).

¶12            The “in the course of” requirement refers to the time, place,
and circumstances of the injury. PF Chang’s, 216 Ariz. at 347, ¶ 14, 166 P.3d
at 138. “[A]n activity is related to the employment if it carries out the
employer’s purposes or advances his interest directly or indirectly.” Jayo v.
Indus. Comm’n, 181 Ariz. 267, 270, 889 P.2d 625, 628 (App. 1995) (citing 1A
Arthur Larson, The Law of Workmen’s Compensation § 20.00 (1993)). Although
the “in the course of” requirement must be independently satisfied,
Arizona courts have recognized that it and the “arising out of” requirement
are interrelated and “must be considered as a whole in order to determine
whether the necessary degree or quantum of work-connection is
established to bring the [claimant] under the coverage” of the Act. Nowlin
v. Indus. Comm’n, 167 Ariz. 291, 293, 806 P.2d 880, 882 (App. 1990) (citation
and quotations omitted).

II.    The Nature of Martinez’s Injury

¶13            In the superior court, Martinez argued the negligent conduct
that formed the basis of his medical negligence claim against SHC occurred
when he was being screened for TB, and asserted that, in failing to notify
him of the results of the chest x-ray, SHC and the radiologist had injured
him by depriving him of the opportunity to discover and treat his cancer
earlier. See generally Stanley v. McCraver, 208 Ariz. 219, 224-25, ¶ 17, 92 P.3d
849, 854-55 (2004) (explaining in case that did not involve the Act that,
depending on the circumstances, doctor retained by a prospective
employer may breach the standard of care by failing to disclose to
prospective employee abnormalities discovered during pre-employment
TB screening). The issue, then, is whether Martinez’s claim—which is based
on his claimed injury of losing the opportunity to discover and treat his
cancer earlier—falls within the exclusivity provision, and preemptive force,
of the Act. The answer to this question turns on whether Martinez was
injured “by accident arising out of and in the course of his employment.”
A.R.S. § 23-1021. Reviewing the superior court’s summary judgment ruling
de novo, the superior court correctly concluded that Martinez’s injury “was
directly related to Martinez’s employment and arose in the course of his
employment.” See BMO Harris Bank, 236 Ariz. at 365, ¶ 7, 340 P.3d at 1073
(appellate court reviews grant of summary judgment de novo); Mitchell v.
Gamble, 207 Ariz. 364, 368, ¶ 7, 86 P.3d 944, 948 (App. 2004) (whether
superior court properly applied Act’s exclusivity provision to bar tort claim
presented mixed question of law and fact; thus appellate court’s review is
de novo).



                                       6
                            MARTINEZ v. SHC
                            Decision of the Court
III.   The Act’s Exclusivity Provision Bars Martinez’s Medical Malpractice
       Claim Against SHC

¶14           As discussed, an industrial accident includes any unexpected,
injury-causing event that is work-connected. See supra ¶ 9. Martinez was
potentially exposed to TB, an occupational hazard, while working as a
transporter for SHC. Although Martinez did not contract TB, the injury
causing event he alleged occurred in conjunction with that work-connected
event. Thus, Martinez was injured “by accident” under Arizona law.

¶15           Further, the injury “by accident” he alleged arose out of and
in the course of his employment for SHC. Martinez was potentially exposed
to TB while transporting a SHC patient; as his employer, SHC directed
Martinez to go to its occupational health department for diagnostic tests
and required him to undergo a TB skin test and then a chest x-ray
examination conducted by the radiologist for SHC, at SHC’s expense.
Martinez was x-rayed only because he was employed by SHC and only
because he had been exposed to an occupational hazard – TB – during his
employment. The radiologist examined Martinez only in connection with
Martinez’s work for SHC and only at SHC’s direction. SHC’s alleged
negligent diagnostic treatment and the resulting injury Martinez alleges
arose directly out of and in the course of his employment by SHC.4

¶16           Nevertheless, Martinez argues the injury he experienced did
not arise out of his employment because it was not causally related to a
necessary risk or danger inherent in his work as a transporter. We reject this
argument for several reasons.



              4In   Wickham v. N. Am. Rockwell, 87 Cal. Rptr. 563, 567 (Cal. Ct.
App. 1970), the California Court of Appeals held the exclusivity provisions
of California’s workers’ compensation act barred an employee’s negligence
claims against his employer and a co-worker physician in circumstances
similar to those presented here. There, the employer provided preventive
medical services to the employee in connection with occupational hazards
but failed to diagnose and report to the employee a non-work related
disease thereby interfering with the employee’s ability to treat the disease
earlier. Id. at 564. And, in Unger v. Cont’l Assurance Co., 481 N.E.2d 684, 689
(Ill. 1985), the Illinois Supreme Court held the exclusivity provisions of
Illinois’ workers’ compensation act barred an employee’s medical
negligence claim against a co-worker physician who failed to diagnose a
malignant lesion in a chest x-ray examination which was “perceived as a
necessary condition of [the employee’s] continued employment.”


                                       7
                           MARTINEZ v. SHC
                           Decision of the Court
¶17           First, this argument focuses too narrowly on Martinez’s work
as a transporter and ignores Arizona law that an injury “arises out of”
employment if the injury is incidental to the employee’s discharge of the
duties of the employment. See supra ¶ 11. Martinez was exposed to a
potential occupational hazard while working for SHC, and as a result, SHC
required him to be tested for TB as part of his employment. Simply put:
Having been exposed to potential TB as an employee for a hospital, being
tested for TB by the hospital was “incidental” to his duties as an employee
of the hospital.

¶18           Second, the injury alleged by Martinez is based on his
assertion that SHC acted negligently in failing to disclose to him what it had
uncovered during the x-ray examination while being tested for TB as part
of his employment. See supra ¶ 13. The Act applies to injuries sustained by
an employee arising out of the employer’s failure to exercise due care in the
workplace. See Gamez v. Brush Wellman, Inc., 201 Ariz. 266, 269-271, ¶¶ 6-11,
34 P.3d 375, 378-381 (App. 2001) (employer’s negligence, including gross
negligence, is governed by the Act and does not amount to willful
misconduct which is excluded from the Act); Diaz, 190 Ariz. at 551, 553, 950
P.2d at 1172, 1174 (employer’s negligent conduct governed by the Act;
further, exclusivity provision of the Act barred employee’s malpractice
claim against co-worker who administered first aid to employee at accident
site).

¶19            Third, although Martinez uses different terminology to
describe his injury—loss of an opportunity to discover and treat his cancer
sooner—he has essentially alleged that SHC’s failure to inform him of the
x-ray results exacerbated or aggravated his pre-existing, non-compensable
cancer. A pre-existing condition that is exacerbated or aggravated by an
industrial accident, however, is compensable under the Act and subject to
the exclusivity provision of the Act. See McCreary v. Indus. Comm’n, 172 Ariz.
137, 144, 835, P.2d 469, 476 (App. 1992) (claim compensable if work activity
combines with preexisting condition to cause further injury).

¶20            For example, in Dugan, 185 Ariz. at 96, 912 P.2d at 1325, an
employee with a preexisting heart condition suffered a “heart event” at
work. Unbeknownst to the employee and her co-workers, her employer
had blocked 9-1-1 access in favor of an in-house emergency number. Id. As
a result, emergency medical assistance was delayed, and the employee
suffered irreversible brain damage. Id. The employee’s spouse and children
sued the employer for negligently failing to warn about the blocked 9-1-1
access and for negligently interfering with a third person’s ability to render
aid. Id. The employer argued the exclusivity provision barred the civil suit.
Id. at 97, 912 P.2d at 1326. This court held that although the employee’s


                                      8
                            MARTINEZ v. SHC
                            Decision of the Court
“heart event” was not a compensable industrial injury, the employer’s
interference with 9-1-1 access together with the employee’s pre-existing
heart condition combined to produce the employee’s brain injury, and the
employer induced delay in accessing medical attention constituted an
accident that arose out of and in the course of the employee’s employment
as required by A.R.S. § 23-1021. Id. at 100, 912 P.2d at 1329. Therefore, the
exclusivity provision barred the family’s negligence claims against the
employer. Id. at 101-02, 912 P.2d at 1330-31.5

¶21           Here, similarly, SHC’s failure to inform Martinez of the x-ray
examination results combined with his non-compensable Hodgkin’s
lymphoma was a producing cause of his alleged inability to treat his
lymphoma sooner. SHC’s alleged actions need not be the sole cause of the
injury—it is enough that SHC’s alleged actions were a producing cause of
Martinez’s injury. Id. at 100, 912 P.2d at 1329 (industrial injury does not need
“to be the sole cause of the injury but merely must be a producing one”)
(quotations and citation omitted). Therefore, Martinez’s inability to
discover and treat his cancer sooner is based on circumstances that arose
out of and occurred during the course of his employment. The exclusivity
provision of the Act thus preempted Martinez’s negligence claim against
SHC.

¶22            In reaching this conclusion, we acknowledge a case not cited
by the parties either in the superior court or on appeal, Sill v. Indus. Comm’n,
12 Ariz. App. 6, 467 P.2d 81 (1970), which involved circumstances that, at
first blush, seem similar to the circumstances presented here. In Sill, the
employee, a registered nurse, was employed by an Arizona hospital. Id. at
7, 467 P.2d at 82. As a condition of her employment, the hospital required
her to have a yearly chest x-ray to determine the presence or absence of TB.
Id. The employee learned she was suffering from acute TB in 1966 as a
consequence of a chest x-ray taken that year. Id. The Industrial Commission
found she had not sustained a compensable industrial injury. Id. On appeal,
she argued “that an ‘accident’ arose when the radiologist employed by the
[hospital] failed to correctly diagnose her beginning symptoms of
tuberculosis which were evident, it is uncontradicted, in” a chest x-ray
taken in 1965. Id. at 8, 467 P.2d at 83. After analyzing what is an accident
arising out of and in the course of employment under the Act, this court
rejected the employee’s argument:


              5Although   the Act has unique provisions applicable to “heart-
related or perivascular” issues that were applicable in Dugan but are not
applicable here, that difference does not alter the applicability of Dugan to
the preemption issue presented here.


                                       9
                             MARTINEZ v. SHC
                             Decision of the Court
               The evidence in the instant case establishes that
               the petitioner had the disease in its beginning
               stages at the time of her first employment X ray.
               Thereafter, the disease became worse as the
               result of its natural progression and not due to
               any risk inherent in the employment. It is the
               opinion of the Court that the failure of the
               doctors to diagnose the tuberculosis was not an
               ‘accident’ within the meaning of the Workmen’s
               Compensation Act.

Id. at 8-9, 467 P.2d at 83-84.

¶23            Sill does not change our conclusion that Martinez’s
negligence claim against SHC arose out of an accident and in the course of
his employment for SHC. First, unlike the situation in Sill, SHC provided
preventive medical services to Martinez in connection with his actual
exposure to a potential occupational hazard while working, and the injury
he sustained occurred in the course of those preventive medical services.
Second, the conduct and injury alleged by the employee in Sill are different
from what Martinez alleged here. In Sill, the conduct and injury as framed
by the employee was whether the radiologist’s failure to correctly diagnose
her beginning TB symptoms in 1965 constituted an accident. Id. Here, the
conduct that formed the basis of Martinez’s medical negligence claim
against SHC occurred when he was being screened for TB after being
exposed to a potential occupational hazard while working for SHC as a
transporter, and the injury he alleged was that in failing to notify him of the
results of his chest x-ray, SHC and the radiologist injured him by depriving
him of the opportunity to discover and treat his cancer earlier. Third, and
perhaps most importantly, even if we were to consider these factual
distinctions immaterial, we cannot square the result reached in Sill with the
authorities discussed above concerning when an accident arises out of and
in the course of employment under the Act.

¶24            Martinez also argues the superior court should not have
granted summary judgment in favor of SHC because disputed issues of
material fact existed. Specifically, Martinez argues the parties’ dispute as to
whether he suffered an industrial injury constitutes a factual dispute.
Whether an employee’s injury arose out of and in the course of employment
is a question of law, however. Keovorabouth v. Indus. Comm’n, 222 Ariz. 378,
381, ¶ 8, 214 P.3d 1019, 1022 (App. 2009); see also supra ¶ 13. Further, the
parties do not dispute the material facts regarding Martinez’s exposure to
TB, the sequence of events that led to his x-ray, and its subsequent non-
disclosure. Thus, whether Martinez suffered an industrial injury is a legal


                                      10
                            MARTINEZ v. SHC
                            Decision of the Court
dispute, and for the reasons discussed above, the superior court properly
granted summary judgment.

IV.    The Dual Capacity Doctrine

¶25          Martinez also argues the superior court should not have
granted summary judgment in favor of SHC because SHC was acting as a
healthcare provider, not as his employer, under the dual capacity doctrine.
Under the dual capacity doctrine:

              [A]n employer who normally is shielded from
              tort liability by the exclusivity of workers’
              compensation may be held liable to an injured
              worker if the employer acted in a capacity
              which conferred on it obligations apart from
              those as an employer and the worker’s injury
              arose out of this other assumed role.

Dugan, 185 Ariz. at 101, 912 P.2d at 1330. Martinez specifically argues that
SHC stepped into the role of Martinez’s healthcare provider when it
directed Martinez to obtain the skin test and subsequent x-ray. Thus, he
argues SHC was acting on its obligations as a healthcare provider, not as
his employer.

¶26           Although Arizona courts have discussed the dual capacity
doctrine, no reported Arizona case has applied it, and indeed, in Hills v. Salt
River Project Assoc., 144 Ariz. 421, 425, 698 P.2d 216, 220 (App. 1985), this
court stated the doctrine was inconsistent with the exclusivity provision of
the Act and came close to rejecting it. See also Delbridge, 182 Ariz. at 53, 893
P.2d at 53 (collecting cases; dual capacity doctrine conflicts with public
policy and is contrary to the exclusivity provision). Even assuming,
however, that the doctrine has some viability in Arizona, the doctrine does
not apply here.

¶27            Under the dual capacity doctrine, an employer can be subject
to a tort claim only if the employer “possess a second persona so completely
independent from and unrelated to his status as employer that by
established standards the law recognizes it as a separate legal person.”
Dugan, 185 Ariz. at 101, 912 P.2d at 1330. SHC required Martinez to submit
to diagnostic TB testing to determine whether he had been exposed to a
work-related occupational hazard. Martinez did not independently seek
out medical care from SHC; SHC ordered the diagnostic testing because its
employee had been potentially exposed to TB while “on-the-job,” and the
testing was directly related to his employment as a transporter. At no time


                                      11
                          MARTINEZ v. SHC
                          Decision of the Court
did SHC act outside of its employment relationship with Martinez. See Diaz,
190 Ariz. at 552, 950 P.2d at 1173 (rejecting dual capacity doctrine when
employer did not assume role independent from that of employer during
attempt to rescue employee but simply assumed obligations it already
owed to employee as employer). Therefore, even if the dual capacity
doctrine remains viable under Arizona law, it is inapplicable here.

                              CONCLUSION

¶28           For the foregoing reasons, we affirm the superior court’s
summary judgment in favor of SHC. Pursuant to A.R.S. § 12-341 (2016), we
award SHC costs on appeal contingent upon its compliance with Arizona
Rule of Civil Appellate Procedure 21.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




                                       12
