Apr 22

Infernal Affairs: How an Inmate Firefighter Can Get Workers’ Comp

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Those who say crime doesn’t pay have it all wrong. In California, inmates who are doing hard time, whether in city and county jails, industrial farms, or road camps, can get workers’ compensation if they hurt themselves on the job. In one of those three types of correctional facilities, an inmate who suffers an injury while he’s voluntarily working is an employee of the city or county incarcerating him. ((State Comp. Ins. Fund v. WCAB, 35 Cal.Comp.Cases 295 (1970).)) California law thus reverses the traditional rule that a volunteer isn’t an employee and is thus unable to recover workers’ compensation for any injury he suffers while he’s volunteering. 

The catch is that a municipality can force an inmate to work. If an inmate is doing forced labor, he necessarily isn’t a volunteer (and thus not a municipal employee). ((Busbin v. WCAB, 46 Cal.Comp.Cases 611 (1981)(Writ Denied).)) Consequently, an inmate who hurts himself doing forced labor can’t recover workers’ comp. Talk about “hard time.” Fortunately for an inmate firefighter, he can receive workers’ comp if he suffers third-degree burns, falls down a ravine, or just winds up in the jaws of a mountain lion. But an inmate firefighter better not drop the workers’ comp soap by assaulting another inmate or hurting himself while trying to escape.

I. The “Inmate Firefighter” Exception

Penal Code section 4017 carves out a major exception to “forced labor” rule. Under the “inmate firefighter” exception, an inmate who prevents or suppresses “forest, brush, or grass fires” is an employee of the county or city and can recover workers’ comp for any injury he suffers during such work. The “suppression of fires” includes the construction of firebreaks and other works of improvement for both the prevention and suppression of fire. Thus, if an inmate injures himself in a trip-and-fall accident while clearing brush before fire season, he can recover workers’ comp, though he wasn’t putting out a fire.  

Similarly, Penal Code section 4125.1 permits a county board of supervisors to contract with the U.S. or the State of California for any inmate to suppress fires either: (1) “within and on the national forests, state parks, or other lands” of the U.S. or California; and (2) “within and on such other lands, of whatever ownership, contiguous to, or adjacent to said state or federal lands” if suppressing fires on those other lands would protect said state or federal lands from fire. For example, an inmate who injures himself making a fire trail in the Santa Monica National Recreation Area, a federal land, can recover workers’ comp.

II. Exceptions to the “Inmate Firefighter” Exception

A. The “Initial Physical Aggressor” Exception

Even if an inmate firefighter hurts himself on the job, he better not drop the workers’ comp soap. Under Labor Code section 3600(a)(7), the “initial physical aggressor” in a workplace altercation can’t get workers’ comp. ((Lab. Code §3600(a)(7).)) The word “physical” indicates that the Legislature was “primarily concerned with the increased risk of injury [that] arises when a quarrel moves from an exchange of hostile words and nonviolent gestures to a trading of physical blows.” ((Matthews v. WCAB, 6 Cal.3d 719, 727 (1972).)) Thus, an inmate is the “initial physical aggressor” if he first engages in “physical conduct” that one would reasonably perceive to be a “real, present and apparent threat of bodily harm.”

Similarly, Labor Code section 3370(a)(1) makes an inmate’s injury non-compensable if it results from an assault in which he was the “initial aggressor.” The statute omits the term “physical,” however, suggesting that the Legislature intended to bar an aggressive inmate from getting workers’ comp for any assault, even if he confined his aggression to insults. But Section 3370(a)(1) only applies to state inmates. Why the Legislature didn’t extend the harsher “initial aggressor” rule to municipal inmates is unclear. For now, they benefit from the more lenient “initial physical aggressor” rule – the reason being that a court can’t rewrite a statute. ((People v. Gipson, 213 Cal.App.4th 1523, 1530 (2013).))

B. The “Intentional Self-Injury” Exception

Inmates hurt themselves even when they aren’t squaring off in the yard. For that reason, Labor Code section 3600(a)(5) makes a non-inmate’s “intentionally self-inflicted” injury non-compensable. In other words, he must have a “deliberate intent…to cause injury to himself…not a mere failure to realize the probable consequences of the action.” ((County of Santa Cruz v. WCAB, 47 Cal.Comp.Cases 1136 (1982).)) Thus, an employee who punches a wall out of anger, without the intent to hurt himself, may still recover workers’ comp. ((Id.)) Conversely, an inmate firefighter who throws himself down a ravine probably isn’t “merely failing to realize the probable consequences of the action.”

 Similarly, Labor Code section 3370(a)(1) bars workers’ comp for an injury resulting from “an intentional act of the inmate injuring himself.” This language seems to exclude more injuries than the exception for an “intentionally self-inflicted injury” does. The reference to an “intentional act,” as opposed to an “intentionally self-inflicted injury,” suggests that Section 3600(a)(5) excludes all self-inflicted injuries, not just those where the inmate intends to hurt himself. Like the “initial aggressor” exception, however, the exception for “an intentional act of the inmate injuring himself” of Section 3600(a)(5) only applies to state inmates.

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.