The question of when volunteer firefighters are covered by workers' compensation benefits is one that arises frequently. Obviously, traumatic injuries that occur on the fireground present little difficulty in determining eligibility. However, when the injury takes place elsewhere, the resolution is much less clear. This became evident once again in Halsey-Shedd RFPD v. Randall D. Leopard, Court of Appeals of Oregon, No. A108543 (2002).
Randall D. Leopard was the second assistant fire chief for the Halsey-Shedd (Ore.) Rural Fire Protection District. The district consists of three stations in three towns. He joined the department in 1995 as a volunteer firefighter and was promoted until he reached the rank of second assistant fire chief in 1997.
As second assistant chief, he was required to be in command when the first assistant chief and the fire chief were unavailable. Furthermore, on every third weekend he assumed the duty as lead person in charge of responding to emergencies. On those weekends, his shift began Friday at 6 p.m. and ended the following Monday at 6 a.m. His duties included ensuring that proper staffing was available and touring the three fire stations. He also was required to be present during investigations and to respond to every emergency that occurred on those weekends. For these services, he was paid $600 per year.
On those weekends when he served as lead person, he typically wore a fire department logo shirt and carried his firefighting gear in his vehicle. He also was required to carry two different pagers, both provided by his employer, to receive emergency calls. In addition, when he was in charge he used a fire district truck in place of his own vehicle in case he had to respond to emergencies. The purpose of this arrangement was to ensure that he responded as quickly as possible. He didn't use the truck to transport family members or friends, and when he wasn't using it, the truck was kept at one of the fire stations.
On Sunday, Jan. 17, 1999, Leopard was on duty and in charge as the lead person. That morning, he was preparing to leave his home to go to church with his family. His wife and son had already started walking to the church, which was two blocks away. He was assisting a friend, who was also leaving his home, with her small child by holding the child while she went back to retrieve something from his home.
While carrying the child, he began to walk across his dirt-and-gravel driveway toward the fire district truck. Leopard's pager then went off, and he reached down and removed it from its case. It's unclear if the page was work-related because Leopard was permitted to receive personal calls on his pagers. He did not read the number on the pager at that time, and when he later checked it, the number had been erased from the pager's memory. Fire department records showed that no emergency calls came in at the time in question.
While examining his pager, Leopard stepped onto his left foot and then stepped back on his right foot, at which point he slipped on some dirt and gravel. His foot slid inward and his ankle rolled. Leopard fell to the ground, injuring his lower right leg and ankle. He later specifically acknowledged that his act of reaching for his pager had nothing to do with his fall.
He received emergency care from members of the fire district who responded to his subsequent call. He was then taken by ambulance to the hospital, where he was diagnosed with a fracture of the distal fibula. He missed five weeks of work at his full-time employment, and also missed work at the fire district due to the injury.
On those weekends when he was not serving as the lead person, he typically walked to church with his family. The walk takes approximately two to three minutes. If he had not been walking toward the fire duty truck at the time of injury, he would have taken another path to church. Instead, he was walking toward the truck to unlock it at the time that he was injured. He wasn't going to transport his friend or her child to church in the fire district truck.
Leopard filed a claim for workers' compensation benefits and the fire district denied the claim. The matter then went on for hearing before an administrative law judge, who ruled in Leopard's favor and awarded him workers' compensation benefits. The fire district appealed this decision to the Workers' Compensation Board, which affirmed the ALJ's ruling. The board, like the ALJ, concluded that although Leopard was at his home preparing to leave for church at the time of his injury, the connection between his injury and his employment was sufficient to warrant compensation. The fire district then appealed the board's decision to the Oregon Court of Appeals.
The court began by observing that the central issue was whether Leopard's injury was sufficiently connected to his work as a volunteer firefighter to be compensable under the workers' compensation law. Only those injuries that occur “in the course of” and “arise out of” employment are compensable under that law. For an individual to be eligible for compensation, he must pass this two-part “work-connection” inquiry that asks whether the relationship between the injury and the employment is sufficiently close for the injury to be compensable.
Each prong of this test examines a different aspect of the possible work connection. The requirement that the injury occur “in the course of” employment relates to the time, place and circumstances of the injury. The “arise out of” prong tests the causal relationship between the worker's injury and his or her employment. The work-connection test may be satisfied if the factors supporting one prong of the statutory test are weak while the factors supporting the other prong are strong. However, both prongs must be satisfied to some degree.
The court stated that when the board concluded that the work-connection test was satisfied, it did not separately analyze both prongs of the test. Instead, the board relied on four factual circumstances to support its conclusion that the work connection was sufficient. Specifically, the board held that when Leopard fell:
- He was on paid duty;
- He had received a page on his employer-provided pager, which he was required to wear while on duty;
- He was walking to a fire district vehicle that his employer required him to use; and
- He had altered the route he would have taken to go to church by walking toward the fire district vehicle.
The court said that these factors all relate to the time, place and circumstances of the injury. Consequently, they bear on whether the injury arose “in the course” of Leopard's employment. An injury occurs in the course of employment if it takes place within the period of employment, at a place where a worker reasonably may be expected to be, and while the worker reasonably is fulfilling the duties of employment or is doing something reasonably incidental to it. The court went on to say that it agreed that at least some of the factors identified by the board supported the conclusion that Leopard's injury arose in the course of his employment.
The court stated that on-call status, although not sufficient in and of itself to satisfy the “arises out of employment” prong of the test, conceivably can provide a basis to conclude that a worker's injury has occurred in the course of employment. The court agreed that in this case, Leopard's on-duty status did provide a minimal time, place and circumstance connection to employment, especially in combination with the other factors identified by the board. In particular, in addition to his on-duty status, he was walking toward the fire district vehicle and checking his work pager when the injury occurred. The court determined that answering the pager was among Leopard's work responsibilities, independent of whether the call was work-related or not.
The court went on to say, however, that the time, place and circumstances also had a significant non-work component. Specifically, Leopard was primarily engaged in the personal activity of going to church, and many of the circumstantial facts involved, such as the decision of whether and when to go to church, how the child was carried, and the composition of the driveway, weren't employment-related at all.
The court said that this wasn't a case in which, “but for the employer's directive,” the claimant would not have been where he was and doing what he was doing. Rather, Leopard was engaged in the personal activity of going to church and was walking to the fire district vehicle only as an incident to that personal activity. In other words, “but for” his decision to pursue that nonwork activity, he would not have had to go to the fire district vehicle at all when he did.
The court said that his activity at the time of his injury therefore is most accurately characterized as significantly personal in nature, with an incidental connection to work. The court went on to say that although it agreed that there was some circumstantial connection to work — enough to characterize the injury as occurring “in the course” of employment — the connection was not a strong one. Thus, Leopard satisfied the first prong of the test.
The court then went on to examine the second prong of the work-connection test: whether the injury “arose out of” the employment. This inquiry examines whether a causal link exists between the claimant's injury and a risk connected with employment. To satisfy this prong of the analysis, the causal connection must be linked to a risk connected with the nature of the work or a risk to which the work environment exposes the claimant.
The court held that none of the factual circumstances identified by the board relate to causation generally, or to the more specific requirement that the injury be due to a risk arising from the nature of the work or the work environment. Rather, the court characterized them as describing only the circumstances of the injury.
Leopard specifically acknowledged that his act of reaching for his pager had nothing to do with his fall. Nor did the route that he took to the fire district vehicle entail a distinctively different risk of injury than the route that he would have taken had he walked to church. To the contrary, the route that Leopard would have followed had he walked to church also would have entailed crossing his dirt and gravel driveway.
Finally, the fact that Leopard was on duty was not, standing alone, a basis to conclude that the injury was caused by his employment. Leopard's on-duty status, in and of itself, was indistinguishable in practical terms from being on call, which the court noted that past decisions had held does not render an off-premises injury compensable unless the employee was called to duty or the employee's activities were significantly restricted by the employer.
The court concluded that although the activities in which Leopard was engaged provided a minimal circumstantial connection between his injury and his work, they didn't also provide the requisite causal relationship between the two. The risk that his foot would slip on the dirt and gravel in his own driveway was not a risk “distinctly associated” with being a firefighter. Stated another way, it was not a risk that was inherent in the “nature” of his work as a firefighter. It was, rather, a risk that existed whenever Leopard walked from his house across his driveway, for whatever reason he might choose. The connection between that risk and Leopard's work activities were coincidental, not causal.
The court then found that Leopard did not meet his burden of establishing a causal connection between his injury and his work, and therefore did not satisfy the “arises out of employment” prong of the work-connection test. Since both prongs of the test must be satisfied to some degree, the court concluded that the board erred in concluding that Leopard's injury was compensable, and overturned the award of workers' compensation benefits.
The difficulties presented by this type of circumstances can be reduced by doing the following:
- Having clear, written policies prescribing when employees are on duty and their responsibilities.
- Reviewing the issue of workers' compensation coverage with your department's insurance carrier. Ask for a presentation on coverage to your governing body.
- Educating department members about coverage issues.
Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the NVFC Foundation, and current NVFC chair. Stittleburg sits on the NFPA board of directors and has served on the committee for NFPA 1500, Fire Department Occupational Safety and Health Program.