Workers' Comp

Risk & Insurance,  Sept 16, 2001  by DONALD T. DeCARLO

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Recreational Events Injuries

Injuries arising from an employees' attendance at a company-sponsored recreational, social or athletic activity may be so closely connected with the employment as to create a compensable condition under most workers' compensation laws. Recreational, social or athletic activities are deemed to be in the course of employment when any of the following criteria are met:

* They occur on the employers' premises during lunch or recreation period as a regular incident of the employment; or

* The employer, either expressly or implicitly, requires participation or makes the activity part of the services of an employee; or

* The employer derives substantial direct benefit from the activity over and above that of improving employee morale.

The degree of employer sponsorship may extend from the furnishing of team shirts with the company logo to affording practice time during working hours. Where the employer derives some benefit in the form of publicity or advertising, injuries arising from such activities are compensable.

While case law has tended to find for the compensability of injuries stemming from recreational, social and athletic events where the employer derives some benefit, a number of states have enacted specific statutory provisions addressing the subject. States enacting such provisions have generally inclined toward not holding such claims to be compensable.

A number of states follow the approach set by California, where injuries arising out of voluntary participation in any off-duty recreational, social or athletic activity, not constituting part of the employee's work-related duties, are not compensable unless the activities are a "reasonable expectancy of, or are expressly or impliedly required by the employment." Colorado takes a similar approach with the further requirement that the activity produce a "substantial direct benefit to the employer beyond improvement in employee health and morale." Other states with similar statutory provisions include Kansas, Michigan, New York, Oregon, Texas, and Wyoming.

A few other states have taken a more restrictive approach to the question of the compensability of injuries arising from recreational, social or athletic activities, by denoting that an injury does not arise out of the employment where it was caused by the voluntary participation in any activity that is mainly for social or recreational purposes, including athletic events, parties and picnics, "even if the employer pays some or all of the costs." States that appear to follow this approach include Connecticut, Illinois, Maine, Massachusetts, Montana, New Jersey, North Dakota, Rhode Island, and Virginia.

Employee Horseplay

It is generally accepted that employees will participate in occasional practical jokes and frivolity or pranks on the job site. What may start as an innocent act not intended to cause anyone harm may end up in a tragic injury or the death of a fellow employee or even of the prankster. To be compensable, an injury received from an act of horseplay must be received as a natural incident of the work.

Early case law evaluating whether an injury resulting from horseplay was compensable was often decided against the employee. This was so even in some cases where the injured worker was an innocent victim. More recent case law has found, however, that the victim of horseplay is entitled to benefits, but still not in all cases.

If the instrument used by a practical joker to cause the injury or death is provided by the employer, there is a greater probability that the injury arose out of and in the course of employment. When an employee causes his or her own injury or death, the courts are less inclined to award benefits than they would to an innocent victim.

In one New York Workers' Compensation Board case, the Board was sustained by the Appellate Division when it found that benefits were to be awarded to a claimant who attempted to do a handstand on the arms of a swivel chair. It was determined that "young men, whose job calls for expenditure of physical energy, cannot be expected, during slack periods, to sit in idleness and gossip; that the employer must expect that they will engage in some form of activity and that the risk was a risk of employment."

Donald T. DeCarlo is a partner in the law firm of Lord, Bissell & Brook in New York.

COPYRIGHT 2001 Axon Group
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