TAYLOR v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, First District, Division 2, California.

James A. TAYLOR, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and City of Berkeley, Respondents.

A038659.

Decided: February 18, 1988

This Workers Compensation Appeals Board (Board) proceeding presents the question of whether an employee's lunchtime injury that occurred on duty while he was playing basketball to keep himself in physical condition to pass the tests required by his employer, City of Berkeley (City), to remain a member of the special Hostage Negotiating Team (HNT) arose out of and in the course of his employment or whether compensation liability was foreclosed by the City's general order requiring advance approval. We will conclude that the injury was compensable under Ezzy v. Workers' Coma. Appeals Bd, (1983) 146 Cal.App.3d 252 and annul the Board's decision.

The underlying facts are not in dispute.   Applicant, born 1946, a City police officer since 1977, was a member of HNT, an elite group comprised of 37 the City's 171 regular police officers, whose members are held to higher physical fitness standards than regular officers and therefore, were encouraged to maintain their fitness.   In 1981, the City provided no formal fitness program 1 during duty hours, but left it to individual team members.   As an HNT member applicant was subject to monthly physical fitness tests.   He could be suspended from full HNT duty if he did not meet the standard.   In 1981 HNT members did not receive a pay differential.2

Applicant played basketball to keep himself fit.   He was injured on December 10, 1981, during a noon “pick-up” game in the gym in the City's Hall of Justice.   At that time, the noon games were open to police department and City employees; subsequently, the City closed the gym whenever officers were training there.   Because he was required to remain in uniform unless he went to the gym and in radio communication if he left the premises, applicant was “on duty” during his lunch break. Immediately after his injury, the Police Management Officer, Ms. Ballard, told the applicant that any injury he sustained while working out by himself in the gym during lunch would be covered; however, his December 1981 injury was not covered because he had been involved in a competitive game.   He was never told that injuries sustained during the lunchtime basketball game would be compensable.

Prior to his injury, applicant had read and signed Police Department General Order No. P-24.4 (effective March 26, 1979), which stated in pertinent part:  “17.-Approved athletics shall include only those events specifically approved in advance by the Chief of Police via the Administrative Captain and will normally be limited to inter-agency team competition and specific organized team practice sessions in connection therewith. ¶ 18.-Mere use of Departmental facilities for athletics or exercise is not considered a basis for claiming a service-connected injury.   Employees who use the Department gym and athletic equipment do so at their own risk.   Worker's Compensation benefits shall not be awarded for any injury unless advance approval for the event has been authorized.” (Emphasis added.) However, applicant did not believe that the general order applied to the special physical fitness requirements for HNT members.

Applicant also saw the City's posted Notice to Employees:  “The City of Berkeley or its Claims Administrator may not be liable for the payment of Workers' Compensation benefits for any injury which arises out of an employee's voluntary participation in any off-duty recreational, social or athletic activity which is not a part of the employee's work related duties.” (Emphasis added.)   Applicant testified that he saw this document only after his December 1981 injury in the weight room.

Acting Chief Thompson believed that the City's notice had been posted in 1979, initially in the squad room, then in the gym;  subsequently, it has been in the weight room.   Thompson often talked to Ms. Ballard about the use of the City's gym by police department employees:  he had never heard her say that individual work-outs were compensable;  before December 1981 her position was that off-duty athletic workouts were not compensable.

Labor Code 3 section 3600, former subdivision (a)(8) (now renumbered (a)(9) by Stats. 1986, ch. 755, § 1) so far as pertinent specifically provides:  “(a) Liability for the compensation ․ shall ․ exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment ․ in those cases where the following conditions of compensation concur:  ․ [¶] (9) Where the injury does not arise 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.   The administrative director shall promulgate reasonable rules and regulations requiring employers to post and keep posted in a conspicuous place or places a notice advising employees of the provisions of this subdivision.   Failure of the employer to post the notice shall not constitute an expression of intent to waive the provisions of this subdivision.” (Emphasis added.)

The WCJ, relied on Ezzy v. Workers' Comp. Appeals Bd., supra, 146 Cal.App.3d 252, to hold that the applicant's December 1981 injury was compensable because:  (1) HNT members were required and encouraged to maintain a higher physical fitness standard than regular officers;  (2) the City's general order and notice did not clearly communicate to applicant that his basketball game on the premises was not compensable;  (3) applicant's testimony was credible (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312);  and (4) applicant believed that the noon basketball activity was expected by his employer because of the higher fitness standard required of HNT members and his belief was objectively reasonable.

The Board granted reconsideration and found that applicant's December 1981 injury was not compensable because:  (1) the lunchtime basketball activity was “not expressly required, sponsored, encouraged or supervised” by the City police department;  (2) applicant was bound by the General Order which expressly stated that employees used the City's gym at their own risk unless there was advance approval;  (3) Acting Chief Thompson testified that in 1979 the City had posted the requisite statutory notice in the squad room stating that the City “may not be liable” (§ 3600 (a)(9));  (4) applicant had failed to prove by a preponderance of the evidence (§ 3202.5) that he had overcome the statutory presumption that the December 1981 injury did not arise out of his voluntary off-duty recreational athletic activity;  and (5) even if applicant subjectively believed that his lunchtime basketball game was a reasonable expectancy of his employment, his belief was not objectively reasonable.

The Board thus found that the requirements of the two-pronged test established by this court in Ezzy, supra, 146 Cal.App.3d 252, had not been met.   The Board relied on City of Los Angeles v. Workers' Comp. Appeals Bd. (Noetzel) (1979) 91 Cal.App.3d 759, to conclude that a private self-chosen physical fitness activity is not compensable even if its sole purpose is to prepare the employee for the employer's physical fitness test and the employer receives some benefit.   However, Noetzel was decided before the enactment of section 3600, subdivision (a)(9), with its special reference to athletic and recreational activities.   In any event, Noetzel is not apposite as there a regular duty officer was injured while exercising at home to maintain his physical fitness.   The court found no nexus with his employment because Noetzel could perform his regular duties without the workout.   Here applicant, as an HNT member, was required to maintain a higher standard physical fitness and regularly tested for it.   In addition, the instant injury occurred on the employer's premises.

Although not raised by the parties, we think that absent the City's general order and notice, the injury could be compensable under the personal convenience doctrine. (See Gutierrez v. Petoseed Co. (1980) 103 Cal.App.3d 766, 768-769; North American Rockwell v. Workmen's Comp. App. Bd. (Saksa) (1970) 9 Cal.App.3d 154.)   The posting of notice, however, eliminated the doctrine. (McDaniel v. Workers' Comp. Appeals Bd. (1985)  50 Cal.Comp.Cases 136.)

As we explained in Ezzy, supra, 146 Cal.App.3d 252, even an employer's indirect encouragement may change the voluntary nature character of the employee's participation. (Cf. Smith v. Workers' Comp. Appeals Bd. (1987) 191 Cal.App.3d 127, court balanced factors and applied Ezzy to hold that employer's encouragement may even make “off premises” injury compensable; Hughes Aircraft Co. v. Workers' Comp. Appeals Bd. (1983) 149 Cal.App.3d 571, 575, Ezzy interpreted to mean that the Legislature intended to eliminate from compensation coverage injuries that are only remotely work related;  Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 816-817, Ezzy test not applied as under “special risk” doctrine, applicant satisfied § 3600, subd. (a)(9).)

Whether or not the two-pronged requirements of Ezzy have been met here is a closely balanced question.   The City's indirect encouragement to HNT members and the special physical fitness requirements and tests for HNT members points away from a voluntary off-duty activity that was only remotely related to applicant' work.   However, we find pertinent guidance in Wilson v. Workers' Comp. Appeals Bd. (1987) 196 Cal.App.3d 902, which involved a Modesto police officer and member of the special emergency reaction team (SERT), who sustained an injury after hours and off premises while exercising to keep himself in shape for the physical test that SERT members were required to pass four time a year.   In Wilson, as here, the Board relied on City of Los Angeles v. Workers' Comp. Appeals Bd. (Noetzel), supra, 91 Cal.App.3d 759 to conclude that the two-pronged Ezzy test had not been satisfied.   The court reversed and held that under  Ezzy, Wilson subjectively believed that his participation was expected and his belief was objectively reasonable under the circumstances.   The court also noted the benefit to the employer from the SERT team with its special requirements and cited its prior opinion in Smith v. Workers' Comp. Appeals Bd., supra, 191 Cal.App.3d 127.4

The instant applicant's case is even stronger as the injury incurred during the lunch hour while applicant was “on duty.”   Arguably, the instant facts could be distinguished from Wilson, supra, 196 Cal.App.3d 902, as applicant admittedly had signed the general order requiring advance permission and the City had posted a notice relating to “off-duty” athletic activities, which, by its terms, did not apply to “on duty” activities.   But as we noted above, the posting of the notice merely obviated the application of the personal convenience doctrine. Here, as in Wilson, the periodical test requirements for HNT members, the benefit to the city of the HNT, and the indirect encouragement of HNT members to maintain a higher standard must be considered in light of the City's somewhat inconsistent communications.   We think the balance must be resolved in favor of the applicant, under the liberal construction mandate of section 3202. (Cf. Smith v. Workers' Comp. Appeals Bd,, supra, 191 Cal.App.3d 127.)   Accordingly, we think applicant met his preponderance of the evidence burden (§ 3202.5) and it was objectively reasonable for him to believe that the general order did not apply to his lunchtime basketball game in which he engaged to maintain the physical condition admittedly required of an HNT member.

The Board's decision is annulled and the matter remanded for proceedings consistent with the views expressed herein and in Wilson v. Workers' Comp. Appeals Bd., supra, 196 Cal.App.3d 902.

CERTIFIED FOR PUBLICATION.

SMITH, Associate Justice.

KLINE, P.J., and BENSON, J., concur.