Metropolitan News-Enterprise


Monday, May 19, 2008


Page 3


Court: Police Officer Entitled to Benefits for Vacation Injury


By SHERRI M. OKAMOTO, Staff Writer


A police officer who was injured on vacation while he was training for an imminent, mandatory employment-related physical fitness test is eligible for workers’ compensation benefits, this district’s Court of Appeal held yesterday.

Holding that Dave Tomlin, a police officer employed by the City of Beverly Hills who was also a member of the department’s SWAT Unit, had an objectively reasonable belief that his employer expected him to train while he was on vacation, Div. Five annulled a workers’ compensation administrative law judge’s decision denying the officer benefits.

As a member of the SWAT—Special Weapons and Tactics—Unit, Tomlin was required to pass periodic physical fitness tests administered by the department involving a half-mile run, climbing a wall, and dragging a 150 pound weight.

One month before he was to take one such periodic test, Tomlin went on vacation to Jackson, Wyo. While there, he slipped and fell on the sidewalk while running and broke his ankle.

Tomlin sought works’ compensation for his injury, and testified that he had not been directed to train during his vacation and did not inform his supervisors that he would be training during his vacation.

However, he said, he believed his employer expected him to train while on vacation.

The city denied Tomlin’s claim, and the worker’s compensation judge upheld the decision. Finding that the police department “expected [Tomlin] to maintain a level of fitness to pass an agility exam,” the judge nonetheless found it “doubt[ful] the employer expected the employee to be jogging in strange terrain, hundred of miles away while on vacation.”

After the Workers’ Compensation Appeals Board denied Tomlin’s petition for reconsideration, Tomlin sought review from the Court of Appeal.

The city and county emphasized that Tomlin was on vacation at the time of his injury, as well as his testimony that he had been running regularly long before joining the SWAT team and that he regularly runs on vacation.

However, Justice Richard M. Mosk found neither issue dispositive. He wrote:

“The issue is not whether Officer Tomlin enjoyed running, or whether Officer Tomlin would be covered by workers’ compensation if he had been injured while running solely for pleasure. The issue in this case is whether Officer Tomlin’s running at the time he was injured was a reasonable expectancy of his employment.”

Based on the uncontroverted evidence that Tomlin was required by his employer to be fit and pass annual mandatory fitness tests, and citing Wilson v. Workers’ Comp. Appeals Bd. (1987) 196 Cal.App.3d 902 and Kidwell v. Workers’ Comp. Appeals Bd. (1995) 33 Cal.App.4th 1130, Mosk reasoned that the officer’s training for an impending employment-related physical fitness test was a reasonable expectation of employment.

Justice Orville A. Armstrong joined Mosk in his opinion, but Associate Justice Sandy R. Kriegler dissented, writing that Tomlin’s employer would “undoubtedly be stunned” at being held liable for an injury sustained by an off-duty police officer engaged in a routine recreational activity.

Noting that Tomlin’s employer provided paid training and sent the officer to other training events, Kriegler wrote there was nothing in the record to indicate that the department had any notice that Tomlin intended to run “in the dead of winter in the State of Wyoming” while on a personal vacation. She added that that it was objectively unreasonable, as a matter of law, to conclude that Tomlin’s specific form of recreational running was expected by his employer.

The case is Tomlin v. Workers’ Compensation Appeals Board, 08 S.O.S. 2905.


Copyright 2008, Metropolitan News Company