Summary
upholding benefits for volunteer firefighter's injuries sustained while acting as a flagman at motorcycle races
Summary of this case from Teller Cnty. v. Indus. Claim Appeals Office of Colo.Opinion
No. 76-651
Decided May 26, 1977. Rehearing denied June 9, 1977. Certiorari denied July 25, 1977.
Volunteer fireman was injured as he directed motorcycle race in Fourth of July celebration and was awarded workmen's compensation benefits. Fire protection district sought review.
Order Affirmed
1. WORKERS' COMPENSATION — Volunteer Fire Department — Custom — Participate — Independence Day Celebration — Injury to Fireman — Activity — Within Scope of Employment. In regard to workmen's compensation claim by volunteer fireman who was injured while participating in traditional Independence Day celebration, the fire department's participation in the event evidenced such a pattern or custom that such participation was well within the scope of a volunteer fireman's employment in that community.
2. Volunteer Fireman — Participation — Independence Day Celebration — As a Fireman — Or — As Patriotic Citizen — Issue of Fact — Resolution — Binding on Review. Where volunteer fireman sought workmen's compensation benefits for injury incurred during his participation in Independence Day celebration, since participation in that patriotic celebration was within the scope of employment of a volunteer fireman in the community, the question of whether the claimant was participating as a volunteer fireman, or merely as a patriotic citizen, became basically a factual determination, and there being ample evidence to support the referee's conclusion that claimant was injured while serving as a volunteer fireman, that factual conclusion is binding on review.
Review of Order from the Industrial Commission of the State of Colorado
James A. May, Francis L. Bury, Robert S. Ferguson, for petitioners.
George H. Ottenhoff, for respondent Patrick L. Salazar.
J. D. McFarlane, Attorney General, Bruce C. Bernstein, Special Assistant Attorney General, for respondent Industrial Commission of Colorado.
Petitioners, Northwest Conejos Fire Protection District Division of State Compensation Insurance Fund, seek review of the award of Workers' Compensation benefits by the Industrial Commission to Patrick L. Salazar for injuries suffered in July, 1974, which the Commission found were sustained in an accident arising out of and in the course of his employment. We affirm.
Salazar was a volunteer fireman in La Jara, Colorado. For as long as Salazar had been a volunteer fireman (about six years) the volunteer fire department had assisted in a local Fourth of July celebration known as "Lasso Day." For this celebration Salazar was assigned by the fire chief, as he had been in each previous year, to act as a flagman at the motorcycle races. He wore his fire department T shirt, as he was instructed to do, while performing these duties. During the races, Salazar was struck by a motorcycle and severely injured. The Commission agreed with the referee's findings and conclusions: That Salazar was in the course of his employment at the time of the injury, and that his injury arose out of an accident occurring within the scope of his employment, and was therefore compensable.
Members of volunteer fire departments are defined as employees under the Workers' Compensation Act, "while said persons are actually performing duties as volunteer fireman . . . and while engaged in organized drills, practice, or training necessary or proper for the performance of such duties." Section 8-41-106(1)(a)(I), C.R.S. 1973.
Petitioners contend that at the time of injury, Salazar was performing a voluntary patriotic duty which had no relationship to his employment as a volunteer fireman. As a basis for this contention, petitioners assert that, as a matter of law, Salazar was not acting in his capacity as a volunteer fireman because there is no statutory authority for fire protection districts to engage in the activities here involved. We find this interpretation of the statutes to be too narrow.
The specific purpose for forming a fire protection district is to supply protection against fires. See 32-5-302(2), C.R.S. 1973. Sections 32-5-314 and 32-5-338, C.R.S. 1973, delineate specific powers the district boards and fire chiefs have in carrying out this purpose. However, as a result of custom and practice, other activities, such as participation in patriotic celebrations, have become part of the normal activities of volunteer fire departments, and when injuries have occurred in the course of these activities, compensation has been allowed. See Chavoya v. Industrial Accident Comm'n, 22 Cal. App. 2d 652, 72 P.2d 236 (injury while operating a floodlight truck at a public celebration); Koktavy v. City of New Prague, 246 Minn. 550, 75 N.W.2d 774 (injury while detonating aerial bombs during a bond rally); Forester v. Keansburg Fire Department, 84 N.J. Super. 324, 202 A.2d 182 (heart attack while participating in Memorial Day celebration); Village of Hilbert v. Department of Industry, Labor and Human Relations, 40 Wis.2d 598, 162 N.W.2d 596 (injury sustained by falling from fire truck while returning from a parade in a neighboring town).
We find no intent in the statutes setting forth the powers of fire protection districts to exclude these incidental activities from the scope of employment of volunteer fireman. To the contrary, § 32-5-314, C.R.S. 1973, after enumerating several specific powers, states:
"Such specific powers shall not be considered as a limitation upon any power necessary or appropriate to carry out the purposes and intent of this part 3." (emphasis supplied)
The general intent for creating fire protection districts is expressed in the legislative declaration, § 32-5-301, C.R.S. 1973, which states:
"It is declared that the organization of fire protection districts . . . will serve a public use and will promote the health, safety, prosperity, security, and general welfare of inhabitants of said districts."
Rather than being contrary to this legislative declaration, participation by volunteer firemen in public ceremonies and activities can only help to promote the ends stated in the declaration. While not an emergency activity, supervision of motorcycle races by the fire department was a service to the community, and promoted its safety and general welfare, and was therefore within the purposes set out in the legislative declaration. Also, through these activities, the department could create good will and interest in the volunteer fire department among members of the community, a factor to be considered in deciding if the activities are incident to employment as a volunteer fireman. See Denver v. Lee, 168 Colo. 208, 450 P.2d 352 (policeman awarded compensation for injury received while playing basketball for a police department team).
[1] Furthermore, because the participation here had been customary for the fire department ever since the Lasso Day celebration had been instituted, the fire department's participation evidenced such a pattern or custom as to bring that activity well within the scope of a volunteer fireman's employment in La Jara. See Koktavy v. City of New Prague, supra; Village of Hilbert v. Department of Industry, supra.
[2] Since participation in this patriotic celebration was within the scope of employment of a volunteer fireman, the question of whether Salazar was participating as a volunteer fireman, or merely as a patriotic citizen, becomes basically a factual determination. There is ample evidence to support the referee's conclusion that Salazar was injured while serving as a volunteer fireman, and this factual conclusion is therefore binding on review. Denver v. Lee, supra.
Petitioners, however, argue that because Salazar was not required to participate, this activity was not part of his employment, but rather the act of a patriotic citizen. The same can be said of his status as a volunteer fireman, even when fighting fires. Indeed, it is the very act of becoming a volunteer fireman in the first place that is suffused with a strong element of public service, but once "employee" status within the meaning of the Workers' Compensation Act has been conferred on volunteer firemen, "the ventures they undertake because they are volunteer firemen should be deemed to be within the scope of employment, although if undertaken by anyone else, they would perhaps be labeled patriotic activities." 1 A. Larson, Workers' Compensation Law § 27.34 at 5-256.
Order affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE RULAND concur.