Correctional Officer's Off-Duty Weight lifting Not AOE-COE

                               

Sacramento, CA - In 2006, Daniel Desimone began working for the County of Santa Barbara as a corrections officer.

In October 2007, he injured his lower back. The incident occurred at a private gym inside an apartment complex on a weekend when Desimone was not working and no other County employees were present. Desimone was attempting to lift 350 pounds without a fitness trainer. The injury resulted in permanent damage to his spine. He said that he was lifting weights in hopes of being promoted to Deputy Sheriff.

Desimone continued working as a custody deputy until March 2016. In 2017, he filed an application for disability retirement benefits. Two reporting physicians agreed he was permanently incapacitated, but they disagreed on whether his disability was service connected. Dr. Conwisar opined that it was "within reasonable medical probability" that Desimone’s work activities contributed to the injury. Dr. Ganjianpour opined that Desimone’s disc herniation resulted from the 2007 weight-lifting incident and that his work duties did not "significantly and measurably contribute" to his incapacity.

The Board referred the question of whether the disability was service connected to a referee. The referee found that Desimone’s weight-lifting injury was not work related. A trial court affirmed the Board, and the Court of Appeal affirmed in the unpublished case of Desimone v the Retirement Board of Santa Barbara County.

Desimone argued that pursuant to Ezzy v. Workers’ Comp. Appeals Bd. (1983) 146 Cal.App.3d 252 (Ezzy), that he was entitled to service-connected disability benefits because (1) he believed that his weight-lifting activity was expected by his employer and (2) his belief was objectively reasonable.

In Ezzy, the court of appeal held that a worker’s compensation claimant injured during a company-sponsored softball game was participating in an activity in the course of her employment.

Ezzy, is not controlling authority because it involved a worker’s compensation claim under the Labor Code, and not, as here, a claim for service connected disability retirement benefits under the CERL (Gov. Code, § 31720). The trial court was therefore not required to apply the Ezzy test to determine whether Desimone’s injury was service connected.

But, even under the Ezzy test, Desimone did not prove that his injury was sustained in the course of his employment. He argues that his subjective belief that the County expected him to participate in heavy weight lifting was objectively reasonable.

The specific activity must have a substantial nexus between an employer’s expectations or requirement, or else the scope of coverage becomes virtually limitless. Accordingly, general assertions that it would benefit the employer for, or even that the employer expects, an employee to stay in good physical condition are not sufficient.

Source: WorkCompAcademy.com

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