Taylor v. Workers' Compensation Appeals Board & City of Berkeley

Opinion

SMITH, J.

The issue is whether the Workers’ Compensation Appeals Board (Board) erred in denying the petitioner, a police officer, workers’ compensation for an injury sustained while playing basketball during his lunch period.

Labor Code section 3600, subdivision (a), provides in part: “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... in those cases where the following conditions of compensation concur: . . . [H] (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.”

On December 10, 1981, the petitioner, a police officer employed by the City of Berkeley, injured his right knee while playing basketball during his lunch break. The basketball game was being played in a gymnasium in the Berkeley Hall of Justice. The gymnasium was open to all city employees and the “pick up” game in which petitioner was injured included players who were not police officers. Petitioner’s participation in the game in question was voluntary and not required by the Berkeley Police Department. Petitioner was off-duty and uncompensated during the lunch break.

As a police officer, petitioner was expected (by his employer) to keep himself in good physical condition, particularly as a member of the hostage negotiating team (HNT). At the time in question, the Berkeley Police Department did not provide formal physical fitness training sessions or guide

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lines, and there were no formal physical fitness tests. Each officer was expected to keep himself or herself in good physical condition by working out on his or her own. The city provided the gymnasium and a weight lifting room for that purpose. Petitioner played basketball and jogged to keep himself physically fit.