Wednesday, December 28, 2011
C.A. Annuls Denial of Benefits to Firefighter Hurt Doing Yard Work
By a MetNews Staff Writer
A Los Angeles firefighter, who fell off a ladder and was injured while doing the yard work his wife had asked him to perform at their home last Valentine’s Day, may be entitled to workers’ compensation, the Court of Appeal for this district ruled yesterday.
Div. Five, in an unpublished decision, annulled a decision denying Richard Warner benefits for the injuries to his neck, back, and left elbow, wrist and shoulder from the fall, concluding he was engaging in an activity that was contemplated by the course of his employment.
Warner has served as a firefighter specialist at Fire Station 55 on Catalina Island since 1993. Both he, and a fire captain, are required to live on the island in order to respond to emergency incidents.
The captain and his family live at the fire station on Catalina, where he and the other firefighters perform maintenance on the lawn, gardens, bushes and trees as part of their employment duties.
Warner was not provided housing, but instead received a stipend equivalent to an 11 percent increase in salary to offset the high cost of living on the island.
No County Interest
The county had no ownership interest or control over his residence or input regarding its particular location. It neither inspects Warner’s residence and equipment at his home nor provides maintenance guidelines.
Uncontested evidence introduced during the workers’ compensation proceedings established that Warner worked scheduled times at the fire station during weekdays and was required to be available 24 hours per day from his home after work hours and on weekends.
He regularly responded to calls from his home, and did so more often from home that from the fire station. Ninety percent of the calls for assistance come from locations closer to Warner’s home than to the fire station which is at the end of a road through town.
Island residents know Warner is a firefighter and sometimes go to his house to request assistance if they live nearby or if an injury occurs near his home. To access the house, the residents have to walk through a wisteria-laden path.
Warner testified that he was on duty, at home, last Feb. 14. He said he did some inventory work of search and rescue team pagers in his home office before leaving to check on the equipment in the fire truck.
As he was coming down the front stairs on his house, Warner said his wife asked him to help her trim the wisteria, which grows wild in front of the house. He climbed up on a ladder to assist his wife, then part of the trellis gave way and he fell.
A workers’ compensation judge found Warner’s testimony to be credible, but that he “did not sustain injury arising out of or occurring in the course of employment” and ordered he receive nothing.
The Workers’ Compensation Appeals Board denied Warner’s petition for reconsideration, ruling that yard work “cannot be considered ‘performing service’ for the employer with[in] the meaning of [Labor Code] section 3600 [subdivision] (a)(2) or to be ‘proximately caused’ by applicant’s employment within the meaning of section 3600 [subdivision] (a)(3).”
Sec. 3600 provides that liability for compensation against an employer exists where “at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment” and “the injury is proximately caused by the employment.”
Presiding Justice Paul Turner, writing for the appellate court yesterday, noted that it was “undisputed petitioner was on duty at his residence when he injured himself,” and that he was “required to work at home every other weekend because there is no place for him to stay at the fire station.”
Turner acknowledged that Warner had engaged in the yard work which led to his injury at his wife’s request, but reasoned “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.”
The justice posited that “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,” so in trimming the wisteria, “petitioner was engaging in an activity that benefited both himself and his employer.”
Joined by Justice Orville A. Armstrong, Turner concluded Warner’s injuries were compensable under the “dual purpose doctrine” and directed that the case be remanded for further proceedings.
Justice Richard M. Mosk, however, dissented. He contended that Warner was required to provide for his own residence as a condition of his employment, and the county did not require him to maintain the premises of his home as if it were a fire station.
“If trimming vegetation in a personal residence arises out of the employment, so would any activity in or around the residence,” Mosk argued. Under this rationale, he said, “virtually any activity within or on the petitioner’s residential property that injured him would be compensable.”
Warner was represented by Aaron Straussner of Straussner Sherman. Cornelia Sterner and Paul M. Ryan of Brenner & Sterner LLP served as counsel for the county.
The case is Warner v. Workers’ Compensation Appeals Board, B232190.
Copyright 2011, Metropolitan News Company