Injured trimming wisteria at home: Will he get workers’ comp?
February 6, 2012 by Fred HosierPosted in: Injuries, new court decision, Special Report, Workers' comp
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An employee fell off a ladder trimming wisteria branches while on call at his home. He applied for workers’ comp. We’ll tell you this much up front: When the case went to an appeals court, a three-judge panel issued a split decision.
Richard Warner is a firefighter employed by the County of Los Angeles. He’s stationed on Catalina Island with one other firefighter.
He’s required to live on the island to respond to emergencies 24 hours a day. He’s on call from his home 26 weekends per year.
When he’s not at the firehouse, Warner responds to emergencies from his home, partially because there’s no place for him to stay at the firehouse. He actually ends up responding to more emergencies from his house than from the firehouse. His employer doesn’t provide the housing, but he receives a stipend to help pay for it.
Catalina Island residents sometimes go to Warner’s house to request assistance when they see the fire truck parked in front of his home. The residents have to walk “through a wisteria-laden path.”
One Sunday, Warner was on duty at home. He did some inventory work in his home office and was going outside to check equipment on the fire truck. As he went outside, his wife asked him to help her trim the wisteria.
The court record states that if people came to his residence for help, the wisteria would “hit everyone in the face if it is not trimmed.”
Warner climbed a ladder to trim the vines. Part of a trellis gave way, and he fell off the ladder injuring his neck, back, elbow, wrist and shoulder.
After he applied for benefits, a workers’ compensation judge found Warner’s injury didn’t arise out of or occur in the course of employment.
On appeal, the workers’ comp board ruled California’s “bunkhouse rule” didn’t apply because Warner wasn’t required to live on his employer’s premises even though he was required to live on Catalina Island. The board said Warner was performing a personal chore, not a service for his employer. For that reason, it upheld the denial of workers’ comp benefits.
Next, the case went to a California appeals court.
Here’s how a two-judge majority on the court saw the situation: Trimming the wisteria ensured residents had safe access to Warner’s house and allowed him to reach his fire truck safely when responding to emergency calls. The judges said trimming the vine was “impliedly authorized by the county” because residents sometimes went to his home for help.
Sure, Warner was cutting the wisteria because his wife asked him to. But California’s dual purpose doctrine says when an employee is combining personal and work business, he’s considered to be working.
Therefore, the judges concluded that Warner’s injury was compensable under the dual purpose doctrine. The court said: Give Warner comp benefits.
But one judge on the appeals court wrote a dissenting opinion. That judge noted Warner’s home wasn’t provided by his employer and the county didn’t require him to maintain his home as if it were a fire station.
The dissenting judge wrote:
The issue comes down to whether [Warner's] act that resulted in his injury — trimming the wisteria — was within the scope of his assigned duties and arose out of those duties. The wisteria did not prevent [him] from reaching his fire apparatus. There is no evidence that petitioner’s (Warner’s) wife or petitioner undertook to cut the wisteria as a safety measure. If trimming vegetation in a personal residence arises out of the employment, so would any activity around the residence. Thus, I agree with the Board and would not annul its decision.
But that judge was in the minority, so it looks like Warner will get workers’ comp.
What do you think about this decision? Which judge(s) do you agree with? Let us know in the comments below.
(Warner v. Workers’ Compensation Appeals Board, Court of Appeal CA, No. B232190, 12/27/11)
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Tags: bunkhouse rule, dual-purpose rule, trimming wisteria, Workers' comp
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February 7th, 2012 at 11:27 am
Although it is not shown in this article, I wonder if the judges looked at how much he had to stay “at the ready” when he was on call, i.e., couldn’t have a couple of beers while watching the game. Also, was he paid while he was on call? If his inventory in his home office allowed him to perform work as a paramedic to people who go to his house, then his house is a “branch office”. If all these things are true, and especially if there’s no place to stay at the firehouse, then the dual purpose law qualifies.
February 7th, 2012 at 11:32 am
I do not see this injury as work related. Further, I would question the abilities of a firefighter who cannot safely work off a ladder or be able to judge the stability of a trellis. Perhaps Mr. Warner should consider a line of work with fewer risks or potential hazards.
February 7th, 2012 at 11:35 am
Disagree. I don’t see how California’s dual purpose doctrine applies here. Moreover, it appears that the two judge ruling was based on safety, i.e., the wisteria was somehow unsafe for ingress/egress to the house. I don’t see from the article, as written, that anyone claimed it was unsafe. I have a wisteria on a trellis…yes, wispy leaves and thin branches hang down and occasionally they need trimming or they will be in your face. It is a routine thing! Given this ruling, I imagine that any bit of landscaping hanging in someone’s face will now become a safety issue. Heaven forbid if a leaf fell from a tree and “hit someone in the face.” What a crock! BTW…Did anyone notice that this guy was a Fireman, he is trained to use ladders as part of his job, and he fell off a ladder while at his home. Hmmmm, I do think there may be something fishy going on here.
February 7th, 2012 at 11:45 am
First, this happened in California, rules do not apply. Regardless of all of the chatter, I do not think this should be conpensible - period. It lays foundation for, what will become, stretches and fabrications linked to this case law. The system is already burdened with abuse. I am going to bet this person has personal insurance and property insurance to cover this, why did he feel compelled to use the workers compensation system?
February 7th, 2012 at 11:59 am
Unless allowing people to call on him while at home is a condition of his employment, regardless of stipend paid, he is doing yard work while trimming the wisteria just the same way he would be doing personal grooming if he cut himself while trimming his hair or mustache while in the fire station. Clearly, the dual-purpose ruling does not apply. Moreover, if trimming his landscape is a condition of employment, his employer is potentially out of compliance with both Cal_OSHA’s and Federal Ladder Safety Standard because as an employer, they are legally responsible for the actions of their employees. True, as a branch of government, they can’t be fined by OSHA, but they can be cited. No comp on this one.
February 7th, 2012 at 12:08 pm
The firehouse doesn’t provide living quarters. But however, it does pay Warner a stipend to help offset the cost of his home. Therefore, his home is classified as a work area when he is on call due to the fact that he has to maintain and be ready to respond at a moments notice. Please go to the insurance website for your state and follow up with the federal mandated guidelines. Insurance rules and regulations and what is considered to be customary can be tricky as some have the tendency to take sections out of text to suit ones own needs or wants. As far as the ladder falling - obviously the structure supporting the lattice was not maintained or else the weight load for support was exceeded. Anytime required paperwork is performed at home that constitutes it as being a home office / branch office - check with the IRS. Dual purpose law is covered.
February 7th, 2012 at 12:12 pm
Last week, I was cleaning out my gutters and almost fell pulling a muscle. I will now turn this in to WC as a work related injury because if my gutters get clogged and I need to go to work I will be late. Cleaning the gutters must take precedence over doing my job and if my gutters are clogged then this creates a safety concern which must be cleared before work. Horse hockey!
February 7th, 2012 at 12:28 pm
I am more inclined to agree with the “California’s dual purpose doctrine says when an employee is combining personal and work business, he’s considered to be working” since it is the law. But I don’t believe that he should be able to receive workman’s comp.
Lets say that he is watering his lawn and tripped over the hose that is across the sidewalk, broke his arm and other slight injuries. I consider this the same as trimming bushes. He should have been doing the task in a more safely manner. Too many times we are not held responsible for our own actions and want others to pay the bill for our carelessness or not doing things safely.
Randy Cook
February 7th, 2012 at 12:33 pm
Can workers comp insurance submit a claim against his homeowners policy for a faulty trellis? As a professional fireman shouldn’t he be aware of safe ladder use? Is his wife a county employee who can direct him to do work?
February 7th, 2012 at 12:38 pm
Since the employer provides a stipend to pay for some of the employee’s housing, then the employer is responsible for some of the damages at least if not all. It is understood that the employee will be performing work while in his home or responding to work calls from his home.
And one may reasonably conclude that the employee’s home is now subject to a reasonable amount of his employer’s control. In other words, if I was paying for my employee to work out of his home, I would require some “say-so” about my employee’s ability to respond to calls from that home.
February 7th, 2012 at 1:00 pm
This just goes to show you that he should have had his honey do projects done before the wisteria got too thick for the trellis to support. =;o)
But seriously, I believe the worker’s comp law has changed to address if someone injures themself at work, but not in the course of their employment (burns their hand heating up lunch), then their health insurance policy pays for it, not worker’s comp.
February 7th, 2012 at 1:13 pm
Jason F has it right on. Getting a good nights sleep benifts the employer, however if you have a bad dream and fall out of bed it is not compensible.
I believe this to be an absolute attempt at WC fraud, and the employee should be prosecuted, and the 2 judges impeached. WC is not soclialized medicine or welfare.
And if a firefighter cannot safely use a ladder and trim the bushes, he is not qualifed to be a firefighter. And why would people go to his house? Bring their fires to him to put out? BS, all the way.
February 7th, 2012 at 1:16 pm
@ Aida and Tammie I agree with you two on this one. @ Jason F. If I fall cleaning my gutters I am s.ol. same as you but my employment does not mandate that I live in a certain location nor does it pay me a stipend to live there. His does in order for him to do his job to the fullest.
February 7th, 2012 at 4:31 pm
@ Eric: In many cities, the fire department additionally act as paramedics. Residents could have gone to him for minor medical attention.
February 7th, 2012 at 4:51 pm
I wish they would have at least performed a little bit of research on the residence to see where the truck is parked and how access is gained to the residence. From what I can gather, there is not any limitation to access to the vehicle nor to the residence because of overgrown vegetation. The way they describe the overgrowth, you would imagine something out of the densest part of the Amazon jungle. Far from the truth.
On a side note, it looks like a fairly decent place to live.
February 8th, 2012 at 9:53 am
@ Aida. I understand Aida. Being a medic and former firefighter myself, I am well aware of the other duties involved. However, unless called out, you are not working in an official capacity when people come to your home. His home was not an official station, no more than people knowing I am a safety professional or a medic and deciding to come by my home instead of my office.
We can stretch the absurdity of WC coverage to every aspect of our lives, but such was never the intent, and should never be the reality. I cringe at how people actually would consider this to be a valid WC issue. It should be part of that TV show, “Worlds dumbest WC claims” Completely absurd.
February 8th, 2012 at 5:42 pm
When job sharing and working from home became a new “thing”, employer’s often required employees to submit pictures of their work area because if they were allowed to use their home as a workplace the employer had to ensure the workplace was safe and ergonomically correct. Because, allowing, or in this case, directing employees to work from home, the employer has a fiduciary right to ensure their employer has a safe and healthy workplace.
What has to be determined is whether or not the employer consented, condoned, implied or directed the employee to use the home office for company business. If so, then comes in the “Protection of the Public” and safe entry can be argued. I believe the request from the wife has no value and is a null point.
The improper use of a ladder is another issue, especially if he pulled it off his firetruck and was considered a Competent Person. Workers’ Compensation pays for stupidity all the time in workplaces, and all the employee has to say is their supervisor never taught them how to use the equipment properly.
It may be absurd, but legal.