AOE/COE Updates: Tomlin v. WCAB (2008) 162 CA4th 1423 and Verga v. WCAB (2008) 159 CA4th 174

By
Megan K. Rogers

Tomlin v. WCAB (2008) 162 CA4th 1423

Potentially imposes virtually limitless liability on an employer who requires regular fitness tests as part of a job position.  If regular exercise is a reasonable expectation of a job, then potential 24/7 coverage is possible.

The facts: A SWAT team officer was injured while exercising on vacation. Applicant felt he was required to exercise while on vacation in order to prepare for his fitness testing.  These annual tests for SWAT duty showed Applicant’s belief in the need to engage in regular exercise. Since the job required physical testing, exercise is a reasonable expectation of the job and thus location of the injury is irrelevant.

Verga v. WCAB (2008) 159 CA4th 174

Workers' compensation benefits are not available where an employee engages in harassing and demeaning behavior in the workplace, causing others to respond in a way the employee subjectively finds offensive and psychologically injurious “Actual events of employment” requires the employee to establish the objective evidence of harassment, persecution or other basis for a psychiatric injury.

The facts: Applicant filed a claim for stress after she felt her coworkers were verbally harassing her. However the coworkers testified that the Applicant was generating the workplace difficulties. Applicant’s QME found her psychiatric disability was due to conflicts in the workplace. Defensive QME found Applicant’s problems were personal in nature.

The WCJ found the Applicant lacked credibility and that her perception was false. Applicant filed a writ.

The Court of Appeal agreed and found no objective evidence that the supervisors or coworkers harassed the Applicant. The Applicant’s med-legal report focused on the Applicant’s version of the abuse of which the WCAB found did not occur. Therefore the Court of Appeal found the QME report cannot stand as substantial evidence.