A recent Workers’ Compensation Appeals Board (WCAB) panel decision—D’Alessandro v. City of Menifee—addresses whether a police officer’s off-duty knee injury while taking a jiu-jitsu class qualified as industrial. In a split decision, the WCAB granted the officer’s Petition for Reconsideration and found that his activity was sufficiently tied to his employment and considered AOE/COE.
D’Alessandro provides helpful guidance on applying Labor Code § 3600(a)(9)’s recreational-activity exception and the Ezzy test (i.e., whether off-duty activity is a “reasonable expectancy” of employment).
Factual Snapshot
- Applicant’s Role: A police officer on the department’s Defensive Tactics (D-Tac) team, partially responsible for training fellow officers.
- Alleged Injury: Left knee injury on August 8, 2022, during an off-duty jiu-jitsu class.
- Applicant’s Argument:
- Received an email from superiors urging the team to stay in shape and “look the part.”
- Off-duty jiu-jitsu training was implied to maintain D-Tac proficiency.
- Discussions with colleagues bolstered his belief that extra classes would fulfill department expectations.
- Defendant’s Position:
- The City never explicitly directed off-duty jiu-jitsu practice.
- A general “stay in shape” instruction does not convert all athletic pursuits into industrial activities.
The Majority Opinion: Off-Duty Classes Were “Reasonably Expected”
- Ezzy’s Two-Prong Test
Under Ezzy v. WCAB (1983), off-duty recreation is compensable if the employee:- Subjectively believes participation is expected by the employer, and
- That belief is objectively reasonable.
- Subjective Belief
The officer stated he felt obligated to engage in additional jiu-jitsu training because of the department’s emphasis on grappling-based arrest techniques (Gracie Survival Tactics). - Objectively Reasonable
The WCAB majority found it reasonable to interpret the email and workplace environment as “impliedly requiring” advanced martial arts proficiency. While no direct order was issued, supervisors encouraged the D-Tac team to remain fit and “train in a variety of defense tactics disciplines.” - Result
The majority concluded that even though the officer was off duty, his participation in jiu-jitsu flowed from his employment—thus satisfying Labor Code § 3600(a)(9)’s “reasonable expectancy” exception. The injury was held compensable.
The Dissenting View
Commissioner Razo favored noncompensability, likening the scenario to City of Stockton v. W.C.A.B. (Jenneiahn) (2006) 135 Cal.App.4th 1513. There, the court ruled that a general “stay in shape” requirement did not transform all off-duty athletic activities into industrial ones. The dissent here concluded that no specific mandate existed, making the officer’s belief objectively unreasonable.
Key Lessons for Employers & Adjusters
- General Fitness vs. Implied Orders
- Vague statements like “stay in shape” and “look the part” can be read—under certain conditions—as quasi-directives for off-duty training.
- Documentation & Clarity
- Employers should delineate whether any specific off-duty program is required or merely optional to avoid confusion about implied expectations.
- Fact-Specific Analysis
- Each scenario turns on its unique details. Emails, departmental culture, and the officer’s job duties all factor heavily into whether off-duty activity is compensable.
- Panel Decisions: Persuasive, Not Binding
- D’Alessandro is one panel’s reading of these facts. Even if it had been labeled “significant,” it still would not be binding on other panels or judges. Nonetheless, it offers a window into current thinking at the Board.
Need Guidance?
For questions about this decision or other workers’ compensation issues, our firm can help. Visit us at www.rjylaw.com to learn more about our services in defending and managing complex claims.
