Cardenas v. amavizca/special Fund

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID F. CARDENAS, SR.*, DAVID F. AND JANE DOE CARDENAS**,
AB PLUMBING, LLC***, D&C INVESTMENTS****, Petitioner Employers,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

JUAN M. CUEN AMAVIZCA (D’CD), Respondent Employee,

SPECIAL FUND DIVISION/NO INSURANCE SECTION, Respondent
Party in Interest.

No. 1 CA-IC 18-0027
FILED 2-7-2019

Special Action - Industrial Commission

ICA Claim No. 20170-270196**
20170-330001*
20170-330002****
20170-330003***
Carrier Claim No. NONE
Jacqueline D. Wohl, Administrative Law Judge

AWARD AFFIRMED

COUNSEL

Hendrickson & Palmer, P.C., Phoenix
By Adam P. Palmer
Counsel for Petitioner Employers
Industrial Commission of Arizona, Phoenix
By Jason M. Porter
Counsel for Respondent

Law Offices of Arthur V. Gage, P.C., Tucson
By Arthur V. Gage
Counsel for Respondent Employee

Special Fund Division/No Insurance Section, Phoenix
By Scott J. Cooley
Counsel for Respondent Party in Interest

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Lawrence F. Winthrop
joined.

T H O M P S O N, Judge:

¶1 This is a special action review of an Industrial Commission of
Arizona (ICA) award and decision upon review awarding the respondent
employee’s/decedent’s widow Alma Angelina Sanz-Mata (Mata) death
benefits. Three issues are presented on appeal:

(1) whether David F. Cardenas, Sr., was an employer subject
to the Arizona Workers’ Compensation Act

(2) whether the decedent’s injury arose out of his
employment; and

(3) whether the decedent was a domestic servant at the time
of his injury.

Because we find no legal error and the ALJ’s award is reasonably supported
by the evidence of record, we affirm.

I. JURISDICTION AND STANDARD OF REVIEW

¶2 This court has jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(2) (2016), 23-951(A) (2012), and
Arizona Rule of Procedure for Special Actions 10 (2014). In reviewing

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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 (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 (App. 2002).

II. PROCEDURAL AND FACTUAL HISTORY

¶3 On November 6, 2016, the decedent was attacked and killed
by a day laborer working with him on a rental property owned by David F.
Cardenas, Sr. (Cardenas). At the time of his death decedent was using
clothing, tools and equipment supplied by AB Plumbing, LLC, a business
owned by Cardenas. Neither Cardenas nor AB Plumbing had workers’
compensation insurance coverage. Decedent’s widow filed a claim for
dependent’s benefits, which was accepted by the respondent party in
interest, Special Fund Division/No Insurance Section (Special Fund).
Cardenas timely protested and requested an ICA hearing. The ALJ
subsequently held hearings for testimony from Mata and Cardenas.

¶4 Mata testified that the decedent regularly worked for
Cardenas as a handyman performing plumbing, electrical work, and
remodeling. She stated that her husband collected rents and served eviction
notices for several rental units owned by Cardenas, and he also periodically
worked for Cardenas’s plumbing business, AB Plumbing. Mata testified
that Cardenas paid the decedent $10 per hour in cash, once a week.
Cardenas also provided the decedent with a uniform and use of an AB
Plumbing work truck, which the decedent picked up and dropped off daily
at Cardenas’s house. Mata stated that when one of Cardenas’s projects
required a day laborer, the decedent would pick one up at a Tucson church.

¶5 Mata testified that Cardenas paid the decedent to work at a
rental property on Ft. Lowell Road on Friday, November 4, and Saturday,
November 5, 2016. On Sunday, November 6, 2016, the decedent was again
scheduled to work at the Ft. Lowell property, and he left for work wearing
his company uniform. Police detectives came to her house later that day
and told her that her husband was dead. Mata filed voluminous
documentary evidence in support of her testimony, including daily notes
the decedent made regarding jobs he performed for Cardenas and AB
Plumbing and rental receipts for the rents he collected.

¶6 Cardenas testified that the decedent was an illegal alien, so he
could not legally hire him. Instead, he entered a “reciprocal agreement”

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with the decedent whereby the decedent worked for Cardenas in exchange
for housing and monthly expenses. Cardenas stated that ninety-five percent
of the time, the decedent worked for and was paid by AB Plumbing, and
AB provided the decedent with work clothes,1 tools and a truck.

¶7 Cardenas testified that on November 4, and 5, 2016, the
decedent worked on behalf of AB Plumbing at his Ft. Lowell property
laying sewer pipe for the bathrooms. On November 6, 2016, the decedent
was supposed to continue working on the same job, this time laying a floor
over the pipes. Cardenas indicated that decedent’s work for this project
would be paid by AB Plumbing, which in turn would bill Cardenas for the
project. Cardenas stated that he directed the decedent to pick up a day
laborer to help him perform that work. Cardenas agreed that the decedent
was wearing his AB-provided work clothes and driving an AB truck at the
time of his murder.

¶8 Below, Cardenas testified that he did not employ the
decedent. Cardenas also argued that AB Plumbing did not have employees
and stated it did not carry workers’ compensation insurance. Cardenas
testified that any work the decedent performed for him was on a contract
basis, and he paid the decedent by the job. Cardenas testified that he owns
eight rental units, which he takes care of himself. He testified that the
decedent helped him with his rentals “in a minimal way,” because they
were close friends.

¶9 At the end of the hearings, the parties filed post-hearing
memoranda. The ALJ found decedent was employed by both Cardenas,
individually and as part of the marital community, and AB Plumbing and
entered an award for a compensable claim.2 Cardenas timely requested
administrative review, but the ALJ summarily affirmed the award.
Cardenas next brought this appeal.

¶10 On appeal, petitioners concede decedent was an employee of
AB Plumbing, but deny he was also employed by Cardenas, or that the
assault and resulting death arose out of any employment activity.
Cardenas asserts there is no evidence that on the day of the murder,
decedent worked for Cardenas either individually, as part of the marital
community, or as the owners of the Fort Lowell rental property.

1 The work clothes did not have a logo identifying AB Plumbing.

2 D&C Investments was dismissed from this claim.

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III. DISCUSSION

¶11 When an employee is killed because of a compensable
industrial injury, his dependents are entitled to receive death benefits
pursuant to the Arizona Workers’ Compensation Act. See A.R.S. § 23-
1021(A). A benefit applicant must prove all elements of a compensable
claim. Toto v. Indus. Comm’n, 144 Ariz. 508, 512 (App. 1985). Dependents
filing for death benefits must show that the death resulted from an accident
arising out of and in the course of employment. Gaumer v. Indus. Comm’n,
94 Ariz. 195, 199 (1963).

¶12 Petitioners first argues that the ALJ erred by finding that he
was the decedent’s employer at the time of his assault, because the decedent
worked solely for AB Plumbing. Cardenas asserts that he did not regularly
employ any workers in a “trade, business, profession or occupation.” See
A.R.S. ' 23-902(A). Mata responds that at the time of the assault, the
decedent was working on one of Cardenas’s rental properties, and the
decedent was also robbed of rent money that he had collected the night
before for Cardenas.

¶13 The record demonstrated that Cardenas had eight rental
units, and at Cardenas’ direction and expense the decedent collected rent,
served eviction notices, and performed repairs on those properties.
Cardenas testified that the decedent would “report when the tenants would
complain they had a leaky roof or a problem with a door… and
sometimes… he would repair the item on his own and tell me that… he
took care of it.”

¶14 The ALJ found that the decedent was injured while working
on a rental property owned by Cardenas, and that the decedent performed
both plumbing and other construction work on Cardenas’s rental
properties. The ALJ specifically found the decedent’s wife credible when
she “testified that the… [decedent] worked both for the defendant’s
plumbing company and for the defendant’s benefit on the rental
properties.” We conclude that the record contains reasonable evidence to
support the finding that one of Cardenas’s “usual” businesses involved the
renovation and rental of properties and that he employed the decedent in
this endeavor.

¶15 Petitioners next argue that the decedent’s death did not arise
out of his employment, because there is no evidence that the assault was
related to the work activity. See, e.g., Colvert v. Indus. Comm’n, 21 Ariz. App.
409, 410-11 (1974) (assault-related injuries are compensable if altercation

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arises out of a work-related dispute). The Arizona’s Workers’
Compensation Act provides compensation for injuries that arise out of and
in the course of claimant’s employment. See A.R.S. ' 23-1021(A); Finnegan
v. Indus. Comm’n, 157 Ariz. 108, 110 (1988).

¶16 “Arising out of” refers to the origin or cause of the injury,
while “in the course of” refers to the time, place, and circumstances of the
injury in relation to the employment. See, e.g., Peter Kiewit Sons’ Co. v. Indus.
Comm’n, 88 Ariz. 164, 168 (1960); Scheller v. Indus. Comm’n, 134 Ariz. 418,
420 (App. 1982). These factors are part of a single test of work connection
and must be considered together. See Noble v. Indus. Comm’n, 188 Ariz. 48,
52-53 (App. 1996); Lex K. Larson, et. al., Larson’s Workers’ Compensation Law
§ 29.01, at 29-2 to -7 (2018).

¶17 To “arise out of the employment,” the injury must result from
some risk of the employment or be incidental to the discharge of the duties
thereof. Lane v. Indus. Comm’n, 218 Ariz. 44, 47 ¶ 10 (App. 2008). Whether
an activity is related to the claimant’s employment depends upon the
totality of the circumstances and, as directed by our supreme court, requires
an inquiry into the following:

Did the activity inure to the substantial benefit of the
employer? … Was the activity engaged in with the permission
or at the direction of the employer? … Did the employer
knowingly furnish the instrumentalities by which the activity
was to be carried out? … Could the employee reasonably
expect compensation or reimbursement for the activity
engaged in? … And, finally, was the activity primarily for the
personal enjoyment of the employee?

Delgado v. Indus. Comm’n, 183 Ariz. 129, 131 (1994).

¶18 In this case, the evidence established that the decedent had
steadily worked for Cardenas for many years. For two days prior to the
assault, he had been laying sewer pipe at a rental property owned by
Cardenas. According to Cardenas, decedent’s work benefitted AB
Plumbing, as Cardenas would pay AB Plumbing for decedent’s work. On
the day of the assault, the decedent was supposed to complete that project
by installing a floor over the new pipes. Cardenas told him to pick up a day
laborer on the way to the job site to help. While installing the floor, the
decedent was assaulted and robbed by the day laborer. He subsequently
died from his injuries. The necessity of using a day laborer to help with the
floor was at the express direction of Cardenas and was both a risk of the

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decedent’s employment and incidental to the discharge of his employment
duties.

¶19 Regarding the circumstances surrounding this activity, the
work on the rental property inured to Cardenas’s substantial benefit
because the sooner the renovations were completed, the sooner the
property could begin to earn rental income. Cardenas spoke to the decedent
on the morning of the assault and directed him to pick up a day laborer on
his way to the rental property. For that reason, the decedent acted with
Cardenas’s permission and at his direction. The evidence also established
that Cardenas/AB Plumbing provided the truck and tools the decedent
used for his work on the rental property. The decedent’s widow testified
that Cardenas had paid her husband for the previous two days of work at
the same property, so there was a reasonable expectation that Cardenas or
AB Plumbing would pay the decedent for his work on the floor. There is
no evidence that the work was either donated or for the decedent’s personal
enjoyment.

¶20 In this case, the decedent’s injury arose out of working alone
with an unknown day laborer whose assistance was required to install a
floor at Cardenas’s rental property. The injury occurred at the job site,
during work hours, while the decedent was working. Further, the totality
of the circumstances establish that the activity was related to the decedent’s
employment. We conclude that there is sufficient evidence to support the
ALJ’s finding that the assault arose out of employment.

¶21 Cardenas last argues that the decedent was a domestic
servant, and therefore, statutorily excluded from receiving workers’
compensation benefits. See A.R.S. ' 23-902(A). He cites Griebel v. Industrial
Commission, 133 Ariz. 270 (App. 1982), in support of this argument. In
Griebel, a wealthy family employed a groundskeeper/handyman to care for
their multiple residences. When the groundskeeper was killed in a motor
vehicle accident, his widow brought a claim for death benefits. Her claim
was denied, and on appeal, this court affirmed. We held:

If the master is regularly using his servant’s labor in a
commercial enterprise, that is, attempting to profit in an
entrepreneurial capacity from the labor of the servant, then
the master is an “employer” within the A.R.S. ' 23-902(A)
definition…. On the other hand, if the master is the sole
consumer of the servant’s labor, and that labor is directed to
the construction, maintenance or repair of the master’s

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private properties or care of the master’s family, and that
labor is not within the usual trade, business, profession or
occupation of the master, then the servant is a “domestic
servant” under the A.R.S. ' 23-902(A) exemption.

133 Ariz. at 273.

¶22 Cardenas argues that he did not operate a rental business, nor
did he make any income from his rental properties. In this case, the ALJ
impliedly rejected Cardenas’s argument that he did not have a rental
property business when he specifically adopted the widow’s contrary
testimony. See Pearce Dev. v. Indus. Comm’n, 147 Ariz. 582, 583 (1985) (ruling
that factual findings can be implicit in an ALJ’s award). We conclude that
this finding was supported by the evidence of record. For these reasons, this
court’s opinion in Griebel supports the ALJ’s award, and the decedent was
not Cardenas’s domestic servant.

¶23 For all the foregoing reasons, we affirm the ALJ’s award
against David F. Cardenas, Sr., David F. Cardenas, Sr. and Jane Doe
Cardenas, and AB Plumbing.

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

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