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Joplin v. Industrial Commission3/2/1993
This is a special action review of an industrial commission award denying compensation for a nonindustrial auto accident occurring when petitioner employee ("claimant") was returning home from treatment for his industrial injury . Two issues are presented for review:
(1) Is an injury while traveling for treatment of an industrial injury compensable?
(2) Did claimant remove himself from coverage by a substantial deviation on his return home?
We find that injury while traveling for treatment of an industrial injury is compensable. We further find that there is sufficient evidence to support the A.L.J.'s finding that the claimant substantially deviated. Accordingly, we affirm the award.
I.
Claimant injured his left foot at work. His treating physician recommended physical therapy, which was performed at Phoenix Memorial Hospital on Seventh Avenue and Buckeye Road. Claimant resided in Buckeye, Arizona on Buckeye Road and commuted to the hospital three days a week.
On January 3, 1991, claimant suffered injuries in an auto accident while driving home several hours after a physical therapy session. He retained counsel and pursued a tort claim, which he subsequently settled without notice to or consent from the compensation carrier ("Fremont"). Claimant then retained his current workers' compensation counsel and claimed that his injuries in the auto accident were a compensable consequence of the industrial injury . When Fremont denied liability, claimant requested a hearing under Ariz.Rev.Stat.Ann. ("A.R.S.") section 23-1061(J) (1983).
At the hearing, claimant testified that he normally drove to the hospital on I-10 through the interchange (the "stack") to I-17 and exited at Seventh Avenue. According to claimant, he avoided the stack on his
return trip because of a prior accident. He instead normally took I-17 to Indian School Road, proceeded west to Seventy-fifth Avenue, and then took I-10 to Buckeye. He also testified that he could not eat before therapy because he sometimes became ill and that his wife wanted him to eat before returning home.
Claimant recalled driving to the hospital on the day of the auto accident but could not recall the circumstances of his physical therapy. The A.L.J., however, accepted testimony from Fremont's claims supervisor that Claimant had therapy from 8:00 a.m. to 8:45 a.m. According to claimant, he then made several telephone calls to medical supply stores to inquire about purchasing a paraffin bath, which his therapist had recommended for use at home. Claimant testified that before driving to a supply store on south Seventh Street, he drank a cup of coffee in his car. Once at the store, he waited about forty-five minutes for help. Although in his deposition he stated that he had ordered the bath, he testified at the hearing that he had only priced it.
Claimant also testified that after finishing his business at the store, he had another cup of coffee and then began his drive home. He proceeded on I-17 and exited at Indian School Road. He then drove west to 35th Avenue, stopping at a restaurant for a hamburger. According to claimant, while at the restaurant, he called Fremont to request authorization for the bath. Fremont produced evidence that claimant's doctor first prescribed the bath on January 15, 1991, and that claimant had first contacted Fremont about it on January 16th.
Claimant testified that he left the restaurant at about 1:00 p.m. and proceeded west on Indian School Road. About fifteen minutes later, while he was stop
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