(dissenting).
Compensation is being approved for an accident which occurred off the employer’s premises, while the employee was engaged in a personal recreational activity on his noontime luncheon break. In my opinion, such a decision is not in accord with the principles enunciated in Pauley v. Industrial Commission, supra, and can find no support in Arizona industrial law. The factual determinations of the majority opinion that the accident was an “employment related activity” are not in accord with the following findings of the hearing officer:
“5. That the subject industrial injury did not occur on the employer’s premises, and the recreation in which the applicant was involved was not a regular incident of employment, but was engaged in, or refrained from, at the employee’s pleasure and on a voluntary basis.
“6. That the applicant was on an unpaid lunch hour. That the applicant was free to remain on the premises for lunch or to go elsewhere, as he might choose.
“7. That the defendant employer did not expressly or impliedly make participation in lunchtime athletics or recreation a part of the employee’s services or duties.
“8. That the defendant employer did not derive any substantial direct benefit from the recreational activity in which the applicant was involved at the time of his injury.”
I believe these findings are clearly supported by the evidence and should not be set aside. See Valdon v. Industrial Commission, 103 Ariz. 547, 447 P.2d 239 (1968).
In Pauley, the employee was injured while crossing a ditch in a park adjacent to the employer’s premises for the purpose of buying ice cream for her personal use. In addressing himself to the off-premise injury, Justice Struckmeyer stated:
“fWjhere an employee is free to leave his employer’s premises for a limited period for lunch or refreshments and he suffers an injury while off the employer’s premises, he is not from these facts alone in the futherance [sic] of his employment and his injury is not subject to a hazard arising out of the employment when off the employer’s premises. [Citations omitted] We' recognize that there is a distinct, modern trend to en*428large the area of compensation to injuries occurring while off the employer’s premises, [citation omitted] but we think workmen’s compensation should not be expanded to injuries sustained while off the employer's premises, when the hazards encountered are not peculiarly within the employer's control.” 109 Ariz. at 302, 508 P.2d at 1164. (Emphasis added.)
The Court in Pauley acknowledged that the result would have been different had it been established that the ditch was upon the employer’s premises. It is rather ironic to note that under Pauley, which established the on-premises exception to the “going and coming” rule, if the employee here had been on his way to work at the time and place he sustained his injury, it would have been non-compensable. Can it be that a noontime recreational activity occurring on a lot adjacent to the employer’s premises is a more “employment related” activity than going to work across the same lot? The facts in the case before us do not justify such an assault on the rationale and dictum of Pauley.
The majority opinion cites 1 Larson’s Workmen’s Compensation Law, § 22, as supporting its conclusions. An examination of this section of the treatise, however, reveals that the instant factors do not support any of the requirements therein. Larson’s first test in discussing recreational injuries is that the accident “[o]ccur on the premises . . . as a regular incident of the employment.” This accident did not occur on the employer’s premises.
An alternative test set forth by Larson is that “The employer, by expressly or impliedly requiring participation brings the activity within the orbit of the employment.” (Emphasis added.) Again, the employer did not require participation in noon hour athletics, either expressly or impliedly, and did not make the activity part of the employee’s services to be performed.
Under the third alternative test set forth by Professor Larson there was no showing here that the employer “[derived] substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreational and social life.” (Emphasis added).
The petitioner did not carry his burden of showing the recreational activity he was engaged in at the time of his injury was part of his employment, even accepting the tests set out in Larson as the applicable law in Arizona. The decision rendered today places Arizona in the anomalous position of having an “on-premise” requirement for injuries sustained while having lunch, Nicholson v. Industrial Commission, supra, Royall v. Industrial Commission, supra; going to or coming from work, Pauley, supra; engaging in personal comfort acts, Pauley, supra, Nicholson, supra, Pottinger v. Industrial Commission, 22 Ariz.App. 389, 527 P.2d 1232 (1974); but not as to engaging in noontime recreational activities.
In 1 Larson’s Workmen’s Compensation .Law, § 22.11 the following statement is found:
“It has been repeatedly and consistently observed that in borderline course-of-employment situations, such as going and coming, or having lunch, the presence of the activity on the premises is of great importance. Consistency is maintained by applying the same distinction to recreation cases: recreational injuries during the noon hours on the premises have been held compensable in the majority of cases, while, as noted in connection with the other situations mentioned, there is a tinge of the arbitrary about this distinction; there is also a sound basis in both theory and reality for it.” (Emphasis added).
Larson, supra, § 22.00, also notes :
“A comparatively recent development in the ‘employment environment’ is the widespread and increasing prevalence of recreational activities sponsored, encouraged, or permitted in varying degrees by employers. These activities range all the way from financing a world famous bas*429ketball team to holding a three-legged race at the company picnic. Although the cases in this field are relatively new, the principles at stake are closely analogous to those which have been discussed in connection with lunchtime injuries going and coming and personal comfort cases . . . . ”
It is of course true that there is no “rule of thumb" that an injury is compensable merely because it was incurred during working hours or within the linear measurements of the employer’s premises. Royall, supra. It is also true that more and more generous expansions of coverage appear in the cases. Furthermore, it has become an axiom that the Compensation Act should be given a liberal construction with a view to effectuating the evident principle of placing the burden of death and injury upon industry. Clearly we are in an area where there can be no categorical test. Much compensation law has grown up around factual rather than legal classifications, and the difficulty of the case at bar is enhanced by the absence of judicial precedent in this jurisdiction. The problem lies in applying the requisite principles of law to the facts, especially when, as here, the accident is not due to a risk inherent in the nature of the employment but is merely incidental thereto.
But it is readily apparent that each of the Arizona decisions on the subject is threaded with the proposition that activities which are only incidental to the performance of the employee’s duties, such as seeking personal comfort, going to or coming from work, engaging in recreation and the like, fall completely short of satisfying the “course of employment” test unless they occur on the premises of the employer. The decision laid down today clouds this line of demarcation.
The fact that the employer here consent ed to or even encouraged the game of catch being played is not enough. The activity was not even on his land. Since the employee was free to leave the premises at noontime he could engage in any activity he wished. Further, he was not required or expected to play ball as a part of his employment and he did so at his pleasure and on his own time.
We are constantly paying lip service to the proposition that the Workmen’s Compensation Act is not a general health and accident insurance policy. I would find it difficult to insert that phrase into the decision being rendered by this court. The act is being given the generous interpretation proscibed by our Supreme Court in Nicholson.
I would affirm the award.