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BEVERLY HILLS SWAT OFFICER'S INJURY DEEMED WORKED RELATED WHEN INJURED OFF DUTY ON VACATION.
By: Paul F. Ferrone, Esq.*
Officer Tomlin has been employed with the Beverly Hills Police Department since December 1994, and has been a member of BHPD SWAT for seven years. SWAT officers are required to pass an annual physical fitness test that requires running.
In November 2005, Officer Tomlin was informed by his supervisor that the physical fitness test was scheduled for January 2006. Tomlin’s supervisor relayed that all team members were required to pass the test to remain on SWAT. Consistent with the requirement to both maintain a high level of physical fitness and pass the test, Officer Tomlin began a course of physical training. Officer Tomlin’s main strength activity was running. Officer Tomlin had concurrent vacation plans out of state in Jackson, Wyoming. The vacation was approximately seventeen (17) days (from December 26, 2005 through January 11, 2006) – occurring immediately prior to the physical fitness test.
On December 30, 2005, while on vacation in Jackson, Wyoming, Officer Tomlin went for a three-mile run. Near the end of his run he slipped on a sidewalk and broke his left ankle. As a result of his ankle injury, Officer Tomlin was temporarily totally disabled from January 12, 2006 through March 15, 2006. Additionally there was some residual permanent disability.
Officer Tomlin applied for workers’ compensation benefits contending both the activity he participated in (running) and the reasonable expectancy of the impending test warranted a work injury. The City contended his injury was non-industrial because it occurred while he was voluntarily participating in an off-duty athletic activity on vacation in Jackson, Wyoming. The Workers’ Compensation Judge (“WCJ”) agreed with the City, and “doubted the City expected its employee to be jogging in strange terrain, hundreds of miles away while on vacation.” The WCJ concluded Officer Tomlin’s belief that he was expected to jog during his vacation in Jackson, Wyoming was not objectively reasonable. Officer Tomlin filed an appeal with the Workers’ Compensation Appeals Board. This too was denied. Officer Tomlin petitioned the Court of Appeal for a writ of review, which was granted.
The Court of Appeal relied on Ezzy v. Workers’ Compensation Appeals Board (1983) (146 Cal.App.3d 252; 194 Cal.Rptr. 90; 48 Cal. Comp. Cases 190) which provides a two prong analysis to determine compensability for off duty injuries. The two elements are: (i) the employee subjectively believes his or her participation in the activity is expected by the employer, and (ii) the belief is objectively reasonable.
The Court of Appeal reversed the WCJ and held that Officer Tomlin’s physical training injury, even though occurring while on vacation, is compensable as a workers’ compensation benefit. The decision was certified for publication: Tomlin v. WCAB (2008) 162 Cal.App. 4th 1423, 73 CCC 593.
The Court, utilizing the Ezzy test, focused on the second element; whether Officer Tomlin’s belief was objectively reasonable. The first element had been met – Officer Tomlin testified he believed that the BHPD expected him to train for the SWAT physical fitness test while on vacation. He relayed, not working out for 17 days would have compromised his ability to pass the test. The WCJ concluded Officer Tomlin’s belief was not objectively reasonable.
In analyzing the objective reasonable element, the Court of Appeal noted that BHPD members of SWAT are required to pass the physical fitness test to quality for the unit – a test administered yearly. Officer Tomlin was injured while training for an imminent, mandatory, scheduled employment-related physical fitness test. A test his supervisor advised Tomlin was required to pass.
The Court did not decide whether an injury suffered during physical training during other parts of the year to maintain fitness would be compensable. Instead, the Court focused on the fact that Tomlin was expected to train in anticipation of a scheduled, imminent fitness test.
The City emphasized that Officer Tomlin was on vacation in Jackson, Wyoming when the injury occurred. The Court noted “it should make little difference whether Officer Tomlin was running while off duty after his shift in Beverly Hills or running off duty while on vacation in Jackson, Wyoming. In either case, he was engaged in training and maintaining fitness for an imminent, employer-mandated physical fitness test. If he did not continue his physical training during this period, he might not be able to fulfill the expectation of the City to be physically fit.”
The City argued that Tomlin was on “strange terrain” “hundreds of miles away,” and expressed concern that “every SWAT Officer in this State is covered for Workers’ Compensation 24 hours a day, any place in the world.” The Court noted that there was no indication Officer Tomlin was jogging on terrain or in conditions that were unreasonably dangerous for jogging and found that neither the location of the injury nor weather conditions at the time had any relevance to this matter. The Court did not decide whether Officer Tomlin’s injury would be compensable had he been injured while engaged in other types of activities or under different conditions.
The Court noted on several occasions that the specific facts in Tomlin were determinative. As such, every off-duty injury must be analyzed on its own merits. First, whether the employee subjectively believes his or her participation in the activity is expected by the employer. Tomlin’s activity was running. He was required to pass a running test. Second, the belief was objectively reasonable. To remain a SWAT member, Tomlin had to pass the test. The test was imminent and employer-mandated.
*About the author: Paul F. Ferrone, Esq., is a managing partner at Adams, Ferrone, & Ferrone, and successfully argued before the Court of Appeal to overturn the WCJ and WCAB in the Tomlin case. Adams, Ferrone & Ferrone specializes in the representation of public safety in labor negotiations, internal affairs investigations, officer involved shootings, workers’ compensation, personal injury litigation and retirement. The firm is located in Westlake Village with offices in Bakersfield, Newport Beach, and San Diego. If you have further questions, please e-mail inquires to pferrone@adamsferrone.com or call (866) 373-5900.
