City of Stockton v. Wcab

38 Cal.Rptr.3d 474

135 Cal.App.4th 1513

CITY OF STOCKTON et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Sean Jenneiahn, Respondents.

No. C050085.

Court of Appeal, Third District.

January 27, 2006.

Law Office of Joseph J. Barlupo and Hector M. Jorrin for Petitioners.

Mastagni, Holstedt, Amick, Miller, Johnsen & Urhammer, Frolan R. Aguiling and Michael Amick, Sacramento, for Respondent Sean Jenneiahn.

SCOTLAND, P.J.

This case poses the question whether a police officer who injured his leg while off duty, playing in a pickup game of basketball at a private facility, is entitled to workers' compensation benefits.

A workers' compensation judge (WCJ) concluded the injury arose out of and occurred in the course of the police officer's employment because, in the WCJ's view, the officer reasonably believed that "his participation in cardiovascular activities such as basketball were [sic] expected by his employer." In a two-to-one decision, the Workers' Compensation Appeals Board denied the employer's petition for reconsideration.

The police officer's employer then petitioned for, and we issued, a writ of review. We now shall annul the award of workers' compensation benefits.

As we will explain, when an employee is injured during voluntary, off-duty participation in a recreational, social, or athletic activity, Labor Code section 3600, subdivision (a)(9) provides that the injury is not covered by workers' compensation, unless the activity was "a reasonable expectancy of" the employment or it was "expressly or impliedly required by" the employment. General assertions that the employer expects an employee to stay in good physical condition, and that the employer benefits from the employee's doing so, are not sufficient for worker's compensation coverage since that would impose virtually limitless liability for any recreational or athletic activity in which the employee chooses to participate — a result that would run afoul of the limitation set forth in Labor Code section 3600, subdivision (a).

Turning to the facts of this case, we conclude the evidence does not support a finding that Officer Jenneiahn subjectively believed that his employer expected him to engage in an occasional pickup game of basketball in order to stay in shape. In any event, such a subjective belief would have been objectively unreasonable under the circumstances here. Thus, it cannot be said that the specific activity during which he was injured was a reasonable expectancy of, or was expressly or impliedly required by, his employment. For this reason, the Workers' Compensation Appeals Board erred in concluding that Jenneiahn's injury was covered by workers' compensation.

FACTS

Sean Jenneiahn is employed as a police officer by the City of Stockton (the City). He engages in additional employment by officiating at high school basketball and baseball games.

The City's police department has a regulation stating that police officers shall maintain good physical condition. However, after an officer is hired, the department does not require any physical fitness tests or examinations. According to the record in this case, no officer has ever been fired or otherwise disciplined for not being physically fit.

Officer Jenneiahn was not aware of the regulation requiring physical fitness, although he remembered that the application for employment said an officer must be physically fit to do the job. Some of his training officers advised him to stay in shape, and Jenneiahn believed that officers should remain physically fit. He did so by jogging and running, doing cardiovascular workouts, and playing basketball and softball.

The City's police officers are not given time to work out while on duty. However, in the basement of the police department, the City maintains a gymnasium and workout facility that is available for officers' use. Officer Jenneiahn did not use the department's facility because he preferred to work out elsewhere when he was not on duty.

While off duty and playing in a basketball game, Officer Jenneiahn hyperextended his leg and suffered a fracture of the tibia plateau.

The facility where the injury occurred is owned and operated by the Stockton Police Officers' Association (SPOA), not by the City. The facility, which has a gymnasium, kitchen, bar, pool tables, basketball court barbeque facility, and racquetball court, is used for a variety of social, recreational, and athletic activities. SPOA members can use it whenever they want as part of their union dues.

When the SPOA facility opened, the City's Chief of Police issued a special order strictly prohibiting officers from visiting the facility for any reason while on duty, including taking meal breaks or using the restrooms.

The basketball game in which Officer Jenneiahn was playing when he was injured was not an employer-sponsored event. In fact, it was not a scheduled event at all. The game was described as a pickup game; Jenneiahn went to the SPOA facility and got into a game with others who were there. At the time, he had not been playing very much basketball. He was staying in shape by running and officiating at basketball games. He testified that he would have been in shape regardless of whether he played basketball.

DISCUSSION

I

The question whether workers' compensation benefits should be received for injuries suffered by an employee during off-duty recreational or athletic pursuits has arisen often.

In Liberty Mut. Ins. Co. v. Ind. Acc. Com. (1952) 39 Cal.2d 512, 247 P.2d 697 (hereafter Liberty Mutual), the claimant was a live-in employee at a recreational resort. When not performing his duties, he could participate in any of the recreational activities available in the area, including swimming in a pool created by a dam across a stream. He was injured while diving into the pool. Because the pool was located beyond the area under its control, the employer could not prohibit the employee from swimming in the pool. (Id. at pp. 515-516, 247 P.2d 697.) The California Supreme Court concluded the injury was not covered by workers' compensation because it occurred while the employee "was engaged in a personal recreational activity on his own free time in an area without the orbit of his employment and beyond the control or dominion of his employer." (Id. at p. 517, 247 P.2d 697.) The court observed that to hold otherwise would make compensation coverage virtually limitless. (Id. at p. 518, 247 P.2d 697.)

The same conclusion was reached in Fireman's Fund Etc. Co. v. Ind. Acc. Com. (1952) 39 Cal.2d 529, 247 P.2d 707 (hereafter Fireman's Fund), where the claimant, a live-in cook and housekeeper, was injured during a walk. It was her custom to take short walks once or twice a day, and she had been advised to do so by the employer's doctor. On the day of the injury, she informed her employer that she was going for a walk. The employer told the employee not to go too far. (Id. at pp. 530, 531, 247 P.2d 707.) The Supreme Court found the injury was not compensable because it occurred while the employee was "walking on a public road as an act of recreational diversion of her own free choice and when off-duty from her work." (Id. at p. 535, 247 P.2d 707.) The court rejected her argument that she "was following her medical adviser's recommendation as to a suitable exercise, and so was conditioning herself to perform better the duties of her employment." (Id. at p. 534, 247 P.2d 707.) The court explained: "[I]f such theory should be adopted as sufficient to establish the necessary causal connection with the employment, then any injury sustained by an employee in a recreational activity would be compensable." (Ibid.)

In United Parcel Service of America, Inc. v. Industrial Accident Commission

(1959) 172 Cal.App.2d 73, 342 P.2d 41, the Court of Appeal concluded that an employee who was injured in a foot race at a company picnic was not entitled to worker's compensation because "the intangible value of improvement in the employee's health or morals that is common to all kinds of recreation and social life" is not sufficient to make an injury compensable. (Id. at pp. 74, 75, 76-77, 342 P.2d 41; see also State Farm Fire & Casualty Co. v. Workers' Comp. Appeals Bd. (1981) 119 Cal.App.3d 193, 197, 173 Cal.Rptr. 778.)

And in City of Los Angeles v. Workers' Comp. Appeals Bd. (1979) 91 Cal.App.3d 759, 154 Cal.Rptr. 379 (hereafter City of Los Angeles), the Court of Appeal concluded that worker's compensation did not apply to injuries suffered by a police officer while weightlifting at home in preparation for a physical fitness test. (Id. at pp. 761, 766, 154 Cal.Rptr. 379.) The Workers' Compensation Appeals Board had found compensation was appropriate because the officer was required to undergo a physical fitness test for which he was preparing. (Id. at p. 762, 154 Cal.Rptr. 379.) The Court of Appeal disagreed, stating: "There is a wide variety of occupations in which it is necessary for the employee to maintain or improve physical or mental proficiency in order to continue employment or qualify for advancement. The variety of activities which might be thought to serve those purposes is infinite. When the self-improvement activity is voluntary, off the employer's premises and unregulated, the employer can have little knowledge of the physical risks involved, and no opportunity to minimize or protect the employee against such risks. These circumstances strongly militate in favor of classifying such activities as personal in the absence of some connection with employment other than hoped-for personal improvement. The fact that the employer tested the fitness of the employee periodically should not by itself make a self-improvement program an industrial activity." (Id. at p. 764, 154 Cal.Rptr. 379, fn. omitted.)

In 1978, the Legislature acted on the question by adding to Labor Code section 3600 a provision that is now subdivision (a)(9) of the section.¹ (Further section...