ADJ17881925 — California WCAB decision

What the panel ordered

The Board denied defendant's Petition for Reconsideration, affirming the WCJ's findings that the applicant's injury arising from off-duty trail running was compensable under Labor Code section 3600(a)(9).

Defendant sought reconsideration of the Findings and Award issued by the WCJ on May 3, 2024, which found compensability of applicant's injury. The WCJ issued a Report and Recommendation denying the petition, which the Board adopted and incorporated.

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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 ankle · left foot

The Board found that applicant subjectively believed off-duty trail running was expected by the employer and that this belief was objectively reasonable based on testimony and employer practices, thus compensability was established under Labor Code section 3600(a)(9).

From the decision · page 4Based on the record before us, applicant has demonstrated that (1) he subjectively believes that his participation off-duty exercise is expected by the employer, and (2) that this belief is objectively reasonable. (Ezzy, supra, at 260; Wilson, supra.) Based on the testimony, there is a reasonable expectancy of off-duty exercise, such as trail running. (Lab. Code, § 3600(a)(9).) Thus, compensability for applicant's injuries is not barred by section 3600(a)(9) and we will not disturb the WCJ's findings. Accordingly, we deny defendant's petition for reconsideration.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant subjectively believed off-duty trail running was expected by the employer.

Favours Applicant prevailed

This subjective belief is a key element in establishing compensability under Labor Code section 3600(a)(9).

From the decision · page 4Based on the record before us, applicant has demonstrated that (1) he subjectively believes that his participation off-duty exercise is expected by the employer, and (2) that this belief is objectively reasonable. (Ezzy, supra, at 260; Wilson, supra.) Based on the testimony, there is a reasonable expectancy of off-duty exercise, such as trail running. (Lab. Code, § 3600(a)(9).) Thus, compensability for applicant's injuries is not barred by section 3600(a)(9) and we will not disturb the WCJ's findings. Accordingly, we deny defendant's petition for reconsideration.

Applicant's belief was objectively reasonable based on employer testimony and fitness culture.

Favours Applicant prevailed

Objective reasonableness supports the compensability of the injury under the statute.

From the decision · page 4Based on the record before us, applicant has demonstrated that (1) he subjectively believes that his participation off-duty exercise is expected by the employer, and (2) that this belief is objectively reasonable. (Ezzy, supra, at 260; Wilson, supra.) Based on the testimony, there is a reasonable expectancy of off-duty exercise, such as trail running. (Lab. Code, § 3600(a)(9).) Thus, compensability for applicant's injuries is not barred by section 3600(a)(9) and we will not disturb the WCJ's findings. Accordingly, we deny defendant's petition for reconsideration.

Employer accepted a similar off-duty injury claim of Captain Elbanna, establishing employer conduct and expectations.

Favours Applicant prevailed

This acceptance supports applicant's expectation that off-duty fitness injuries are compensable.

From the decision · page 13Moreover, there is the testimony by Captain Elbanna who had an off-duty knee injury while performing his routine workout at a private gym which was processed and accepted one year after it occurred. Captain Elbanna did not file a workers' compensation claim at the time of injury but when he needed surgery, he was directed by human resources to file a claim. Captain Elbanna testified that the claims adjuster for Athens said that it is expected of firefighters to maintain

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code

Labor Code section 3600(a)(9)

The injury is compensable if the off-duty activity is a reasonable expectancy or required by employment.

From the decision · page 2Pursuant to section 3600, (a) Liability for the compensation provided by this division... shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur:

Wilson v. Workers' Comp. Appeals Bd. (1987) 196 Cal.App.3d 902

Subjective belief and objective reasonableness test for compensability of off-duty injuries

Applicant must show subjective belief that activity is expected by employer and that belief is objectively reasonable.

From the decision · page 4In addition to the cases analyzed in the Report, defendant cites Wilson v. Workers' Comp. Appeals Bd. (1987) 196 Cal.App.3d 902 [52 Cal.Comp.Cases 369], which is particularly instructive. "First, we consider whether petitioner subjectively believed his participation in the athletic activity was expected by [the employer]." (Wilson v. Workers' Comp. Appeals Bd. (1987) 196 Cal.App.3d 902, 906 [52 Cal.Comp.Cases 369].) In Wilson, the Court of Appeal found that this standard was easily met when, as here, Wilson testified that his superiors told him off-duty conditioning would be necessary to maintain the physical qualifications of the job. (Id.) Second, with respect to whether that belief is objectively reasonable, "[c]ourts applying this test analyze and weigh factors evidencing implied employer approval or encouragement." (Wilson, supra, at 906-907.)

Ezzy v. Workers' Comp. Appeals Bd.

Benefit to employer as factor supporting compensability

Employer derives benefit from applicant's off-duty training, supporting compensability.

From the decision · page 4Courts have also stressed the benefit to the employer as a factor supporting compensability. (Id., see Ezzy, supra; Smith v. Workers' Comp. Appeals Bd. (1987) 191 Cal.App.3d 127 [52 Cal.Comp.Cases 162].) Here, the record shows that defendant derives benefit from applicant's off- duty training. Applicant testified that endurance is hugely important for fighting wildfires, which can last days (he was in Susanville fighting the Dixie fire for eight consecutive days). (MOH/SOE, p. 13.) Captain Costanza testified that a firefighter cannot adequately do their job without off-duty training. (MOH/SOE, p. 15.)

ADJ17881925 · July 29, 2024

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