Tomlin v. Workers' Comp. Appeals Bd.

76 Cal.Rptr.3d 672

162 Cal.App.4th 1423

Dave TOMLIN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and the City of Beverly Hills, Respondents.

No. B199429.

Court of Appeal, Second District, Division 5.

May 16, 2008.

Adams, Ferrone, Ferrone, Paul F. Ferrone, Westlake Village, and E. Earl Dove, for Petitioner.

John B. Tharp, for Respondent City of Beverly Hills.

No appearance for Respondent Workers' Compensation Appeals Board.

Raymond G. Fortner, Jr., County Counsel, Leah D. Davis, Acting Assistant County Counsel, Derrick M. Au, Principal Deputy County Counsel, Jason E. Waller, Senior Associate County Counsel for County of Los Angeles as Amicus Curiae in support of Respondents.

MOSK, J.

INTRODUCTION

Petitioner Dave Tomlin is a member of the City of Beverly Hills Police Department (BHPD) Special Response Team, referred to as SWAT (Special Weapons and Tactics Unit). Officer Tomlin sustained an injury while on vacation, training for an upcoming departmental physical fitness test. The Workers' Compensation Administrative Law Judge (WCJ) denied Officer Tomlin workers' compensation benefits. The Workers' Compensation Appeals Board (WCAB) denied his petition for reconsideration. We granted Officer Tomlin's petition for a writ of review, and we now annul the WCAB's decision denying Officer Tomlin benefits. We hold that Officer Tomlin's physical training injury, even though occurring while on vacation, is compensable as a workers' compensation benefit.

BACKGROUND

A. Factual Background

Officer Tomlin has been employed by the BHPD since December 1994, and has been a member of the BHPD SWAT for seven years. In addition, Officer Tomlin is an instructor in defense tactics, both for SWAT and for other BHPD police officers.

SWAT handles high-risk situations for the BHPD, including riot control and serving warrants in potentially dangerous conditions. Officers assigned to SWAT are on call 24 hours a day, seven days a week. Assignment to SWAT is voluntary. Officers are required to pass a physical fitness test prior to joining SWAT and to pass an annual physical fitness test involving a half-mile run, climbing a wall, and dragging 150 pounds. If an officer fails to qualify for SWAT, he or she is still eligible for employment as an officer with the BHPD. Those officers not in SWAT do not have to pass such periodic physical fitness tests. Officer Tomlin testified that a member of SWAT recently was reprimanded for not being physically fit when the officer failed to climb a wall while on assignment.

The BHPD pays Officer Tomlin to train four days each month, and has sent him to train at Camp Pendleton and out of state. Officer Tomlin otherwise maintains his physical fitness by running, bicycle riding, and weight lifting with other SWAT team members outside of work. He is not paid for these outside workouts. Officer Tomlin has been running three or four times a week for the past 15 years, and covers three to six miles per run. He normally runs while on vacation to maintain his fitness.

In November 2005, a supervisor informed SWAT members that SWAT's annual physical fitness test would be administered in January 2006. Officer Tomlin began a course of fitness training to prepare for the test, and expected to continue training during a two-week vacation he had scheduled from December 26, 2005, to January 11, 2006. Officer Tomlin was not directed by a supervisor to train during his vacation, and he did not inform his supervisors that he would continue training during vacation. He believed, however, that it was expected that he would continue to train for the physical fitness test during his vacation.

On December 30, 2005, while on vacation in Jackson, Wyoming, Officer Tomlin went for a three-mile run. Near the end of the run, he slipped on a sidewalk when rounding a corner. His left foot struck the curb as he fell, and he broke his left ankle. Although there was a reference to the sidewalk being slippery, there is no indication in the record that the injury resulted from the terrain or inclement conditions. The injury required surgery and kept Officer Tomlin out of work until March 16, 2006, when he was able to resume work with modified duties. He later resumed his full duties. He was unable to take the January 2006 physical fitness exam, but took and passed a subsequent test.

B. Procedural Background

Officer Tomlin applied for workers' compensation benefits arising out of his running injury. The City of Beverly Hills (the City) denied his claim, asserting that his injury occurred while he was voluntarily participating in an off-duty recreational or athletic activity. (Lab.Code, § 3600, subd. (a)(9).)¹ The WCJ agreed with the City. Applying the two-part test from Ezzy v. Workers' Comp. Appeals Bd. (1983) 146 Cal.App.3d 252, 194 Cal.Rptr. 90 (Ezzy), the WCJ concluded that Officer Tomlin's belief that the BHPD expected him to jog during his vacation was "not objectively reasonable." Although the BHPD "expected [Officer Tomlin] to maintain a level of fitness to pass an agility exam," the WCJ "doubt[ed] the employer expected the employee to be jogging in strange terrain, hundreds of miles away while on vacation." In his Report and Recommendation on Officer Tomlin's petition for reconsideration, the WCJ added that, 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. Officer Tomlin petitioned this court for a writ of review, which was granted.

DISCUSSION

A. Standard of Review

"When there is no real dispute as to the facts, the question of whether an injury was suffered in the course of employment is one of law, and a purported finding of fact on that question is not binding on an appellate court. [Citations.]" (City of Los Angeles v. Workers' Comp. Appeals Bd. (2007) 157 Cal.App.4th 78, 83, 68 Cal.Rptr.3d 343; accord, Dimmig v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 860, 864-865, 101 Cal.Rptr. 105, 495 P.2d 433.) Accordingly, whether it was objectively reasonable for an employee to believe that his or her employer expected participation in an off-duty recreational, social or athletic activity is "a question of law that we determine independently." (City of Stockton v. Workers' Comp. Appeals Bd. (2006) 135 Cal.App.4th 1513, 1524, 38 Cal.Rptr.3d-474 (City of Stockton).)

B. Officer Tomlin's Injury is Compensable

Section 3600 provides, in relevant part, "(a) Liability for the compensation provided by this division ... shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment ..., in those cases where the following conditions of compensation concur: [¶] ... [¶] (9) Where the injury does not arise out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee's work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment." (§ 3600, subd. (a)(9).) "[T]he test of `reasonable expectancy of employment' ... consists of two elements: (1) whether the employee subjectively believes his or her participation in an activity is expected by the employer, and (2) whether that belief is objectively reasonable." (Ezzy, supra, 146 Cal.App.3d at p. 260, 194 Cal.Rptr. 90.) Officer Tomlin testified that he believed that the BHPD expected him to train for the SWAT physical fitness test while on vacation. That testimony was not disputed. In reaching his decision, the WCJ concluded that Officer Tomlin's belief that he was expected to train was not objectively reasonable. Accordingly, only the second element of the Ezzy test is at issue in this case.

In Wilson v. Workers' Comp. Appeals Bd. (1987) 196 Cal.App.3d 902, 239 Cal. Rptr. 719 (Wilson), the petitioner, Officer Wilson, was a police officer with the City of Modesto's special emergency reaction team (SERT). (Id. at p. 904, 239 Cal.Rptr. 719.) Membership in SERT was voluntary, and officers received no extra pay or benefits for participating in SERT. (Ibid.) SERT members were required four times a year to pass physical fitness tests of different kinds—one, for example, involved running two miles, while another involved doing a minimum number of push-ups, pullups, and sit-ups. SERT members engaged in monthly on-duty fitness training sessions, but SERT members were not compensated for off-duty fitness training. (Id. at p. 907, 239 Cal.Rptr. 719.) After his shift one day, Officer Wilson went running and, while running, injured his left ankle. (Id. at p. 904, 239 Cal.Rptr. 719.) He sought workers' compensation for the injury.

The WCJ concluded that, because Wilson had not been ordered to train and was not compensated for off-duty training, his injury was not compensable. The WCAB denied reconsideration. (Wilson, supra, 196 Cal.App.3d at pp. 904, 907, 239 Cal. Rptr. 719.) The Court of Appeal annulled the order denying compensation, holding that Officer Wilson had satisfied both prongs of the Ezzy test (Ezzy, supra, 146 Cal.App.3d at p. 252, 194 Cal.Rptr. 90) and that his injury was therefore compensable. (Wilson, supra, 196 Cal.App.3d at p. 909, 239 Cal.Rptr. 719.) Officer Wilson's testimony that he had been told by supervisors that off-duty conditioning would be necessary and that he knew that he had to train to maintain SERT's physical fitness standards satisfied the first, subjective-belief prong of the Ezzy test. (Id. at p. 906, 239 Cal.Rptr. 719.) With respect to the second prong, the court held that the facts that Officer Wilson was not compensated for off-duty training and that the City of Modesto did not provide equipment, facilities, or supervision for his off-duty training were not determinative. (Id. at p. 907, 239 Cal.Rptr. 719.) SERT...