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Aug 14 2014

AOE-COE/correctional officer injured during exercise program

Young v. WCAB (Court of Appeal, published) (42 CWCR 133):

In this case, the applicant was a 64-year-old Butte County correctional Sgt. responsible for guarding inmates sustained injury to his left knee while doing jumping jacks at home. The applicant presented evidence at trial that his job required physical fitness and a formal departmental order confirmed that fact although the order did not specify the types of activities required by the employees to stay fit. The applicant developed his own exercise routine. The applicant had undergone a fitness examination when hired although no evidence was presented of any periodic fitness test.

The WCJ following trial held the injury compensable citing the case of Ezzy v. WCAB (48 CCC 611).

The WCAB reversed and held the injury non-compensable.

The applicant filed a writ which was granted. The Court of Appeal annulled the WCAB decision holding the applicant’s exercise activities at home brought him within LC § 3600 (a) (9).

The court stated that the Ezzy two-pronged test requires that (1) the applicant must subjectively believe that his participation in the injury causing event is required (2) that belief must be objectively reasonable.

The Court of Appeal observed that under the Ezzy test whether applicant’s subjective belief that his participation in the injury causing activity is a question of fact, while whether that belief was objectively reasonable is a question of law to be determine separately.

Applying the Ezzy test to the instant facts the court stated focus must be on the specific activity on which the worker was involved when injured occurred.  The court stated the facts of this case supported a conclusion that the applicant subjectively believe that his participation in the injury causing event was required

The court then turned to the second prong of the test as to whether that belief was objectively reasonable. The court concluded that applicant’s belief was objectively reasonable because the obligation to remain physically fit was merely general. The court observed that the department order demanded a fitness level based on the duties required of a correctional Sergeant and that coupled with the lack of opportunity to exercise during working hours made applicant’s belief that he was expected to engage in an off-duty regiment objectively reasonable.  Further for him to believe that warm-up calisthenics would be expected for a man his age was objectively reasonable.

The court reasoned that it was unrealistic to conclude that off-duty running was not expected of older emergency team officers attempting to meet running requirements and that the same reasoning applied to the jumping jacks in the instant case.

Although the present case did not involve preparation for a required fitness test the employer here did require correctional Sergeants to participate in periodic training exercises involving strenuous activity beginning with warm-up calisthenics designed to forestall injury. Further correctional Sergeants must accomplish an array of physical demanding actions such as cell extraction, Taser use, restraint; grappling, controls, and baton use all requiring sufficient cardiovascular health.

To allay any concerns about potential increase liability the court observed that employers have the ability to pre-approve athletic activities or fitness regimens.

The decision of the board was annulled and the case remanded to the WCAB for further proceedings and awarded applicant costs.

 

1 comment

  1. Alexander

    To further clarify: it was shoulder impingement caused by faulty movement patterns/overuse, leading to bursitis. On the MRI (?) scan the swelling is clearly visible. This was taken 6 months ago, though.

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