Recent Releases
Vacation Injury Work Related for Police Officer
May 28, 2008
It is certainly not unusual to see the courts extend extra deference to public safety officers coming before court with arguments that for most of us would be a real stretch as employment related activities. Such as stretch was made by the 2nd Appellate District in Tomlin v WCAB in a decision recently published.
Officer Tomlin was a member of the Beverly Hills Swat team as well as a city police officer. While on vacation in Jackson, Wyoming on December 30, 2005 (remember the place and time for later reference) he was running and slipped sustaining a broken ankle. Tomlin testified at his hearing that he was running in preparation for the annual physical fitness test to be conducted in January of 2006. The trial judge and W.C.A.B. declined to find the running activity to be in the course and scope of employment holding that it would not reasonably be contemplated that an employee’s activities while on vacation would be employment related. The trial judge opined as follows:
“…if one accepted Officer Tomlin’s position that his injury was work related, “then every SWAT Officer in this State is covered for Workers’ Compensation 24 hours a day, any place in the world.”
The WCAB denied reconsideration, adopting the WCJ’s report.
The Court of Appeals, in a 2-1 decision was considerably more accepting of applicant’s position. The court noted that there was no contrary evidence to the applicant’s testimony he was expected to train and be prepared for the fitness testing. The court therefore noted that the only issue was whether it was reasonable for the officer to believe that he was expected to continue training while on vacation in Wyoming. The Appellate Court analogized the issue to the holding in Wilson v. Workers’ Comp. Appeals Bd. (1987) 196 Cal.App.3d 902 (Wilson). In that case an officer, also a SWAT team member, was running while off duty and the Court had little difficulty in concluding the officer’s belief that he needed to run to prepare to similar testing brought the activity under the AOE-COE umbrella of workers’ comp. Relying on that decision the court found several corollaries :
As in Wilson, assignment to SWAT is voluntary, and Officer Tomlin is not compensated for, or supervised during, his off-duty training, but those facts are not determinative. (Id. at p. 907.) Officer Tomlin was injured while training for an imminent, mandatory, employment-related physical fitness test. Officer Tomlin’s supervisor had advised the SWAT members that they were required to pass the fitness test. As in Wilson, Officer Tomlin’s training activities when he was injured were a reasonable expectancy of his employment. (§ 3600, subd. (a)(9).)
The WCJ referred to Officer Tomlin running on a “strange terrain” “hundreds of miles away” and expressed concern that affording Officer Tomlin coverage for his injury in this case means that “every SWAT Officer in this State is covered for Workers’ Compensation 24 hours a day, any place in the world.” If a SWAT officer is injured in a work-related activity, there is no reason why it should matter for purposes of section 3600, subdivision (a)(9) where the officer is or what time of day it is when the injury occurs. The relevant inquiry under section 3600, subdivision (a)(9) is whether the activity is a reasonable expectancy of the officer’s employment. There is no indication in the record that Officer Tomlin was jogging on a terrain or in conditions that were unreasonably dangerous for jogging, and the City does not argue that Officer Tomlin is ineligible for benefits on that basis.
The Majority decision reversed the W.C.A.B. denial of injury and ordered benefits paid.
Now for the rest of the story.
The dissenting opinion paints a different picture of the events and employer’s risk.
“The management of the City of Beverly Hills (the City) will undoubtedly be stunned to discover that it is responsible under the workers’ compensation law for an injury suffered by an off-duty police officer engaging in his routine recreational activity of running during a personal vacation in the dead of winter in the State of Wyoming, one thousand miles from the officer’s place of employment…There is nothing in the record to show that the City had any notice that Officer Tomlin intended to run, on a slippery sidewalk, in the winter in Wyoming. Certainly there is nothing in the record before this court to even remotely suggest that Officer Tomlin could entertain an objectively reasonable belief that running under the conditions in this case was expected of his employment. To hold the City responsible under the workers’ compensation law for Officer Tomlin’s injury runs afoul of the legislative intent behind Labor Code section 3600, subdivision (a)(9).[1]…”
The dissenting justice noted the city provided 4 days of training for the Swat team members per month as well as other training events paid for by the city. As such the officer’s perception that the training while on vacation was anticipated by the city failed the “objectively reasonable” test under Ezzy v W.C.A.B. The dissent also was concerned with now to draw the line for what kind of activity would be included. Simply substitute skiing, snowboarding, mountain biking or climbing or a host of other activities for “running” in this decision, suggests the court and almost any activity becomes work related no matter how outlandish.
This case certainly seems to extend the somewhat reasonable interpretation in Wilson (jogging on a Community College track near the applicant’s job) to much greater scope of coverage. In addition to the activities mentioned by the dissenting justice consider other activities such as skydiving, skindiving, waterskiing, bungee cord jumping, skeet shooting, paintball games etc and one can see how far this analysis can be carried.
The real test of how far the majorities rational will go will be whether this case represents the outside limits of an employee’s “objectively reasonable perception” or just another step to another extension on the way to 24 hour coverage for specified employees.
For a copy of the decision, please click HERE.
Thank you to Mr. Richard M. Jacobsmeyer of Shaw, Jacobsmeyer, Crain, Claffey & Nix, LLP for his in-depth and comprehensive analysis of this important and preposterous decision.