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Kidwell v. Workers' Comp. Appeals Bd.

Court of Appeal of California, First Appellate District, Division Five

April 3, 1995, Decided

No. A067258.

Opinion

 [*1131]  [**540]   KING, J. 

In this case we are asked to determine whether an employee's injury, which occurred while she was practicing at home to  [**541]  pass one of the protocols in an annual physical fitness test given by her employer, is compensable under this state's workers' compensation laws. We conclude the employee's subjective belief, that as a condition of her employment, she was requried to practice for the test, is objectively reasonable. Thus, we annul the decision of the Workers' Compensation Appeals Board (Board).

 [*1132]  FACTS AND PROCEDURAL HISTORY

On March 28, 1993, petitioner employee Linda Burnett Kidwell (hereafter applicant), employed for over 10 years as a state traffic officer by respondent State of California, California Highway Patrol (CHP), suffered an ulnar collateral ligament rupture of her right thumb at home, off duty, while practicing the standing long jump, a required [***2]  test protocol of the CHP's annually administered, mandatory physical performance program (PPP) fitness test. As a result of said injury, applicant required surgery and used 58 hours of sick leave. She filed a claim for workers' compensation benefits which was denied by the CHP on the grounds that applicant's injury did not arise out of and in the course of her employment. The matter proceeded to two days of hearing before the workers' compensation judge (WCJ) in Santa Rosa.

The pertinent facts are not in dispute. According to CHP policy, "[t]he objectives of the [PPP] are to measure the ability of uniformed employees to perform specified physically demanding activities which are required of State Traffic Officers; to promote their ability to perform such activities; to encourage them to maintain themselves in good physical condition; and to minimize on-the-job injuries and illnesses related to poor physical condition." The annual PPP fitness test was developed by a physiologist from the University of California at Davis. Applicant, hired by the CHP prior to January 1, 1984, was a "Tier 1" employee. As such, applicant was required to annually take the PPP fitness test.

 [***3]  The standing long jump was one of the PPP fitness test protocols. The purpose of the standing long jump is to test the muscular leg power (explosive) of each employee. The test is related to the "work task" of running the 100-yard dash in 20 seconds or less upon exiting from a car, and is scored as a "pass" with a minimum clearance of 68 inches. 1 [***4]  In 1990, 1991 and 1992,  [*1133]  applicant failed the standing long jump portion of the PPP fitness test. 2 In June 1993, after returning to full duty following the right-hand injury, applicant again passed the annual PPP fitness test, except for the standing long jump, which she failed by only one inch. 3 

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33 Cal. App. 4th 1130 *; 39 Cal. Rptr. 2d 540 **; 1995 Cal. App. LEXIS 316 ***; 95 Cal. Daily Op. Service 2455; 95 Daily Journal DAR 4239; 60 Cal. Comp. Cases 296

LINDA BURNETT KIDWELL, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and CALIFORNIA HIGHWAY PATROL, Respondents.

Prior History:  [***1]  WCAB Case No. SRO 76341.

CORE TERMS

long jump, practicing, off-duty, annual, workers' compensation, injuries, objectively reasonable, reasonable expectancy, athletic activity, recreational, indirect, jumping, basketball game, off duty, preapproved, employees, tests

Workers' Compensation & SSDI, Compensability, Course of Employment, General Overview