Worker’s comp ruling requires employers to walk a fine line when they require their employee to be in shape.

CO off-duty police officer recovers WC benefits for bicycle accident because she was required to pass physical test.

City of Northglenn v. Eltrich, 1995 Colo. App. LEXIS 126; 19 BTR 663
This was the perfect set of facts at the right time to allow an off duty police officer to collect for injuries due to a bicycle accident. However, for anyone in the recreation community, this could easily occur.

The police officer, here the respondent, had just failed a physical test. Her supervisor had given her the impression that she needed to get into shape and pass the test, and she knew that she could be fired for not passing the test. She was out riding her bicycle, attempting to exercise when she had an accident.

Her employer, the police department did not provide exercise facilities and did not provide paid time to exercise. However physical fitness, in this case cardio fitness was part of the job.
The court looked at the appeal on whether the activity was required or part of her employment.

An activity “arises out of and in the course of” employment when it is sufficiently interrelated to the conditions and circumstances under which the employee usually performs his or her job functions that the activity may reasonably be characterized as an incident of employment, even though the activity itself is not a strict obligation of employment and does not confer a special benefit on the employer.

The court looked at the following factors to determine the bicycle accident was covered by worker’s compensation.

…whether the activity occurred during working hours; whether it occurred on or off the employer’s premises; whether participation was required; whether the employer took the initiative in sponsoring or organizing the team; whether the employer made contributions to the team; and whether the employer derived a benefit from the team.

Specifically, the court agreed with the Worker’s Compensation panel that “participation in the off-duty exercise program was required. The program was initiated by employer, and employer stood to benefit by the off-duty exercise program.”

The decision was a 2 to one decision. The dissenting judge filed a dissent stating because she was not at work during work hours or at her place of employment the accident should not be covered. The employer also had no supervision or control over the employee or her activities.

The dissent quoted a Supreme Court decision which created a six prong test which had to be met if a recreational activity was to be covered under worker’s comp. The six points of the test were:

1) whether the recreational activity occurred during working hours;
2) whether it was held on or off the employer’s premises;
3) whether employee participation was required or encouraged;
4) whether the activity was financially sponsored by the employer;
5) whether the activity was initiated by the employer; and

6) whether the employer received tangible benefits from the activity.

The dissent stated that since there was no sponsorship (support) for the activity, and not during business hours or at the employer’s premises the claim should be denied.

The court listed several other jurisdictions that had looked at the case and decided differently. Oregon had a similar claim and held the injury “was not compensable because it did not arise out of, and in the course, of employment.” Georgia, New Hampshire, Oklahoma, New York all were listed as having the same decision as Oregon.

However, the dissent did find that California ruled the same was as Colorado had.

So?

I believe the facts of this case where perfect for the court to find this way. I also think that other than California and a few other states this would be a difficult holding to support in other states.

However, I suggest if you are paying worker’s compensation insurance you work with a worker’s compensation attorney and your WC insurance company to understand your state laws. Worker’s compensation is strictly statutory and controlled by state laws. As such each state has a few particular differences, like this decision which you should know about.

So Now What?

If you have an outdoor program and require your guides to have a certain level of fitness, based on what your attorney says, figure out a way for your employees to exercise on their time without benefits or pay them to work out on your time and pay for their injuries.

What do you think? Leave a comment.

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