LA County Firefighter Wins Comp Claim for Hedge Trimming Injury at Home

Today’s Burning Question: I was on duty as a firefighter and was at my house doing some paper work. On my way back to the station, my wife asked me to trim some wisteria bushes, and in the process I fell off a ladder injuring my back and neck. The fire department denied me workers compensation coverage. Shouldn’t I be able to recover?

Answer: According to the Second District Court of Appeals in California, an on duty firefighter who is injured while engaging in activities that his employer allows him to engage in, is covered by workers compensation under the dual purpose doctrine even when done at the request of his wife.  This unusual case arose in LA County involving a firefighter, Richard Warner, who is assigned under fairly unique conditions to Catalina Island.  

The facts of the case are fascinating, and rather than me trying to summarize the details, please read the court’s description… it is quite informative:

“The county maintains Fire Station 55 on Catalina Island that is staffed by a captain and a firefighter specialist.   In 1993, the county recognized the need to increase fire staffing on the island.   The increased compensation is designed to compensate the firefighter for:  higher housing costs, including taxes;  moving and transportation expenses;  and other living expenses.   Since 1993, petitioner has served as a firefighter specialist at Fire Station 55.   The work schedule is unique.   Both the captain and petitioner are required to live on Catalina Island to respond to emergency incidents 24 hours per day.   The captain and his family live at Fire Station 55.   The captain, sometimes with help from petitioner or a relief captain, cleans and maintains the lawn, gardens, bushes and trees at the fire station.   Petitioner and Captains Richard Harp, Michael Lewis, David Gillotte and Mitchell Charles Brown, testified their firefighting duties include maintenance of the fire station’s grounds.   The maintenance tasks include mowing the lawn, clearing brush, trimming bushes, and removing trees.   Because petitioner is not provided housing, he receives a stipend equivalent to an 11 percent increase in salary to offset the high cost of living on the island.   The rate of pay is “four schedules higher” than that for a typical firefighter’s compensation.

“Petitioner works scheduled times at the fire station during weekdays.   But petitioner is not at the fire station on weekends or when he is on call.   Unless relieved in advanced by the captain, petitioner is required to be available 24 hours per day in order to respond to emergency incidents.   Petitioner responds to calls from his home 26 weekends per year.   Petitioner is on call from his home after work hours because there is no place for him to stay at the fire station.   He responds to calls from his home more than from the fire station.   In the event of a major incident, petitioner is required to respond from his home.   Ninety percent of the calls for assistance come from locations closer to petitioner’s home than to the fire station which is at the end of a road through town.   Catalina Island residents know petitioner is a firefighter and sometimes go to petitioner’s house to request assistance when they see the fire truck parked on the street outside his home.   When the residents go to petitioner’s house for assistance, they have to walk through a wisteria-laden path.   Island residents will go to petitioner’s house for assistance if they live nearby or if an injury occurs near his home.   The county has no ownership interest or control over petitioner’s residence or input regarding its particular location.   The county neither inspects petitioner’s residence and equipment at his home nor provides maintenance guidelines.” …

“Our Supreme Court explained:  ’[A]n employee is in the ‘course of his employment’ when he does those reasonable things which his contract with his employment expressly or impliedly permits him to do. ’”…

“It is undisputed petitioner was on duty at his residence when he injured himself.   Petitioner is required to work at home every other weekend because there is no place for him to stay at the fire station.   Before he was injured, petitioner had just finished some paperwork in his home office and was on his way to inspect the equipment on the fire truck.   On his way to the fire truck, petitioner’s wife asked him to help her trim the wisteria.   The wisteria grows in front of his house and in the pathways;  it will hit everyone in the face if it is not trimmed.   It is uncontested that Catalina Island residents sometimes go to petitioner’s home for help when they believe he is at home because they know he is a firefighter.”

“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.   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.   Referred to as the dual purpose doctrine, the Court of Appeal has explained:  “ ‘[W]here the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly [nor] indirectly could he have been serving his employer.’ … the injury is compensable if received while the employee is doing those reasonable things which his contract of employment expressly or impliedly authorized him to do.” …

 “We conclude petitioner’s act of trimming the wisteria was incidental to his employment even though it was done at his wife’s request.”

The case was decided on December 27, 2011 and is now starting to peek some interest in the law and workers comp blogs.

Here is the decision. Warner v Workers Compensation Appeals Board

Here is a recent blog. And another.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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