California: Off-Duty Recreational Activity: The Fine Line Between Work- and Non-Work-Related

The facts in these types of cases typically dictate the result

In Simon v. City of Vacaville, 2015 Cal. Wrk. Comp. P.D. LEXIS --, a split WCAB panel rescinded the WCJ’s decision and held that the applicant police officer did not sustain a compensable injury while hiking off-duty with his large dog, a Great Dane. The dog pulled on the leash, causing the applicant to tumble 60 feet down a hill, strike a boulder, shatter his right shoulder, break four ribs and puncture his lung.

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The WCAB panel reasoned that compensation claims stemming from off-duty recreational/athletic activities are barred under Labor Code § 3600(a)(9) [LC 3600] and Ezzy v. W.C.A.B. (1983) 146 Cal. App. 3d 252, 194 Cal. Rptr. 90, 48 Cal. Comp. Cases 611 [48 CCC 611], if the employee’s subjective belief that the activity during which the injury occurred was an expectancy of his employment, was unreasonable.

Here, the applicant failed to prove that it was objectively reasonable for him to believe that his individual fitness plan with this employer, the City of Vacaville, covered hiking on a steep, unmaintained trail.

The evidence established that the employer put reasonable limits upon the types of activities covered under an individual fitness plan. It expressly provided that off-duty activities performed outside of the fitness plan guidelines and safety recommendations were “excluded from workers’ compensation coverage,” that “off-road cross country type running is not authorized,” and that “all running, jogging and walking must be performed on a sidewalk, city park, school athletic field or treadmill.”

According to the WCAB, all of these restrictions implied that off-road hiking on a steep, unmaintained trail was not covered. The WCAB believed that the employer’s limitation was reasonable given the increased exposure to injury in an off-road setting.

Commissioner Sweeney, dissenting from the majority panel, found that it was objectively reasonable for the applicant to subjectively believe he was acting in accordance with his individual fitness plan when he was injured. The applicant began his walk in a city park and believed he was still walking in a city park at the time of his injury, as there were no markings to indicate that the applicant, when he entered the trail, had crossed out of the city park into open space.

Commentary:

In recent years, there have been a number of cases dealing with public safety officers and “recreational” injuries. These cases can involve police officers, like in Simon, but can also involve firefighters, deputy sheriffs as well as correctional officers. These employees are most typically involved in these cases because physical fitness is commonly a required aspect of their job duties.

The applicable law in these cases is relatively straightforward. You have Labor Code Section 3600(a)(9) which basically bars the recovery for off-duty recreational, social or athletic activities and then you have the Ezzy case, infra, which basically holds that an injury is not considered work related unless the employee’s subjective belief that the activity was a required aspect his employment was objectively reasonable. If the employee maintained the subjective belief that the activity was required by his employment, and if that belief was objectively reasonable, then the activity is no longer “off-duty”.

Despite the relatively straightforward analysis applicable to these cases, it is interesting to note the significantly different outcomes that one sees in these cases. For example, jumping jacks are work related but lifting weights is not? Or, the SWAT team member running on vacation was work related but the CHP officer who was running 50 to 60 hours per week was not. The reason for these different outcomes is because the evaluation of whether the subjective belief was objectively reasonable is completely factually driven. The SWAT member may have had a fitness test coming up whereas the CHP may have been an avid runner on a personal level. Again, the facts typically dictate the result.

That was precisely the case in Simon. The Workers’ Compensation Administrative Law Judge (WCALJ) first concluded that the off-road hiking was work related. It was only after defendant’s petition for reconsideration and a review of the applicable law that he recommended that the activity be deemed off duty. The fact of the matter, as pointed out by the dissent in Simon, was that the employer had specifically authorized walking in a city park as a means of maintaining the employee’s required fitness level. Though applicant may have not been within the boundaries of the park at the time of his injury, he believed that he was. If the court of appeal focuses on the objective reasonableness of applicant’s subjective belief, it is quite possible the court of appeal could find the injury in Simon work related.

Read the Simon noteworthy panel decision.

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