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Employee hurt at lunch during charity race; does she get comp?

Racers

An employee participates in an indoor relay race as part of a charity event during her unpaid lunch period. She slips on a streamer and injures her knee. Does she get workers’ comp benefits?

American Greetings Corp. sponsored a United Way fundraising event held in the company cafeteria during workers’ unpaid lunch hour. The event had been held annually for 15 years. Employee Sheila Bunch participated in a relay race.

Lanes for the race were marked with streamers on the floor. Bunch injured her knee when she slipped on a streamer.

(An interesting side note: In previous years, lanes for the race were marked with tape. Court records show they changed to the streamers because either management or the floor cleaning crew complained.)

Bunch applied for workers’ comp.

American Greetings argued that participation in the charity event during an unpaid lunch period was outside the course and scope of her employment. An administrative law judge agreed and dismissed Bunch’s claim.

On appeal, the Workers’ Compensation Board reversed the decision and awarded Bunch comp benefits. The company appealed to a state court.

Under Kentucky law, this type of charity event qualifies as work-related if it meets any one of four conditions:

  1. It occurs on the premises, during a lunch or recreational period, as a regular incident of employment
  2. The employer brings the activity within the orbit of employment by expressly or impliedly requiring participation or by making the activity part of the service of the employee
  3. The employer derives substantial direct benefit from the activity beyond the intangible benefit of an improvement in employee health and morale that’s common to all kinds of recreation and social life, or
  4. The employer exerts sufficient control over the activity to bring it within the orbit of employment.

The court found that the injury was work-related because it occurred in the middle of Bunch’s work day during an unpaid lunch break when employees are more likely to remain on the employer’s premises and continue to be within the scope of their employment. There’s no argument that the event took place on company premises.

American Greetings argued that the charity event wasn’t a regular incident of employment because it only happened annually. It said for the event to be “regular,” it would have to take place more than once a year.

The court disagreed. It said once a year was enough to qualify as a regular event.

Decision: The court awarded Bunch workers’ comp benefits.

(American Greetings Corp. v. Bunch, Court of Appeals of KY, No. 2009-CA-001750-WC, 2/26/10.)

What do you think about the court’s decision? As a safety pro, would you want to be consulted about safety for a charity event such as an indoor relay race? Would this type of decision lead you to recommend that such events not be held at your facility? Let us know what you think in the Comments Box below.

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Comments

  1. I agree with the court… kind of. Would this company have avoided this situation if they had all participants sign a waiver stating the activity was 100% voluntary and they would not hold the company liable?

    Sadly, cases like these are the reasons we no longer have employee outings, cookouts, etc.

  2. John Singer says:

    I agree with the final decision. Leaving out all the issues of work-related, etc. I believe American Greetings was negligent when it sponsored an event, on premises, with a potential safety problem (streamers).

  3. The ruling of the court is not surprising, as in the states I cover Work Comp issues virtually every Court has the same opinion – on the premises, lunch time, etc. No one should have been surprised when she filed for WC, or when she got it.

    Unfortunately many companies over the years have reduced employee activities designed to improve morale and company buy in to avoid this type of liability. After 30 years of watching this, I see this as bad logic, for as safety professionals, we should know that motivated, engaged employees will have better safety records, be better trainees and communicate safety issues with you, than those stone cold companies that avoid all risk.

    Having said that, the company event planners need to use some logic in avoiding undo safety hazards or ensure proper safeguards are in place. Our activity committee does discuss this with the various events we have held over the years.

  4. I agree with Jason. If the company brings this event into its facility and I’m sure it benefited from doing so, the employee’s should be covered and protected by their employers as well. It’s probably sad to say that the employee’s of this company probably won’t see another company function because of this incident.

  5. In my opinion the event met three of the four conditions. I agree with the court.

  6. Safety Guy says:

    I agree with Jason in part. There are certain conditions which must be met and they were stated above. Sometimes the law incorporates these provisions as a catch all. Then the question would become, “Does a waiver release override the parameters of the law or does the law over rule?

    Under Kentucky law, this type of charity event qualifies as work-related if it meets any one of four conditions:
    -It occurs on the premises, during a lunch or recreational period, as a regular incident of employment
    -The employer brings the activity within the orbit of employment by expressly or impliedly requiring participation or by making the activity part of the service of the employee
    -The employer derives substantial direct benefit from the activity beyond the intangible benefit of an improvement in employee health and morale that’s common to all kinds of recreation and social life, or
    -The employer exerts sufficient control over the activity to bring it within the orbit of employment.

  7. The court ruled correctly. American Greatings created the monster by hosting the race on it’s property and now has to live with the claim.

  8. Same type of injury happened to us a few years ago. We allowed our employees to participate in a building summer outing where we paid for our employees for the day and the meals. We purchased and gave them tee shirts and hats to participate in many activiites ( tug of war, baseball hitting, volleyball, etc. ). It was to be a fun day for employees of member companies to enjoy the sea food and libation.

    One of our employees twisted his ankle at a tug of war event He did not return to work the next day, or week. We paid him for loss time for two weeks and asked him to go on disability insurance. He hired an attorney and we were sued. Worker’s Comp court awarded him compensation. He collected for two years and was awarded a final settlement in the high thousands.

    These Company sponsored events for their employees should and must have insurances in place to cover such injuries apart from Worker’s Comp.

    No matter what, unless the event is a non company sponsored event, and the employer does not pay for the time spent there nor donates any money to fund the event, the employer will always be found liable for allowing his employees to participate during normal working hours.

  9. Here’s a greeting for the Worker’s Comp Board: “Good Job!”

    Here’s a greeting for American Greetings: “Boo Hiss!”

    The Safety Officer must have had the day off…

  10. Jason is correct – this is exactly why there are preciouse few company sponsored activiities which pose an element of risk anymore. Back in the late 1980’s I was personally injured in a softball game while playing for my company team in an industrial league (certainly don’t see those anymore!). Although the game was pure recreation and after working hours, the field was on company grounds and maintained by company personnel. It was automatically a comp case. The team and league eventually folded in the ’90’s, as well as all intramural sports that the company rec committee ran (volleyball, touch football, etc) and insurance costs were one of the primary drivers. They planted trees on the the old sports fields and built a nice winding walking path around the grounds.

  11. There is precedence for the injury being work related and therefore eligible for coverage, whether we agree with it or not, and the precedence is not listed in the law but in the interpretations of the federal recordability laws, which require documenting certian “work related” injuries. States, including Michigan (in the example below) are not able to interpret law less stringently than the federal.

    EXAMPLE:
    A student went to the parking lot on their lunch hour to get a book for personal use, and slipped and fell. Is it recordable on the MIOSHA 300 log? The student is supervised on a day to day basis at the hospital and was prescribed prescription medication by their personal doctor.

    Under the exceptions of the MIOSHA recordkeeping rule, you are not required to record injuries or illnesses if…

    “R 408.2211 (iv) The injury or illness is solely the result of an employee doing personal tasks, unrelated to his or her employment at the establishment outside of the employee’s assigned working hours.”

    Taken from Appendix B- Frequently Asked Questions (attached), p. 3, Q 1110-4.
    The “assigned working hours” per 408.22100 Rule1110(2)(b)(v) for purposes of this rule, means “those hour the employee is actually expected to work, including overtime.”

    “Personal tasks” per Rule 408.22110, Rule 1110 (2)(b)(v) for purposes of this rule, “ are tasks unrelated to the employee’s job.”

    You might conclude that, as the student was on his or her lunch hour, they were not on “assigned working hours,” and he or she was retrieving a book from the car, which was a “personal task,” therefore the injury would not be included on the MIOSHA 300 log. If, however, the activity was work related, even if done on lunch hour, it would need to be added to the 300 log.

    However, because MIOSHA cannot be less stringent than federal OSHA, and federal OSHA interprets lunch hours as part of the normal work schedule, it would be recordable, as described in this letter of clarification from February 16, 2010:

    In this scenario, the exception in Section 1904.5(b)(2)(v) would not apply because the injury occurred during the employee’s normal work schedule (lunch break). The exception in Section 1904.5(b)(2)(v) only applies if an injury or illness occurs when the employee is conducting personal tasks while present in the work environment at a time either (1) before the start of the normal work schedule, or (2) after the normal work schedule has ended. In other words, the exception does not apply to injuries and illnesses that occur during breaks (either formal or informal) in the employee’s normal work schedule. Therefore, the case you describe in your letter is work-related and must be recorded because it meets the general recording criteria in Section 1904.7 (the injury required sutures).

    http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27338

  12. I surprised the company even contested this. Do they just want the employee to go to her own doctor and then sue the company for the unsafe condition they obviously created and exposed her to? Seems cheaper to handle through Worker’s Comp unless they have had so many other work injuries that their running into problems with too high of an incident rate.

  13. Once the Company intervened and set the guidelines for the event (i.e. the streamers instead of the tape) they became an integral part of the condition that made it unsafe. For this reason alone, the company should be held accountable. Events like this occur all the time, but like Jason said, the consequences of an accident are the reason more of them are going by the wayside.

  14. I think companies are going to stop having fun fundraisers and activities. It’s a shame. The company in this story didn’t expose anyone to unknown dangers. Everyone participating knows that there are risks when you run a relay race. As long as the employees participate willingly and not under obligation, they should do it at their own risk. That’s called common sense, and that’s what our laws and courts lack.

  15. Joy Sargent-Smith says:

    I do not agree with the reversal by the court. While this was an event that the company held regularly and it was on company property, her participation was voluntary. Nobody was forcing her to participate. However, the company should also insisted on signed waivers.

  16. I totally agree with Daniel – good word

  17. Just looking at the 4 criteria that the court had to base it’s decision on, you could see what the answer had to be, at least in Kentucky. The devil is always in the details.

    I agree with other poster’s that the unintended consequence will be zero company sponsored functions in the future, after all no function = no risk. At least that will be the recommendation of the legal department to management. However, keeping the totality of the circumstances in perspective, this is a minor claim, and will probably not have much impact on the company’s work comp mod rate. Top management can certainly over-ride legal’s advice and allow the event to continue, sans streamers (after all, the event had a 14 year positive track record going in).

    Remember also: What you are reading about is the Work Comp attorneys fighting the company’s Insurer’s attorneys … and the injured employee’s attorneys. Day to day management at the company probably had very little to do with this case. Work Comp law is primarily administrative in nature, not a whole lot of wriggle room once you make the “work relatedness” and “scope of employment” cases …. it’s ‘here’s the rule, lets apply it’.

  18. Yes the got it right, she hurt herself at work, but why workers comp? Don’t they have some light duty to give her while she is at work. This seems to be the problem in factories where there is no light duty set up to help the employee recoup while still in the work place.

  19. They hosted the event on their own premises’…they pay! For them to buck this one shows their true colors.

  20. Worker’s comp court in many states (my experience is Okla., KY and Missouri) all have similar laws about work activities and this is common for well over the 30 years I have been involved.

    While you will occasionaly get bitten by an injury like this, keep in mind that the morale and emotional well being of your employees is very important to your efforts as a Safety Professional.

    As stated in various ways above OSHA and your Safety Programs are joined at the hip due to cost but are almost totally separate. (in some states you can be charged additional workers comp cost if proven to be a safety violation, or you can get some deductions if the employee violates specific safety rules or uses drugs/alcohol.)

    Developing a sound and well managed light duty program is important and can save you thousands of dollars in premiums or payments if self-insured. You can of course also change your OSHA statistics to a more favorable light – but all are still recorded. Keep in mind this overlaps with FMLA and ADA laws also. Even you don’t like the HR folks you need to work with them:)

    Also remember that if you have employees off premises for training, travel, etc., and they have a wreck or injured crossing the street to training, you will be liable under Workers’ Comp laws.

  21. Interesting case. We just had a fire chief, age 61, die of a heart attack while playing softball after work with other city employees. Now there is an attempt to make it a workers comp claim. The game was at a city park but not at the place where he and the others worked. It was after hours. I thought it was ridiculous for his widow to file for workers comp, but after reading this article and these comments, perhaps she will prevail.

  22. As employers we spread the word that “there are no accidents”, just employees taking their eye off the ball or being distracted or just plain careless. Employees need to take personal responsibilty for their safety and pay attention, use common sense and good judgment.
    Now where does the company’s responsibilty come in to provide a safe environment. Putting streamers down on a cafeteria floor is a no brainer, “slip hazard”. We are constantly asking employees to pick up paper and other flotsam to prevent slipping. why would we then turn around and say “hey its okay to run along, over paper streamers we put down because its for charity”.
    I am truly astounded that someone didnt take one look and say “hey lets use eraseable marker or an alternative non slip marking method”.
    I would hope this would be a learning lesson to put into action for ourselves the mottos we so often preach to our employees.
    We would not let this type of claim stop us from doing future employee functions, merely make us responsible to employ the same thoughtfulness that we ask everyday of our employees.

  23. Richard Castillo says:

    This is good to know, now I will look into the activities, more in details, before having them. But I do disagree with the Courts decision, because come on would you realy had race with sreamers on the floor? It’s like if I told you to jump off the train because everyone is doing it. She might have been looking for a way not to go back to work!!!!!!!!!!!

  24. As long as companies understand the reporting rules they can make better decisions concerning activities, but that is not really the root cause of this incident. The root cause, in part, was that the company was willing to allow the employee to put themselves at much greater risk simply because they assumed that they were not liable for injuries incurred during the activity. Would you expect the worker to run across loose streamers on the floor during the course of her daily job? Of course not, so why encourage her to do so just because the assumption is that the company isn’t liable for injury costs

    The common sense approach from a safety professional position would be to consider the risk associated with the activity during “unpaid” lunches just as you would during paid hours. After all, if an employee is injured at home, the company will still incur costs associated with the employee being unable to perform work. The proper focus should be to build a safety culture that recognizes risk both on and off of the job.

    Reportabilty and liability are only a small portion of the total cost of injury.

  25. Hello,
    My name is Bianca. Not sure if anyone is going to respond to this comment since it has been years since the comments. I was recently hurt at the company Christmas party. Broke my ankle. Ended up at the ER that night. Then ended up needing surgery. I asked my company for help at this time. They told me they didnt have short term disability and I wasn’t covered under works comp. Should I get a lawyer to take this to court? Need some help and advice. My medical bills are increasing even with insurance. My husband is work two jobs now. Now my doctor said I take physical therapy which is $150 per session 3x a week for 4 weeks. We dont have the money for it.

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