ADJ16610370 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied by the WCAB on December 19, 2024, affirming injury AOE/COE to the left knee.

Defendant sought reconsideration of the WCAB's September 30, 2024 Opinion and Order granting reconsideration of the WCJ's July 9, 2024 Findings and Orders, which found injury AOE/COE to the left knee; WCAB denied defendant's petition for reconsideration on December 19, 2024.

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold September 30, 2024.

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEApplicant prevailedleft knee

The WCAB found that applicant met both prongs of the Ezzy test: he subjectively believed participation in off-duty jiu-jitsu was expected by the employer, and that belief was objectively reasonable based on the employer's communications and training practices.

From the decision · page 4II. Turning to the merits of the Petition, defendant contends that the Appeals Board incorrectly applied Ezzy by finding applicant had a "reasonable subjective belief that participation in an off- duty jiu-jitsu class was expected by his employer." (Petition, p. 1.) Defendant further contends that applicant's "subjective belief" was based upon an August 17, 2021 email from applicant's team lead, Lieutenant Heriberto Guitierrez, which, defendant argues, can only be viewed as "encouragement to maintain general fitness" and therefore cannot serve as a basis for finding satisfaction of the second element under Ezzy. (Petition, p. 5.) As noted in our September 30, 2024 O&O, section 3600(a)(9) states, in relevant part, that compensation does not exist where an injury arises "...

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's testimony that training outside work made him more competent and that one week of training was insufficient

From the decision · page 5activity at the jiu-jitsu gym was expected by his employer." (OOD, p. 3.) This belief, as testified to by applicant during the May 7, 2024 trial, was based upon the August 17, 2021 email from applicant's team lead, Lieutenant Heriberto Gutierrez, as well as discussions with peers which led applicant to believe that "training outside of work made him more competent and training for one week was not sufficient." (Id.) In light of the foregoing, applicant's subjective belief is well established. Further, as the first element pertains to a subjective belief, defendant would be hard pressed to prove otherwise absent direct, explicit evidence to the contrary.

Documentary evidencefavours Applicant prevailed

August 17, 2021 email from Lieutenant Heriberto Gutierrez encouraging officers to stay in shape and workout

From the decision · page 5As discussed in our September 30, 2024 O&O, although it is true that the officers in Wilson and Tomlin were training for fitness tests which required the subject activity, it is also true that physical fitness was required as a condition of the applicants' jobs and how they were to maintain their fitness and otherwise train was not limited by superiors. Further, the Court of Appeal in Wilson noted that "proving express or implied pressure upon the employee serves to establish the objective reasonableness of that employee's belief that he or she was required to participate in the off-duty activity." (Wilson, supra (quoting Aetna Casualty & Surety Co. v. Workers' Comp. Appeals Bd. (1986) 187 Cal.App.3d 922, 931.).) In our O&O, we therefore found like Wilson, in the instant matter, maintenance of physical fitness was either directly expressed or implied, as evidenced by the August 17, 2021 email from Lieutenant Gutierrez wherein he specifically requested officers to "stay in shape" and "workout." (Joint Exhibit 4.) He also underscored the fact

ADJ16610370 · December 19, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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