Wednesday, December 28, 2011

Firefighters, Wisteria Bushes and AOE/COE

This case, reported in this morning's WorkCompCentral News, is sure to bring about loud objection from the employer/business community:

A firefighter's decision to help his wife trim the wisteria in front of their Catalina Island home was incidentally related to his job because island residents would occasionally go to his home for emergency help, the 2nd District Court of Appeal ruled in an unpublished decision. The court said that the firefighter's injuries were work-related under the dual purpose doctrine. This doctrine allows a claim to be compensable if the activity the applicant was performing at the time of injury benefited both the injured worker and the employer.

Warner, a firefighter for the County of Los Angeles Fire Department, was stationed at Catalina Island and lived at a house with his wife. The job required him to be continuously on call for 24 hours a day, seven days a week, and he responded to weekend fire calls about 26 times per year.

On Sunday, Feb. 14, 2010, Warner had just finished doing some inventory work inside his home office before leaving to check on more equipment inside his fire truck. As he walked down the stairs in front of the house, his wife asked him to trim the wisteria that grew over the walkway into their home. Warner climbed up a ladder and began to trim the wisteria, but a trellis gave way, causing Warner to fall. He suffered neck, back, elbow, wrist and shoulder injuries.

A workers' compensation judge and the Workers' Compensation Appeals Board denied his claim, concluding that the injury did not arise out of or occur in the course of employment. However, the 2nd DCA determined that Warner's trimming of the wisteria incidentally benefited his employer, because it made it easier for island residents to go to Warner's home in case of an emergency.

"Here, trimming the wisteria ensures residents have safe access to petitioner's house and allows him to reach his fire truck in a safe and timely manner when responding to emergency calls," Presiding Justice Paul Turner wrote on behalf of the majority. "No doubt, petitioner trimmed the wisteria at his wife's request. But this does not negate that the activity was impliedly authorized by the county because it is undisputed that island residents sometimes go to petitioner's home for help. By trimming the wisteria, petitioner was engaging in an activity that benefited both himself and his employer."

Justice Richard M. Mosk dissented, arguing that Warner's fall was not compensable under any special rule.

"The wisteria did not prevent petitioner from reaching his fire apparatus," Mosk wrote. "Indeed, he apparently saw no need to deal with it. He only undertook to trim it at his wife's request. As attributed to petitioner, trimming the wisteria improves the appearance of the house. There is no evidence that petitioner's wife or petitioner undertook to cut the wisteria as a safety measure for members of the public who came to the residence for services."

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