corecivic/aiu Insurance v. Wallace

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CORECIVIC INC, Petitioner Employer,

A I U INSURANCE CO, Petitioner Carrier
v.

THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,

MICHAEL WALLACE, Respondent Employee.

No. 1 CA-IC 25-0030
FILED 06-16-2026

Special Action - Industrial Commission
ICA Claim No. 20241100036
Carrier Claim No. CO-24-300568
The Honorable Kenneth Joseph Hill, Administrative Law Judge

AFFIRMED

COUNSEL

Ritsema Law, Phoenix
By Bobby Wren
Counsel for Petitioner Employer and Carrier

Industrial Commission of Arizona, Phoenix
By Afshan Peimani
Counsel for Respondent ICA

Ahwatukee Legal Office PC, Phoenix
By David L. Abney
Co-Counsel for Respondent Employee

CORECIVIC/AIU INSURANCE v. WALLACE
Decision of the Court

Matt Fendon Law Group, Phoenix
By Matt C. Fendon
Co-Counsel for Respondent Employee

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Judge Jennifer M. Perkins joined.

P A T O N, Judge:

¶1 CoreCivic, Inc. and AIU Insurance (collectively,
“Petitioners”) appeal an Industrial Commission of Arizona (“ICA”) award
finding a compensable injury to Michael Wallace. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On review, we consider the evidence in the light most
favorable to upholding the award, Lovitch v. Indus. Comm’n, 202 Ariz. 102,
105, ¶ 16 (App. 2002), and we deferentially review all factual findings made
by the Administrative Law Judge (“ALJ”), PFS v. Indus. Comm’n, 191 Ariz.
274, 277 (App. 1997).

¶3 Wallace worked as an assistant warden at the Central Arizona
Correctional Complex in Florence, Arizona, which is operated by
CoreCivic. The complex houses inmates and detainees for various
jurisdictions and law enforcement agencies. Senior officers, including
assistant wardens, were assigned each week on a rotating basis as the
Administrative Duty Officer (“ADO”). The assigned ADO was responsible
for responding to emergencies and was therefore “on call” 24 hours a day
and required to respond to text messages and phone calls at any time. Being
“on call” also required the ADO to be “of sound mind” and within 60 to 90
minutes’ driving distance of the complex throughout the entire week.
Additionally, the ADO was responsible for ensuring protocol compliance
by making rounds both at the complex and offsite facilities where inmates
were being treated. For example, the ADO was required to visit any inmate
hospitalized offsite within 72 hours of admission and every 72 hours
thereafter, until the inmate was discharged.

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CORECIVIC/AIU INSURANCE v. WALLACE
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¶4 Wallace was the assigned ADO when he was injured on
March 29, 2024. Wallace arrived at the complex around 7:30 a.m. and
attended a morning meeting there. He then left in a company vehicle to
check on hospitalized inmates and their accompanying guards. He visited
four or five hospitals over the next few hours, then attended a community
service event as required by CoreCivic. Afterwards, he returned the
company vehicle to the complex and switched to his own car to conduct his
last hospital check of the day at Florence Anthem Hospital (“Florence
Hospital”). CoreCivic allowed ADOs to use their own cars or company
vehicles for hospital checks. Because Florence Hospital was on his route
home, Wallace chose to use his own car so he could go straight home
afterward.

¶5 Wallace was on his way to Florence Hospital at around 8:05
p.m. when he heard an incoming text alert from his company-issued phone,
which had fallen from the car’s center console to the passenger floorboard.
Wallace believed the message was from a shift captain who he had been
communicating with throughout the day about an inmate engaging in self-
harm. As he reached down to grab his phone, he lost control of the car. It
swerved off the road and rolled over. The crash severed Wallace’s spinal
cord, rendering him quadriplegic.

¶6 Wallace filed a claim for workers’ compensation, which
Petitioners denied. It turned out there was no inmate to check on at
Florence Hospital that day; the last inmate there had been discharged five
days before the accident and prior to Wallace assuming the ADO role that
week. It also turned out this information was contained in an email sent to
a group of employees, including Wallace, a few hours before the accident.
That email listed three currently hospitalized inmates, none of whom were
at Florence Hospital.

¶7 The ICA held an evidentiary hearing to determine
compensability. Wallace testified he could not remember why he thought
there was an inmate at Florence Hospital but speculated he might have been
thinking of the inmate who had been there a few days prior. He testified
he did not see the email indicating that inmate had been discharged.

¶8 Wallace, his supervisor, and two other CoreCivic officers
testified that a list of hospitalized inmates was sent out once or twice a
week, but that ADOs also learned where inmates were hospitalized
through other means, including through an offsite post checklist, emails
from the medical department, visiting the shift supervisor’s office, and

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CORECIVIC/AIU INSURANCE v. WALLACE
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checking with security staff. Wallace testified that his usual practice was to
check with the captains the day before making his rounds.

¶9 An ALJ found Wallace’s injury arose out of and in the course
of his employment. The ALJ found Wallace credibly testified that he was
traveling to Florence Hospital to check on an inmate who he believed was
there, even though “the weight of the evidence establishe[d] that there was
not[]” an inmate there. Because “he was traveling to the hospital as part of
his work duties” when the accident occurred, Wallace was injured in the
course of employment. The ALJ therefore found Wallace’s injury
compensable.

¶10 Petitioners requested reconsideration, arguing that no
reasonable evidence supported the ALJ’s finding that Wallace was on his
way to visit an inmate at Florence Hospital because there was no inmate
there. Petitioners further claimed the ALJ created a presumption of
compensability for any employee who simply “believed” he or she was
working, thus shifting the burden to the employer to prove the employee
was outside the course of employment. The ALJ summarily affirmed the
award.

¶11 Petitioners requested special action review. We have
jurisdiction under Arizona Revised Statutes (“A.R.S.”) Sections 12-
120.21(A)(2) and 23-951(A).

DISCUSSION

¶12 To be entitled to workers’ compensation, a claimant must
show that his injury “arose out of and in the course of employment.”
Keovorabouth v. Indus. Comm’n, 222 Ariz. 378, 381, ¶ 7 (App. 2009) (citation
omitted) (internal quotation marks omitted); A.R.S. § 23-1021. Whether an
injury “arose out of and in the course of employment” is a legal question
we review de novo. Finnegan v. Indus. Comm’n, 157 Ariz. 108, 109 (1988).
But we defer to the ALJ’s factual findings unless unsupported by any
reasonable theory of the evidence. Perry v. Indus. Comm’n, 112 Ariz. 397,
398-99 (1975).

¶13 Petitioners confirmed at oral argument they do not dispute
that Wallace’s injury arose out of his employment; they only contend that
Wallace was not injured “in the course of” employment. Petitioners argue
that the ALJ created a presumption that an employee was within the course
of employment if he simply believed that he was. They claim this
impermissibly shifted the burden to Petitioners to prove Wallace was not
within the course of employment. Petitioners further contend the ALJ’s

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finding that Wallace was credible was not supported by substantial
evidence.

¶14 “In general, an accident ‘arises out of’ employment if its origin
or cause is work-related; it occurs ‘in the course of employment’ if the time,
place, and circumstances of injury are employment related.” Bergmann
Precision, Inc. v. Indus. Comm’n, 199 Ariz. 164, 166, ¶ 9 (App. 2000). “An
injury occurs in the course of employment if the employee was injured
when he or she was doing what the employee ‘may reasonably do within a
time during which [the employee] is employed and at a place where [the
employee] may reasonably be during that time.’” W. Millwork v. Indus.
Comm’n, 256 Ariz. 177, 183, ¶ 26 (App. 2023) (citation omitted). And “an
injury arising out of employment almost necessarily occurs in the course of
it.” Royall v. Indus. Comm’n, 106 Ariz. 346, 349 (1970).

¶15 When “travel is essentially part of the employment, the risk
[of injury during activities necessitated by travel] remains an incident to the
employment”—even if the employee is not actually working at the time of
the injury. Bergmann, 199 Ariz. at 167, ¶ 13 (citation omitted). Traveling
employees therefore “remain within the course of employment
continuously during their travel” absent “a distinct departure on a personal
errand.” Id. at 166, ¶ 10 (citation omitted).

¶16 The ALJ did not err in finding Wallace was within the course
of his employment while driving to Florence Hospital. A substantial part
of an ADO’s duties included traveling to various offsite locations “all over
the [] state” to ensure guards were following protocol. So for the assigned
ADO, “travel is essentially part of the employment.” Id. at 167, ¶ 13. And
Wallace was injured while traveling to perform a hospital check, a duty
required by his role as an ADO. See Royall, 106 Ariz. at 350 (“The type of
activity which most clearly satisfies the ‘course’ test is the active
performance by the employee of the specific duties which he was engaged
to perform.”); cf. Burnett for Burnett v. Indus. Comm’n, 158 Ariz. 548, 548-49,
552 (App. 1988) (employee remained in the course of employment despite
throwing merchandise at and wrestling a disorderly customer in violation
of store policy because he was attempting to restore order in the store, as
required by his job duties).

¶17 Petitioners contend that this particular trip to Florence
Hospital was unnecessary, so Wallace was not “actually” working; he only
believed he was. But Wallace’s job required him to travel to various
hospitals and the ALJ made the factual finding that he was traveling to a
hospital for a work purpose. Given this finding, to deny him compensation

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merely because he was mistaken about where to go would inject a fault
consideration into the no-fault worker’s compensation system. See, e.g.,
Circle K Store No. 1131 v. Indus. Comm’n, 165 Ariz. 91, 96 (1990) (“[F]ault
concepts have no bearing on whether or not worker’s compensation should
be awarded . . . .”).

¶18 Further, a traveling employee remains in the course of
employment, even if he was not actually working at the time of injury,
absent a “substantial deviation” from the course of employment. CRST Int’l
v. Indus. Comm’n, 254 Ariz. 115, 119, ¶ 17 (App. 2022); Bergmann, 199 Ariz.
at 167, ¶ 13. And “[t]o constitute a deviation, the activity must be ‘so remote
from customary or reasonable practice that . . . [it] cannot be said to be [an]
incident[] of the employment.’” Bergmann, 199 Ariz. at 168, ¶ 19 (quoting 2
Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law §
21.08[1], at 21-43). “Whether a deviation from covered employee travel is
substantial is generally a question for the fact-finding body.” Joplin v. Indus.
Comm’n, 175 Ariz. 524, 526 (App. 1993).

¶19 The ALJ found that the fact “[t]hat [Wallace] was mistaken
about an inmate being at the hospital [wa]s not sufficient to remove [him]
from the course of the employment.” Petitioners argue this finding shows
that the ALJ improperly put the burden on Petitioners to prove Wallace was
not within the course of his employment. Not so. By concluding Wallace
was not “remove[d]” from the course of employment, the ALJ inherently
found that Wallace did not substantially deviate from his course of
employment by acting on a mistaken belief that there was an inmate at
Florence Hospital. And this finding is not clearly erroneous.

¶20 The ALJ found that Wallace credibly testified that he was
driving to Florence Hospital because he believed there was an inmate there,
even though he could not remember why he believed so. The ALJ “is the
sole judge of witness credibility.” Holding v. Indus. Comm’n, 139 Ariz. 548,
551 (App. 1984). And, contrary to Petitioners’ assertion, sufficient evidence
supports the ALJ’s credibility finding. Wallace’s supervisor testified that
he knew Wallace to be honest and truthful. Wallace was in fact on a route
that led to Florence Hospital on a day that he needed to complete hospital
checks. Florence Hospital was one of the locations where inmates could be
hospitalized; indeed, an inmate had just been discharged from there a few
days earlier. Wallace testified that he did not see the email listing the
current offsite inmates, as well as indicating that the Florence Hospital
inmate had been discharged. Other CoreCivic employees confirmed that
the email was not the only source of communication regarding where
inmates were hospitalized. Further, Petitioners acknowledged at oral

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argument that Wallace had no personal reason to go to Florence Hospital.
See State Comp. Fund v. Keefe, 22 Ariz. App. 311, 314 (1974) (finding
employee’s magazine writing was within the course of his employment and
“not merely for his own personal enjoyment”). On this record, Wallace’s
conduct was not “so unreasonable that it amounted to a deviation from the
course of employment.” See Bergmann, 199 Ariz. at 168, ¶ 18.

¶21 In their reply brief, Petitioners argue that Wallace’s injury is
not compensable under the “going and coming rule,” which provides that
“[a]ccidents that occur when an employee is going to or from work
ordinarily are not within the course of employment.” CRST, 254 Ariz. at
120, ¶ 23 (citation omitted). But “issues not ‘clearly raised’ in the opening
brief are waived.” Meiners v. Indus. Comm’n, 213 Ariz. 536, 538 n.2 (App.
2006). Waiver aside, their argument fails. The going and coming rule
“applies when ‘the employee has a definite place and time of work.’” CRST,
254 Ariz. at 120, ¶ 23 (citation omitted). Wallace did not have a “definite
place and time of work” during his ADO week. He was on the job as a
traveling employee—and therefore in the course of his employment—when
he was injured. See id. at 120-21, ¶¶ 22-24.

CONCLUSION

¶22 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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