Young v. Workers' Comp. Appeals Bd.

227 Cal.App.4th 472

173 Cal.Rptr.3d 643

Daniel YOUNG, Petitioner,

v.WORKERS' COMPENSATION APPEALS BOARD and County of Butte, Respondents.

C075047

Court of Appeal, Third District, California.

Filed June 25, 2014

See 2 Witkin, Summary of Cal. Law (10th ed. 2005) Workers' Compensation, § 225 et seq.

ORIGINAL PROCEEDING; petition for writ of review from a decision of the Workers' Compensation Appeals Board. Decision annulled and matter remanded. (WCAB No. ADJ8321113)

Mastagni, Holstedt, Amick, Miller & Johnsen and Craig E. Johnsen, Sacramento, for Petitioner.

No appearance for Respondent Workers' Compensation Appeals Board.

Cuneo, Black, Ward & Missler, Richard A. Weyuker, Sacramento, and Lauren E. Sible for Respondent County of Butte.

BUTZ, J.

Labor Code section 3600, subdivision (a)(9) (hereafter section 3600(a)(9)) ¹ forecloses workers' compensation coverage for an injury that arises out of “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.”

We conclude that a county jail correctional sergeant's off-duty injury, sustained when he was performing jumping jacks at home as part of his regular warm-up exercise regimen, arose in the course of his employment under section 3600(a)(9) 's exception for coverage, where a departmental order required correctional officers to “maintain themselves in good physical condition so that they can handle the strenuous physical contacts often required of a law enforcement officer,” and where the Butte County Sheriff's Department (the Department) required its correctional officers to undergo periodic training exercises, many of which involved physical activity. Consequently, we annul the decision from the Workers' Compensation Appeals Board (WCAB), which concluded otherwise, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Sergeant Daniel Young, the petitioner here, was initially hired in 1994 as a jail booking officer by the Department. Young accepted a position as a correctional officer within the same department in May 1995 after passing a required physical fitness test.² In 1999 Young was promoted to correctional sergeant, the same position he held when he sustained his injury.

Pursuant to Departmental Order No. 3004 (Departmental Order 3004), issued in February 2004, correctional officers, including correctional sergeants, are required to “maintain themselves in good physical condition so that they can handle the strenuous physical contacts often required of a law enforcement officer.” The Department's class specification bulletin for correctional sergeants, which describes the job duties of that position, requires correctional sergeants to be able to perform the same duties as correctional officers. And this same bulletin indicates, “Work occasionally involves personal danger, and exposure to hazardous, uncontrollable and life-threatening situations.... This position may require walking, running, lifting and climbing during efforts to catch or subdue hostile individuals. [¶] ... [¶] Required to physically restrain persons.”

Correctional sergeants are also required to complete periodic training exercises each year, many of which involve physical activity. Sergeant Young testified the training exercises begin with “a warm-up period because of the physical requirements the class ... place[s] on a[n] individual later.” Young further testified many of the training sessions involve “pairing off with a partner, taking turns being the aggressor versus the officer ... and practicing control holds, ... physical control techniques, take-down techniques, [and] both self-defense and offensive methods.” Young also testified that during baton training sessions, sergeants “are required to go ... against an inanimate object full out for a long period of time,” which Young described as being “extremely strenuous.”

Despite requirements to maintain good physical condition, the Department does not provide officers with an opportunity to exercise or participate in a fitness regimen during work hours; nor does the Department provide guidance as to the types of exercises or activities considered appropriate for maintaining the requisite level of fitness. As such, Sergeant Young maintains his physical fitness through his own fitness regimen at home when off duty. Young's fitness regimen involves doing warm-up calisthenics, including jumping jacks, before engaging in more rigorous exercises on his elliptical machine or on his multistation weight machine.³

On January 9, 2012, Sergeant Young was doing his usual warm-up calisthenics, specifically jumping jacks, in anticipation of more demanding exercises with his elliptical and weight machines. During one of the jumping jacks, Young came down and felt “extreme stabbing pain in [his] left knee.” Young reported this injury as work-related “because the injury took place specifically because [he] was exercising in order to maintain [him]self in a physical condition required by [the] [D]epartment.”

Sergeant Young testified he believes jumping jacks have helped him manage his weight since reaching middle age and have helped improve his cardiovascular health. Young testified he has “serious questions as to whether or not [he] would have been healthy enough” to perform his duties without his exercise regimen. Young also testified he believed the Department expected him to maintain good physical condition and he believed he could be terminated if he was not capable of performing his job duties. Young further testified he has reminded the correctional officers he supervises “they need to remain in [good] physical condition in order to do their job.”

The workers' compensation judge (WCJ) concluded that Sergeant Young's injury was compensable under section 3600(a)(9), finding, under the applicable legal test, that Young had a subjective belief the Department expected him to engage in a physical fitness regimen, and that such a belief was objectively reasonable. The WCAB disagreed that such a belief was objectively reasonable under a mere “general requirement” to maintain fitness, and annulled the WCJ's decision. We issued a writ of review to review the WCAB's decision.

DISCUSSION

Sergeant Young's Injury Is Compensable Under Section 3600(a)(9)

A. Issue on Writ Review

Section 3600 “provides generally that an injury is covered by workers' compensation benefits when, at the time of the injury, ‘the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment’ and ‘the injury is proximately caused by the employment....’ ” (City of Stockton v. Workers' Comp. Appeals Bd. (2006) 135 Cal.App.4th 1513, 1519, 38 Cal.Rptr.3d 474 (City of Stockton ).) Section 3600(a)(9) specifically explains that an injury that arises out of “ ‘voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee's work-related duties' ” is not compensable, “ ‘except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.’ ” (City of Stockton, at p. 1520, 38 Cal.Rptr.3d 474.)

In Ezzy v. Workers' Comp. Appeals Bd. (1983) 146 Cal.App.3d 252, 194 Cal.Rptr. 90 (Ezzy ), the Court of Appeal, First Appellate District, Division Two, concluded that what is now section 3600(a)(9) was added to the workers' compensation statutory scheme “ ‘to draw a brighter line delimiting compensability by replacing the [previous] general foreseeability test with one of “reasonable expectancy” of employment’ [citation], a test that is met when [ (1) ] the employee subjectively believes his or her participation in the [injury-producing] activity is expected by the employer, and [ (2) ] the belief is objectively reasonable.” (City of Stockton, supra, 135 Cal.App.4th at p. 1520, 38 Cal.Rptr.3d 474, [delineating the Ezzy test].)

Under this two-pronged Ezzy test, the issue of subjective belief is a question of fact, which we review under the substantial evidence rule; and the issue of objective reasonableness is a question of law, which we determine independently. (City of Stockton, supra, 135 Cal.App.4th at p. 1524, 38 Cal.Rptr.3d 474.)

The issue in this writ review proceeding is whether the second prong of the Ezzy test—i.e., whether the employee's belief is objectively reasonable—is met here.⁴

B. Section 3600(a)(9) as Applied to Law Enforcement Officers

There have been a number of cases applying section 3600(a)(9) (or its predecessor), which have found injuries—sustained by law enforcement officers while engaging in athletic activities—to be compensable under workers' compensation; they include the following three cases:

(1) Wilson, supra, 196 Cal.App.3d 902, 239 Cal.Rptr. 719, where the Court of Appeal, Fifth Appellate District, found compensable an ankle injury sustained by a police officer while running off duty at a school track. (Id. at pp. 904, 909.) As a member of the police department's special emergency response team (SERT), the officer had to pass physical tests four times a year to remain on the team. (Id. at p. 904, 239 Cal.Rptr. 719.) The tests included a requirement that officers over the age of 35, as was the officer in Wilson, must be able to run two miles in 17 minutes. (Ibid.) SERT officers were told by supervisors that they would have to exercise off duty to pass the tests. (Id. at p. 906, 239 Cal.Rptr. 719.) The Wilson court found the injury compensable because “[i]t would be completely unrealistic to conclude that off-duty running was not expected of [a] [SERT] member over 35 years of age who wanted to pass the [department's] test of running [two] miles in 17 minutes or less.” (Id. at p. 908, 239 Cal.Rptr. 719.)

(2) Kidwell v. Workers' Comp. Appeals Bd. (1995) 33...