Brent Adams & Associates Legal Blog
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According to Tomlin v. Workers' Compensation Appeals Board, Beverly Hills, California police officer Dave Tomlin is a member of the SWAT (Special Weapons and Tactics) team. He is also an instructor in defense tactics for SWAT members and other officers of the BHPD. In order to continue to be a member of the SWAT unit, an officer is required to pass a physical fitness test prior to joining and then pass an annual physical fitness test that involves a half-mile run, a wall-climb, and dragging 150 pounds.
According to court documents, Tomlin is paid by the BHPD to train four days each month and has sent him to train at Camp Pendleton and out of state locations. He also normally runs while vacationing to maintain fitness.
In 2005, Tomlin began a fitness training course in order to prepare for the test and expected to continue his training while on a two-week vacation from December 26 until January 11, 2006. During one of the runs on his vacation, he slipped on a sidewalk as he was rounding a corner. As he fell, his left foot struck the curb, resulting in a broken ankle. He had to undergo surgery and was unable to work until March 16, 2006, when he returned with modified duties. Later, he resumed full duties. According to court documents, he was unable to take the fitness test in January of 2006, but took and passed a subsequent test.
Tomlin applied to receive benefits from workers’ comp because of his injury, but was denied by the city of Beverly Hills, which claimed that the injury took place while he was voluntarily participating in an off-duty recreational or athletic activity. His benefits were denied by a Workers’ Compensation Administrative Law Judge (WCJ) and his petition for reconsideration was denied by the Workers’ Compensation Appeals Board (WCAB).
The Court of Appeal overruled the earlier decisions, saying that physical fitness training, even on vacation, is “a reasonable expectancy” of Tomlin’s employment because he his required to be fit and pass annual fitness tests. The court said that if he had ceased training, it would have been inconsistent with the requirement that he remain fit enough to pass the test.