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Off-Duty Slip/Fall On Trail Ruled Non-Industrial

Are police officers ever “off duty”?  In the case of Simon v. City of Vacaville, a split panel held “yes.”  Officer Simon, of the Vacaville PD, enjoyed the benefit of an “individual fitness plan” with his employer, which provided workers’ compensation coverage while running, jogging and walking, so long as these activities were performed on a sidewalk, in a city park, on a treadmill, or on an athletic field.

While off duty, applicant was walking with his wife in what he thought was Pena Adobe Park, but then followed a trail up until he slipped and fell, tumbling down 60 feet.  The fall resulted in a shattered right shoulder, four broken ribs, and a punctured lung.  Not exactly a “paper cut.

The issue of AOE/COE was brought to trial, and one of the main points of contention was whether the trail where the injury occurred was considered a “city park” and thus part of the individual fitness plan.  Applicant also had a back-up argument in play: even if this injury did not occur in a “city park,” as applicant is required to stay physically fit for his job, hiking should be covered as industrial even though there’s no specific coverage under the fitness plan.

Initially, the WCJ relied on the Court of Appeal’s opinion in the case of Ezzy v. WCAB (1983) 48 CCC 611, which held that if the injured worker subjectively believed the activity to be part of his duties and responsibilities, and this belief was reasonable, coverage should be extended.  He held that the injury should be covered as the activity does not fall into a specific exclusion of the plan (the plan banned off-road running, but this was a walk).

However, following defendant’s petition for reconsideration, the WCJ was persuaded by the subsequent authority, namely the case of Young, previously discussed on this blog.  The WCJ recommended that reconsideration be granted.

The split panel did just that – the majority held that Labor Code section 3600(a)(9) specifically excludes “voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.”

In this case, there was a fitness plan that specifically listed various physical activities which the employer considered to be part of the off-duty physical fitness plan.  The commissioners, as the WCJ, found that hiking on a trail would fall into such an exclusion, especially in light of the fact that the employer had outlined the sort of physical activities that would be expected in “off-duty” conditions to maintain physical fitness.

The dissent, however, would have found the injury compensable, assigning considerable weight to the fact that applicant started out his walk in a park, which was covered as part of the fitness plan, but ended up on a trail outside of the city park.  His subjective belief that he was still in the city park should have been controlling, the dissent reasoned.

Most employers are not law enforcement organizations – most are privately owned entities in various industries offering various services.  How can the reasoning in this decision help guide us to minimize exposure for workers’ compensation claims?  Often, the off-duty recreational activity issue rears its ugly head when employees engage in sports with other employees – pick-up basketball games, softball leagues in which various members of the same industry compete, etc.  Usually, the direct supervisor encourages employees to participate without much regard to the effect such participation would have upon workers’ compensation exposure (“It’s entirely voluntary, they don’t HAVE TO play monkey knife fight if they don’t want…”)

Perhaps this case can serve as a reminder for employers to clearly define what sort of off-the-clock activities are allowed or encouraged for employees, and which kind are not.  This may also serve as an opportunity to reminder supervisors and managers to confine encouragement to activities expressly approved by the employer – weight-lifting for security personnel might be good, but sky-diving might bear risk and expense which quickly outpaces its usefulness in serving as a night-club bouncer.  Baseball games are fun, of course, but 10/10 employers would rather keep their experience modification down.

Cheer up, dear readers, the best is still ahead!

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