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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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).
MARTINEZ v. SHC

Decision of the Court

3

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.
MARTINEZ v. SHC

Decision of the Court

4

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, nofault 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 
MARTINEZ v. SHC

Decision of the Court

5

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 
MARTINEZ v. SHC

Decision of the Court

6

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).
MARTINEZ v. SHC

Decision of the Court

7

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.”
MARTINEZ v. SHC

Decision of the Court

8

¶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 
MARTINEZ v. SHC

Decision of the Court

9

“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 “heartrelated 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.
MARTINEZ v. SHC

Decision of the Court

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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 nondisclosure. Thus, whether Martinez suffered an industrial injury is a legal 
MARTINEZ v. SHC

Decision of the Court

11

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 
MARTINEZ v. SHC

Decision of the Court

12

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.