As the fully vaccinated emerge and more and more offices welcome employees back in-person, employers may be looking for creative ways to reconnect their teams in the office and on the softball field.
Before organizing that company picnic or sponsoring, they may want to check their liability for employees.
Hosts Judson and Alan Pierce address the “deceptively simple and litigiously prolific” workers comp doctrine of recreational injuries, varying standards of proof, and possible defenses.
Jud and Alan parse the various work-related factors, including how voluntary the activity is and the benefit the employer gets from hosting or sponsoring the off-premises activity.
Special thanks to our sponsor, PInow.
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Intro: This is Workers Comp Matters hosted by Attorney Alan S. Pierce. The only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized Trial attorney, expert and author, Alan S. Pierce is a leader committed to making a difference with Workers Comp Matters.
Judson Pierce: Hello and welcome to another edition of Workers Comp Matters on the Legal Talk Network. My name is Judson Pierce and I’m pleased to be sitting down with my good friend, good father, Alan Pierce. Alan, the usual host of this program, say hello.
Alan S. Pierce: Hey, hello everybody. Hi Jud. You can call me dad.
Judson Pierce: Okay, thanks dad. We are here to discuss the doctrine of recreational injuries, proof and defenses. Alan, you’ve been involved in these cases before in your career, I think your last argument to the Supreme Judicial Court here in Massachusetts had to do with one of these types of injuries.
Alan S. Pierce: Indeed, it did.
Judson Pierce: Yeah. Can you tell us a little bit about your experience with this doctrine?
Alan S. Pierce: Yeah, this is one of the more interesting areas of the sort of specialty of law known as workers’ compensation and it is to what extent does workers’ compensation provide coverage to employees who suffer injuries not in the usual expected course of work activities that we generally associate with workers’ compensation, but are engaged in activities that are considered either recreational or social in nature and these would include such activities, such as company, holiday parties, dinners, company related athletic events such as sponsorship of softball teams or perhaps intercompany basketball competitions.
A whole wide variety of social or recreational activities in which there is a risk and an occurrence of an injury in that setting and there has been a body of case law developed around the country where different jurisdictions treat these injuries differently and a lot has to do with in every case the particular facts of that particular case and how it fits into that particular state or jurisdictions definition of what does constitute an injury that arises out of and in the course of employment.
Judson Pierce: Yeah, the statutory phrase, I found this quote interesting, “The statutory phrase arising out of and in the course of employment which appears in most workman’s compensation laws is deceptively simple and litigiously prolific”. That was written by Mr. Justice Murphy in Cardillo v. Liberty Mutual Insurance back in 1947. Why do you think that this is such a deceptively simple and litigiously prolific series of words?
Alan S. Pierce: Well, it has to do with the fact that people can injure themselves doing a wide variety of tasks that at first blush may not appear to be work related, but do provide a tangible or intangible benefit to the employer and when you get away from you know sort of you know working on the machine or working in an office setting and you transfer that to a restaurant, a dance floor, a softball field to which an employer may either compel attendance or participation or more often might expect attendance and participation.
The social question is where does the risk of injury lie when somebody is injured under circumstances that they are participating in an activity that is beneficial to the employer, beneficial to their relationship with the employer as an employee and who should bear the risk of economic loss, wage loss or medical expense when an injury occurs in that setting. Over the last perhaps 30 years, many states not every state but many states have actually amended their workers’ compensation law to address this situation we can discuss that in a minute, but before or in the absence of any express language in a particular statute virtually every jurisdiction does have a body of case law in which there are certain parameters that have been set out by appellate courts, a particular state’s supreme court or highest appellate court that dictate the factors that must be considered by a fact-finding tribunal like an industrial Board or judge, a workers’ comp commissioner to determine whether one set of facts requires a payment of workers’ compensation or doesn’t.
And you can compare and contrast results in the various states and perhaps find inconsistent results in the case I would perhaps like to elaborate on to identify these particular issues is a case which I happened to have had way back in the early 1980s, but an injury occurred actually in the late 1970s and this case did involve a company softball team and it did occur before Massachusetts enacted a specific statutory provision that has actually arose out of this case. So Jud with your indulgence, maybe if I can give you a sort of summary of the facts of that case, it’ll sort of put this in perspective. I represented an individual by the name of John Kemp. So the case is identified as Kemp’s case, that’s how Massachusetts identifies their particular workers’ compensation cases that go into the Supreme Judicial Court.
Judson Pierce: For the folks listening who want to look it up, the 386 mass 730 and it was decided in 1982 by our highest court and you say that he actually got hurt 11 years previous to that.
Alan S. Pierce: Yeah, this case for some reason had a very tortured history to get through to the Supreme Judicial Court back when he was injured. I was not even a lawyer. His injury indeed was I believe in 1971.
Judson Pierce: I was not even alive.
Alan S. Pierce: Yeah, that’s true too. Basically, he worked for a company called Westinghouse Electric Supply — they were a division of the big Westinghouse company and it was a warehouse and they had a company team and they played in an interleague team or league of similar companies, competitors or other types of companies and they would play their softball games on a public park off hours. They were not paid; they were volunteers but supervisory personnel played along with the regular employees and there was a certain benefit that we argued to the employer of morale and increased productivity.
The employer did subsidize this activity, they provided the t-shirts and the hats that had Westinghouse Electric Supply on the t-shirts and I think the circle W logo on the hats. There was a great deal of pride of winning the particular league series at the end of the summer season. The company paid for the shirts and hats, they promoted the activities, there was an employee break room where the company posted the schedules like I say management participated, and John Kemp injured his shoulder, I think he broke his collarbone while sliding into a base and was only out of work perhaps four or five or six months and along the way he filed a claim for workers’ comp benefits — make a long story short or shorter, he was awarded benefits by the Department of Industrial Accidents in Massachusetts on the grounds as I’ve stated that the employer was gaining a benefit of increased morale and a (00:08:13) decor and a harmonious relationship between employees and their bosses that they were also getting the benefit of advertising and goodwill.
Judson Pierce: Let me interject, there seems to be a strong enough nexus between the employer, employee activity here. Why wasn’t there any sort of statistical analysis, a breakdown of perhaps further productivity that the company may have generated, you know, happy workers are faster workers, happy workers or better workers. Was there any sort of like scientific —
Alan S. Pierce: No. Unfortunately, we didn’t go that far and I’m not even sure what type of data would have been available, 35 or so 40 years ago to do that but the fact finder at the industrial Board did award compensation, and Westinghouse which was self-insured, they upheld it to the reviewing Board, they upheld the award and again, the basis for the award were the factors that I had cited.
The good will, the morality advertising et cetera, and there was support for that. There were other cases around the country where similar either basketball teams or softball teams where compensation was awarded before basically no more involvement than what I said Westinghouse had or the minor financial purchase of equipment and jerseys and I think Westinghouse paid the fee for the use of the field. I mean there were and presumably and these were effect that came out in testimony, these were business expenses that were deducted so the employer, self-insurer by subsidizing this activity —
Judson Pierce: Got a benefit from deducting —
Alan S. Pierce: Yeah, I mean it was considered a business expense and the judge in the case did cite these as the reasons, but we had no statutory language and the case went to the reviewing Board, they upheld it back then to get the Supreme Judicial Court, they had to go through the superior court and the appeals court, so the superior court affirmed the award of benefits.
The appeals court affirmed the award of benefits and the Supreme Judicial Court granted review and that’s why it took a number of years to get through the hearing, the appeals, there were three levels of appeals before the supreme court and when they got the case, they reversed it.
They took away the award and basically said it wasn’t enough that the employer derived this intangible benefit of morale and goodwill and that their subsidization was just not quite enough, and they basically cited the rule in Moore’s case and other cases in which the common law theory was, you know, whether the employer ordered the employee to participate in the program whether the employees were paid, whether it occurred on company premises, whether it occurred on company time and whether the employer directed the activity and they found that if you look at those criteria, that the amount of involvement that the Westinghouse Electric Supply Company just wasn’t enough to bring this within the orbit of being in within the scope of employment that it was a voluntary recreational activity and just didn’t provide enough benefit to the employer to require the employer to pay workers’ comp.
And it was shortly after that the legislature in 1985, a couple of years after the decision, the legislature amended our workers’ comp law in Massachusetts to say that an injury shall not — a personal injury for workers’ comp purposes and I’m going to quote from the statute, it’s just one simple sentence, “shall not include any injury resulting from an employee’s purely voluntary participation in any recreational activity including but not limited to athletic events, parties and picnics even though the employer pays some or all of the cost therefore.” And that then became the state of the law following Kemp and following the legislative change.
Judson Pierce: In whose eyes voluntary, that’s the one thing that the legislative wording does not state. Whose eyes are we looking through?
Alan S. Pierce: That is a good question. There is some case law and language that suggests that whether something is or is not voluntary, first of all, most of the time is subjective. Certain times you can produce evidence for example if an interoffice memo or an interoffice email comes out saying the boss is having a — there’s going to be a retirement party for the boss, you are expected to attend or you are encouraged to attend or if there is subtle or not so much subtle pressure to attend, and then at the attendance of whatever that event is an injury occurs one can argue that the attendance was not voluntary.
So voluntary is and many times subjective and it can be a little more objective if you have some type of tangible evidence of some type of employer if not compulsion sort of almost compulsion sort of a, you know, you better attend or else. What’s interesting is our legislature chose to add the adverb purely to voluntary. If it just said voluntary participation, one could argue and one we do argue that the particular reason why our client was participating wasn’t voluntary but we have the added advantage of the word purely voluntary, which I think makes it a little bit easier for an employee who felt compelled to participate but you couldn’t prove it through any type of direct memos or evidence, but you know, purely voluntary I think to me and would be from the standpoint of the participant not from the standpoint of the provider of the employer.
Judson Pierce: Well let’s tease our audience a little bit and come back after a short break with some recent cases over the last 20 or 30 years, some of which you’ve handled Alan on this issue of purely voluntary.
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Judson Pierce: And we’re back. Alan before the break, you were talking about the added advantage that injured workers in Massachusetts can pursue a possible workers’ comp claim with the argument that their action that caused their injury was not a voluntary one, was not a purely voluntary one. Can you describe how that gives of added little bit owned for the injured worker?
Alan S. Pierce: Well, first of all, you know, it is through the eyes of the injured worker I would suggest as to whether they felt that they were truly voluntarily participating in the activity but of course that you know that then becomes a credibility and a fact-dependent issue but I’m thinking back and a lot of our listeners — because a lot of this comes up in popular culture. I remember a show in the late 80s, L.A. Law and one of the episodes and this actually — I actually found a case not unlike this particular episode.
One of the subplots in L.A. Law is that this particular law firm had a very competitive basketball league against other law firms. And in fact, we have it here in Massachusetts, plain of lawyers play against defense lawyers and there’s a lot of emotion that goes into it but this particular episode of L.A. Law, they were recruiting summer legal interns and this one particular summer, they hired an intern who probably did not have a very distinguished resume to be hired by this prestigious law firm, but he was like six foot eight and he was a like a division one college basketball player and of course he blew out his knee playing under the banner of the particular law firm and although it didn’t come up in the context of a workers’ comp claim, it just sort of was — in fact, I don’t even think he got injured in that particular episode, but it became apparent that he was probably hired because he was six foot eight and was a good basketball player.
So he filled the slot and if he were injured and they did have a purely voluntary work activity defense, I think one could argue that his hiring was more for his basketball skills than for his legal skills, so that’s one area. The other thing we don’t want to overlook is moving away from voluntary or purely voluntary what is or is not a recreational activity.
The statute says “including but not limited to picnics parties and sporting events,” but there are other types of activities which one might see a recreational defense proffered by the insurance company and you might want to look as to whether or not the activity where the person was injured was recreational and that’s going to lead us into the discussion of a couple of skiing cases. But also, a discussion we had a case in the office, for example, we had a gentleman who worked for a company, he had a fairly sedentary job in an office 9 to 5. He was diabetic and as a result, his sedentary work activities eight hours a day plus his demand for maintaining appropriate blood sugar levels required him to eat and drink certain things at certain times.
During the day when his blood sugar would be off, his doctor said, “you need some moderate exercise and you need to, you know, take in some sugar fluids apple juice whatever,” and his habit was whenever he felt that way on his lunch hour, he would leave the factory and he would go into the property of the employer which included a wooded area that they owned, so he was on company premises and he was on company time and he would lightly jog or power walk for about 30 minutes and while doing that, he twisted his ankle and see the (00:18:32) his ankle and severe tear of some tendons, and the insured defended the claim that he was engaged in a purely voluntary recreational activity.
We responded saying, “Yes, the activity he engaged in was voluntary in his part and was purely voluntary”, but we questioned whether it was a recreational activity. He wasn’t doing it — the definition of recreation is to do something for one’s enjoyment for relief from the travails of work, but in this case, if he were deemed to be credible, he wasn’t doing it for the purposes of recreation, he was doing it for the purposes of health and well-being and to be able to helpfully and safely perform his job without putting himself at risk, and we resolved the case, it didn’t go to a decision, it was resolved and I think I would bet that if we did try the case and our client was deemed believable by our judge, you know, I think the judge would have found that yes this was a purely voluntary activity in his part but it wasn’t recreational and it was done on premises during work day, during work hours and the employer is benefiting by having a healthy employee.
So that’s a case where if you get a purely voluntary recreational defense, first look at what the activity was and make sure it was recreational before you even get into the issue of how voluntary it was and whether it was purely voluntary.
Judson Pierce: In your years of practice, do you see these types of cases come around quite a bit?
Alan S. Pierce: They come around, I wouldn’t say quite a bit but we have handled in the 35 or 40 years we’ve been representing injured workers probably a dozen cases involving people who are injured in social events, sometimes you have people on business trips and they get injured doing something that is of a social nature, a lot of business trips involve both alcohol and work activities and meetings.
The most recent case and you referred to it, we had an employee who was skiing on a Saturday, off premises and off hours and she was a school teacher and this is Karen Sikorski and that’s a case that also what made it to the Massachusetts Supreme Judicial Court. This case is an example where I think the city which was self-insured probably misused and misapplied the recreational activity defense. I think they could have made a better argument that this was a more outside the scope of employment, but very quickly the facts on this case is my client was a school teacher and there was a ski club recognized student activity in the budget of the city they had money allocated to pay the faculty advisor for the ski club who is not my client, and they would arrange for day trips to different ski areas in adjoining states.
So I believe on this particular trip, it was a bus trip to Vermont, spend the day skiing and then come home and of course my client volunteered to be a chaperone and her volunteering to be a chaperone was purely voluntary, she didn’t have to do it, she wasn’t being paid to do it and she would get transportation obviously on the bus, she would not have to pay for the lift tickets —
Judson Pierce: But the employer did say that it needs chaperones, right?
Alan S. Pierce: That’s the distinction. In order to have the trip, there had to be one chaperone for every five students that were skiing. So she was injured, she injured her knees skiing down the hill, she hit a mogul or something and went down and at the time, she had five students that were skiing with her, she actually was provided a walkie-talkie so that if any of the students were to get injured or if any of the students were to deviate from school rules, she was to enforce those rules and if she needed help, she would contact the other chaperones on the walkie-talkie.
So my argument was that this was not a recreational activity even though it was purely voluntary that it was — she was performing the duties of a teacher as a chaperone and that is exactly the way the Supreme Judicial Court saw it. They said that this activity was work. One couldn’t ski for recreation but one can also ski for work. I mean ski instructors are skiing but they’re also working. Ski patrols are skiing but they’re also working, so a chaperone who just happens to be skiing, it doesn’t make that activity purely recreational.
Judson Pierce: Well you can take your work with you. I mean to be compensable; it doesn’t actually always have to be on the employer’s premises.
Alan S. Pierce: That’s correct. It does help if it’s on the employer’s premises, but contrast and the City of Peabody and the Peabody Mass which was the city that employed my client, they were relying on a case that came down two years earlier called Hammond’s case, also a skiing case. And in that case, the case was denied workers’ comp and, in that case was a little bit different, and that’s why these facts matter.
Ms. Hammond worked for an event company and they would provide events for their client companies and one of their client companies had a ski trip not unlike the ski club and her job was to make sure the client was happy, and so she would arrange for the room, she’d arrange for the skis, she would do all the work so that all the clients’ employees had to do was show up and enjoy a day of skiing, and she was injured skiing, and she was encouraged to ski. They said that you should ski with the clients’ employees and just —
Judson Pierce: See if they need anything?
Alan S. Pierce: –make sure everything runs well. However, this is the factual difference, at the end of the run when everybody was finished, she decided on her own, she was going to take one last rundown to go, and that’s when she was injured.
Judson Pierce: Yeah.
Alan S. Pierce: And at that point, they held she had stepped out of the skiing role as a work duty and gone into the skiing role as a recreational activity on her part.
Judson Pierce: Interesting.
Alan S. Pierce: And in this case didn’t go to the Supreme Judicial Court but it went as far as the appeals court which is the next level under the Supreme Judicial Court and they upheld the denial of benefits on the grounds that her skiing activity at the exact moment she was injured was not for the benefit of the employer or for the benefit of the customers of the employer that she arranged the ski trip, but was for her own personal enjoyment and it was a recreational activity, it was purely voluntary.
So a very subtle fact distinction between those two cases is the reason why one person was successful and the other person wasn’t.
Judson Pierce: Wow, amazing the discrepancies and not only just in Massachusetts cases but around the country. Is there any cause for concern that maybe we need something to be looked at on a federal basis to sort of equalize the states and the different aspects of how you can be awarded compensation in one and not another?
Alan S. Pierce: Yeah, I don’t know that it’s really a federal issue. The one thing the federal government has usually had done is a workers’ comp is really a state by state law and those statutes can either be amended or by court decision.
Judson Pierce: But there’s a lot of between state interstate commerce affected here, there’s a lot of working traveling, you know.
Alan S. Pierce: Yeah, but most states now either have statutory language not unlike Massachusetts. In fact, some of the language they borrow it from other states you could look at New York and Illinois and New Jersey, and many others, they have similar purely voluntary recreational activities.
The states that do not for the most part all have case law that says that you look at the setting of the injury whether it occurred on employer’s premises, off premises, being paid, not being paid, employer benefit, employer direction and control and all of these kind of building blocks of facts that if you’re representing a worker in a state that doesn’t have statutory language talking about purely voluntary recreational activities, you still have to satisfy the facts that there is a distinct benefit to the employer that the employer is getting something either tangible or intangible in return for the employees participation in the activity.
So you would, you know, if you have either bringing one of these cases or you’re defending one of these cases, you look at the factors that have been enumerated pretty much around the country or in Arthur Larson’s treatise where he outlines all of these indicia of work relatedness and see if you can fill as many of those, check off as many of those boxes as you can if you are representing an injured claimant. And if you’re defending these cases, check off as many of those boxes that would point to a voluntary participation with minimal employer benefit and the number of cases is equal to the number of different factual situations that can arise and you can have various you know cases that are strong on some of these points and cases that are weak on some of these points, and it’s a matter of marshaling your facts knowing, you know, the law of the jurisdiction presenting your case to the fact finder and the light most favorable to your client.
And you will find inconsistent results around the country, you’ll find some states might be more favorable and liberal to an injured worker in these cases and some may be more cognizant of the cost of the employer to incur the risk of injuries that occur in purely social settings, especially if alcohol’s involved. You know if the employee, if it’s an open bar and the employer is paying for the alcohol in a purely voluntary party, holiday party, and the client either is injured him or herself by over indulging or by a co-worker who may have had too much to drink, the fact that the employer provided the alcohol may take it out of the recreational activity aspect of it.
So these cases are so fact dependent and as long as those of you out there practicing these cases, know what the particular factors are in your jurisdiction, as I said check off the boxes that most neatly apply to your set of circumstances.
Judson Pierce: Great. And on that note why don’t we end for today. I’d like to thank Alan for joining us on this really interesting issue and one that is loaded with challenges too. I know you cited in your article a great deal of research that you had done, where can someone maybe look up this article? Is this through Thomson West Publishing?
Alan S. Pierce: Yeah, this article is going to be published in a law journal that’s put out by the Workers Injury Law and Advocacy Group WILG. It’s going to be coming out in the next edition. If somebody wants a copy of it, please feel free to email either Jud or me, and I’ll be happy to send it out to you.
My email address is [email protected] and Judson’s [email protected], and we’ll shoot you a copy, it’s a six or eight page sort of summary of the cases around the country that talk about what is or what is not a recreational activity and what may or may not be purely voluntary.
Judson Pierce: Well thank you again, and thank you everyone for joining us for another edition of Workers Comp Matters. My name is Judson Pierce along with Alan Pierce. We’d like to wish you a good day and make it a day that matters. Take care.
Outro: Thanks for listening to Workers Comp Matters today on the Legal Talk Network hosted by Attorney Alan S. Pierce where we try to make a difference in workers’ comp legal cases for people injured at work. Be sure to listen to other Workers’ Comp Matter shows on the Legal Talk Network. Your only choice for legal talk.
Podcast transcription by Tech-Synergy.com