Agency Does Not Have Obligation To Make Temporary
Light Duty Available Indefinitely

RAINE V. CITY OF BURBANK, ET AL (135 C.A. 4 th 1215)

Mark Raine, a 21year veteran police officer suffered a torn meniscus while on duty. Following the knee injury, Raine had difficulty running, jumping, kneeling and lifting, which are activities essential to perform the duties of a patrol officer. Raine was assigned to a temporary light-duty position at the front desk, a position normally filled by civilian personnel, to accommodate him while his injury healed. Raine remained in that position for six years, until the department was advised by Raine's personal physician that Raine's disability was permanent and he would never be able to perform the essential functions of a patrol officer.

After being advised of Raine's permanent disability Burbank P.D. arranged a job analysis, with input from Raine and his immediate supervisor, as part of the interactive process mandated "to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." (GC§ 12940, subd. (n).) Burbank informed Raine it had no available position for a sworn police officer with Raine's physical limitations. Raine took disability retirement and, after exhausting his administrative remedies, filed suit against the City of Burbank , three senior officials from the city and police department, alleging disability discrimination, failure to accommodate, age discrimination, retaliation and harassment, all in violation of the Fair Employment & Housing Act (FEHA), in connection with his removal from the front-desk position and his involuntary retirement.

The California Court of Appeal, Second Appellate District, affirmed the trial court's granting the City's Summary Judgment Motion, holding that an employer who reassigns an employee to a temporary light-duty position to accommodate the employee's injury, under the Fair Employment and Housing Act (GC 12900 et seq), does not have an affirmative obligation to make that temporary light-duty assignment available indefinitely once the employee's temporary disability becomes permanent.

The court also noted that, in addressing a similar question under the Americans with Disabilities Act (ADA), the federal courts of appeals have uniformly held that the duty to provide reasonable accommodation for a disabled employee does not obligate the employer to convert a temporary light-duty position into a permanent one when doing so would, in effect, create a new position.

HOW DOES THIS AFFECT YOUR ORGANIZATION:

This case affirms the intent, in federal and state legislation, that an affirmative duty exists to temporarily accommodate injured employees; however, no duty exists for an employer to convert a temporary accommodation to a permanent position.

Appellate Court Defines "Appropriate
Emergency Response" for purposes
of Reimbursement 

CHP v. SUPERIOR COURT OF ALAMEDA COUNTY (Allende) (135 C.A. 4 th 488)

Esteban Allende caused a non-injury, minor damage, accident while driving under the influence of alcohol. Three CHP officers responded to the scene. Allende conceded the proximate cause of the accident was the negligent operation of his vehicle.

The CHP billed Allende $360 for its costs in responding to the accident, claiming 7.5 hours of officer time at a rate of $48 per hour, itemized as 3.5 hours for accident investigation, 0.5 hours for vehicle storage, 3.0 hours for "in custody" activities, and 0.5 hours for traffic control. Allende paid $63 toward the $360 invoice, then he and another person, who received a similar CHP bill for emergency response expenses associated with a DUI-related accident, Michele Grundhoeffer, filed a class action complaint against the CHP.

The trial court granted summary adjudication to Esteban Allende, concluding that the CHP could not recover expenses incurred to enforce the laws that prohibit driving under the influence of alcohol or drugs, including the cost of performing a field sobriety test and making an arrest. The trial court limited recovery to response costs for activities which it deemed unrelated to enforcement of the DUI laws, such as directing traffic and ensuring public safety at an accident site, investigating an accident, preparing accident reports, and transporting disabled vehicles. The court rejected the CHP argument that the trial court applied too restrictive a standard, which would compel it to perform an artificial and unworkable allocation of officer response time into recoverable and non-recoverable components.

The California Court of Appeal, First Appellate District disagreed with the trial court and accepted the CHP's argument and granted a peremptory writ of mandate.

The Appellate Court noted that for purposes of reimbursement under the Vehicle Code the legislature had not adequately defined what "appropriate emergency response" was. The Appellate Court held that an "appropriate emergency response" to an incident included the cost of providing police services at the scene, and, among other possible items, salary costs related to ensuring public safety at the scene of the incident, obtaining appropriate medical assistance, removing vehicles, investigating the cause of the incident, conducting field sobriety tests and, if appropriate, arresting and detaining the subject.

Reimbursement, the Court added, "may also be obtained for time spent away from the scene by responding public agency personnel, provided the response is reasonable and arises from the incident. Thus, for example, salary costs may be recovered for time spent traveling to and from the scene, transporting the subject from the scene, booking the subject, performing chemical tests, writing customarily required reports (including all accident and DUI-related reports that must be completed as a consequence of the incident), and performing follow-up investigation necessary to complete the reports. All of these activities directly arise because of the response to the incident, and must be performed regardless of whether there is a prosecution for a violation of the DUI laws."

The Court concluded that "time spent by responding personnel on activities that are not customarily required as a consequence of investigating and mitigating a DUI incident are not eligible for reimbursement. Thus, salary costs incurred after a subject is booked and required reports prepared are not recoverable as expenses of an emergency response. Such costs, including the cost of an officer's time testifying against a DUI defendant, arise from a decision to prosecute the defendant. These costs are not recoverable under sections 53150 and 53156(a)."

HOW DOES THIS AFFECT YOUR ORGANIZATION:

Here the court corrected what the legislature neglected to put into the Vehicle Code, clarifying what an agency is entitled to seek, as reimbursement for responding to an incident caused by a drunk driver.

Officer Injured Participating In Voluntary Off-Duty
Recreational Social Athletic Activity
Not Entitled To Workers Compensation

CITY OF STOCKTON et al., v. WORKERS' COMPENSATION APPEALS BOARD and SEAN JENNEIAHN (135 C.A. 4 th 1513)

Sean Jenneiahn was employed as a police officer by the City of  Stockton . While off duty and playing in a basketball game, Officer Jenneiahn suffered a fracture of the tibia plateau. The basketball game was not an employer-sponsored event, and the facility where the injury occurred was owned and operated by the Stockton Police Officers' Association, not the City.

The police department has a regulation stating that police officers shall maintain good physical condition. However, after an officer is hired, the department does not require any physical fitness tests or examinations, and no officer has ever been fired or otherwise disciplined for not being physically fit.

This case posed the question whether a police officer injured while off duty, playing in a basketball game at a private facility, is entitled to workers' compensation benefits?

A workers' compensation judge (WCJ) concluded the injury arose out of, and occurred in the course of, the police officer's employment because, in the WCJ's view, the officer reasonably believed that "his participation in cardiovascular activities such as basketball were [sic] expected by his employer." In a two-to-one decision, the Workers' Compensation Appeals Board denied the employer's petition for reconsideration.

The California Court of Appeal, Third Appellate District annulled the award of workers' compensation benefits and remanded to the Workers' Compensation Appeals Board with directions to enter an order denying such benefits. The court opined that when an employee is injured during voluntary, off-duty, participation in a recreational, social, or athletic activity, Labor Code section 3600, subdivision (a)(9) provides that the injury is not covered by workers' compensation, unless the activity was "a reasonable expectancy of" the employment or it was "expressly or impliedly required by" the employment.

The court stated that general assertions that the employer expects an employee to stay in good physical condition, and that the employer benefits from the employee's doing so, are not sufficient for worker's compensation coverage since that would impose virtually limitless liability for any recreational or athletic activity in which the employee chooses to participate--a result that would run afoul of the limitation set forth in Labor Code section 3600, subdivision (a).

HOW DOES THIS AFFECT YOUR ORGANIZATION:

This case, the latest in a long line of off-duty injury cases, should remind administrators of the dangers in participating in, sanctioning and/or encouraging personnel to engage in activities which are likely to cause physical injury, less the employing entity is ready to accept responsibility for workers compensation liability.