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Employee injured at gym: Why was it covered by workers’ comp?

Aerobics

If one of your employees was injured in an exercise class, you wouldn’t expect that to be covered by workers’ comp. But that’s not how one court saw it.

Frank Torre worked for Logic Technology, a company that performed on-site contracting work for General Electric.

Torre suffered a spinal cord injury while participating in an exercise class at the G.E. fitness center during work hours.

A workers’ comp law judge ruled that his injury arose out of and in the course of his employment.

Torre was off duty when he took the class and wasn’t compensated for nor required to take it.

So to receive workers’ comp, he’d have to prove that his employer sponsored the activity, which required “an affirmative act or overt encouragement by the employer to participate.”

It turns out Torre was encouraged by his employer to have a gym membership. Logic Technology offers reimbursement to its employees for half of their G.E. fitness center membership fees. But in this case, Torre didn’t even seek reimbursement for the membership.

Another factor: Torre’s job required him to develop contacts with current and prospective clients, and the company president stated that participating in the fitness class helped do that.

Not only did the comp board rule in his favor, but on appeal, the Supreme Court of New York did also.

Do you agree with the court’s decision? Since Torre was encouraged to make business contacts at the gym, did that make his workouts part of his job? Let us know what you think in the Comments Box below.

Cite: Torre v. Logic Technology, Inc., Supreme Court, New York, No. 506423, 7/2/09. (PDF)

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Comments

  1. New York. Home of the red and yellow Empire State Building. It figures.

  2. This one is taking employer liability to an unhealthy new level. I wouldn’t be surprised if the company eliminated thier support for gym membership and off duty exercise programs due to this irresponsible ruling.

  3. SafetyBoy says:

    Where does it end? If your employer requires you to be at work at 9 am, and your in an auto accident on the way there, is that their fault? They required you to be there!

  4. Sad State says:

    Once again we have the Government interfering in the private sector which will in the end cause a benifit to be enliminated because of liability reasons, this will then allow the Government to mandate that the benifit be required to be provided by private companies, of course with the way things seem to be going it will all be Government run anyway.

  5. Wow, this is crazy. In order to get better health care for your employees at affordable rates you are asked to encouraged a healthy life style and fitness. The employer is then liable for any injuries that would occur during these activities? This ruling is taking things to a whole new unacceptable level.

  6. Who in the?… is John and what does the empire state building have to do with this?

    Of course GE is liable. They have a gym on-site, and that implies encouraged use.

    John, Duh, get your head out of politics. If you’re in health and safety you’re looking at providing ‘adequate training and supervision’ even in the gym.

    sounds like the fitness center should have trainers, as many gyms do, that watch on a pretty continous basis how the members are exercising and correct their technique if they’re doing something that can hurt them.

    and, the business contacts in the gym? That’s just icing on the cake. What would you think Torres would do, chat up a guy in shorts and tee, while he’s in dress slacks etc.?

    It amazes me when persons who are responsible for ensuring a healthy and safe workplace whine about the cost of ppe, and the cost of worker’s comp for employees that are poorly trained and/ or motivated.

    Have a good monday,
    Michael T.

  7. The Employer is liable in this case. One the injury happened during work hours, and two the employer encouraged the employee to attend and participate. That is a no brainer. Employers need to be careful on what they are encouraging employees to do during work hours.

  8. I am a fire fighter and am required to keep in good physical condition and encouraged to participate in a physical fitness plan. I know some of you may think this is very liberal but this is one of the best rulings by a court that I have seen. If your employeer requires or pushes you into something like this, then they should be responsible for your medical expenses if you get hurt!

  9. Toni Says says:

    It is all in the wording. Management should never ask you to do any work task on your own time. That was the companies down fall. Was he getting paid to network after hours?

  10. This doesn’t surprise me. I see this kind of abuse of workman’s comp all the time at work. I’m all for protecting workers, but when it defies common sense, something is wrong.

  11. I disagree with the court’s decision. Exercise and being healthy is part of a self-steem and also a way to reduce stress which will prevent many sicknesses. Many companies support it as an extra benefit to keep their employees engaged and happy but it is not mandatory.
    That kind of successful sues and allegations will continue destroying the moral and support from many owners and CEO’s in U.S.

  12. Hmmmm…Workers Compensation limits the company’s liability…..if this worker was not covered by Workers Compensation, what financial liability faces them with a back injury on their property during company time? Hmmmmm….I like Workers Compensation for this one.

  13. This is why this country can’t compete for jobs and is in financial crisis. I would think that if you work for a company, you are always looking for business opportunities when you aren’t on the clock. It has come down to, if you employ someone, you are responsible for them if they get injured outside of work anymore. I had an employee fall on her sidewalk at home before work and that was considered in her scope of employment also.

  14. Larry Ward says:

    Yes I feel that W/C should pick up the tab. The employer ask the fellow to make contacts at the gym on his time, along with paying for part of the membership. Even though the fellow was not employed by G. E. the employer promoted the gym membership. I would suspect that Torre along with Logic Technology was to gain form the membership. If your boss ask you to do this what would you say, NO!!!!!!!

  15. AOE/COE – “Arising out of the course of employment” says it all. If the guy didn’t wotk for the employer, he wouldn’t have been taking the class and wouldn’t have gotten injured – employer pays.

    The employer was subsidizing the employee to chat up GE employees in the GE exercise room during GE business hours – sounds almost like industrial espionage.

    Daniel, are you implying the injured employee is abusing the WC system, or the court is abusing the WC system?

  16. Are you kidding me. A. If the “gym” wasnt identified in a hazard assessment, which im sure it wasnt, or exercising was written down as part of his job description, then no ppe applies. B. Sad State nailed it on the head–you want to have an employee wellness program but, hmm, if an employee gets hurt exercising, the employer could be liable. C. He was OFF duty! plain and simple. Ex. If a tech support employee chokes to death and dies at their dinner table on a carrot, even though they are on-call that evening, is the employer liable, even though the employee wellness program says to eat healthy? This ruling is suspect and sets a bad precedent!

  17. Safety Guy says:

    At first read, it sounds as though the company needs to employ better lawyers.

    However, though the company may have expected him to meet potential clients at the gym and even gave him an incentive to have a membership, that does not mean that the guy has to workout like he is trying out for Mr. Olympia unless of course he thinks he is. One thing that we must remember is that 7 out of 10 accidents are a result of unsafe actions on the part of the employee and this is no exception. In addition there may have been a pre existing condition and this event was the straw.

    As a safety administrator for a company it causes me to think twice about company sponsered fitness and wellness activities for sure.

  18. The employer is punished for encouraging a healthy lifestyle that benefits both the employee and the company? The is taking this country’s sense of entitlement to a whole new level. This ruling will end all company incentives to live a healthy lifestyle, which benefit everyone through lower health care costs and healthier living. NOT a step in the right direction.

  19. This is a stupid, though not terribly surprising ruling. To Jeff the firefighter, I agree that if maintaining a certain fitness level is required for job performance, then it would be compensable. That does not appear to be the case here. The company was encouraging employees to live healthier, for the sake of being healthy, not for an inherrent benefit to the company (although a healthier workforce could bring lower insurance premiums). And to Michael Tuttle, GE was the gym owner, not the employer. There was no alegation of misconduct or negligence.

    Issues like this are inherently “political”, with the question of how much responsibility individuals should bear vs. the government. If this thread is any indication then it’s clear most American’s (who wouild also have been offended at the honoring of communist China in NY) realize that businesses are not a bottomless pit of money from which benefits can be granted.

  20. This is pathetic. Once again it is someone elses fault someone injures themself. Whatever happened to asking questions if you do not know how to do something. Oh I suppose it is the company’s fault they did not read the employees mind and know he would perform an unsafe act. People need to stop looking for blame and look in the mirror. If this type of activity was occurring in the 1700’s we would still be under the British rule. It is time for people to step up and take responsibilities for their own actions.

  21. I’m with Daivd, Jeff & Toni, the company incurred liability when (1) they encouraged him to participate in the gym and (2) when the company president stated that participating in the fitness class helped to develop contacts with current and prospective clients.

    Daniel, as per the story, this doesn’t appear to be an abuse of worker’s comp nor a defiance of common sense. The employer encouraged this activity & also offered to reimburse a portion of the gym membership. Common sense tells us they assumed liability.

    As for the rest of the commentors: you all seem to have gotten off track of what the issue is, an employee is injured at a gym & why it’s covered by worker’s comp. Has nothing to do with New York (or the Empire State Bldg), irresponsible rulings, what time you have to be at work, Government interference, encouragement for a healthy life style & fitness and last, but not least …. Michael Tuttle it’s Logic Technology Inc. not G.E. You folks should get a grip, read the article for what it is & not get on a “soap box” to ramble on unintelligently. If you’re going to put something out there, let it be something informative for other professionals to learn from. Oh, and most importantly, stick to the subject.

  22. Let me guess, all in favor of W/C for this guy, voted for Obama. Sad, so sad.

  23. Karen Smith says:

    Who protects the employer? I disagree 100%. If this guy buys a lotto ticket while on his empoyers time, is he required to split it with the employer?

  24. I’m the Loss Control Mgr for my co and so have custody of both the safety & claims side of things.
    I’m not happy with the ruling and would not like to see other states follow suit. Interpreted broadly, I would hate to see health/wellness programs suffer because of this. However, I do understand how it came about since the court stated the employer’s actions met the requirements for “an affirmative act or overt encouragement by the employer to participate” in the activity, a definition which seem to be part of the statutes in New York. I suspect the CEO’s comments led to that finding more so than the reimbursement of membership fees. Interesting that the synopsis states he was “injured during work hours” yet also states he was “off duty”. Seems it would need to be one or the other. Anyone from New York care to confirm re: employer encouragement test in statutes?
    To Safety Guy re: unsafe actions – If we could only protect people from their own stupidity . . . .

  25. I think it’s great that the company supports wellness and fitness but to have pay out a WC now is irresponsible of the courts however if his boss is pushing him to go then I can see their point. It would be hard for me to judge this one. I really do see both sides.

  26. Need to learn more details about this one…

  27. What’s next Michael, going to make sure they wipe their butt too. As for Jeff, if you didn’t workout and got injured becasue you weren’t in shape you’d still sue. Cradle to grave government. You people are what is wrong with the system.

  28. Good point Karen. If they’d win the lotto with a ticket purchased during working hours not many would support the employer splitting the winnings. That’d be unthinkable but the way things are going I wouldn’t be so surprised if an employer could be sued for emotional distress when someone bought a lotto ticket during work hours and didn’t win.

  29. We tried to implement voluntary after hours training classes at our facility. This was not company sponsored but employee sponsored training off the clock. Our lawyer advised us not to because when you’re off the clock you are not covered by Workman’s Comp. If someone were to get hurt it would have to be a claim on our liability insurance. This gym was a membership type gym and was not affiliated with the company. Torre chose the gym, not the company. I’ve been going to the gym all my life and have never had a trainer approach me to offer assistance with an unsafe technique. Where does it stop, people must take responsibility for their actions. Along this same line of thinking if Torre tripped and fell at home while thinking about making new contacts for his employer he should be able to file a workman’s comp claim also.

  30. at the G.E. fitness center during work hours. Is a quote from the article. Apparently it was on their property. Either Workers comp or a really bad finding by a personal injury lawyer.

  31. I’m just glad I’m not an employer because you’re damned if you do and damned if you don’t. Encourage an healthy lifestyle and pay worker’s compensation when your employee falls out. Don’t encourage a healthy lifestyle and watch the waistlines of your employees and medical and dental insurance premiums for your company expand at the same time. Its usually a wash.

    As far as the liability, does anyone on this board have a gym membership? I can’t speak for eveyone’s experience with this but I’ve belonged to three gyms in my lifetime and each and every one of them had me sign a contract stating that I would be using the equipment they provide me at my own risk and I was not able to hold them responsible for any injuries I incur while doing so. Where was that contract in this case? My company does not have an on-site gym but we offer a mother’s room for nursing mothers and other “outings”. To use the mother’s room or attend outings like Adopt-A-Highway or such, it must be outside their normal work hours, unpaid, and they sign a waiver releasing the company from liability if they become injured or their property is lost, stolen, or damaged. Its a form letter but covers most events. I wonder if that would have made a difference in this case.

    This article also states that he was in a class, typical classes have a teacher and students (at least to my understanding), so he was supervised. This proves that even under supervision, employee behavior can cause injuries and accidents to occur.

    I hope for their sake, G.E. continues to offer gym memberships to their employees. I think the benefit outweighs the burden. I doubt that this one case will change an initiative like that. Thats just my two cents. Isn’t America wonderful that we have the freedom to speak in a forum like this…as we choose?!?!?

  32. Mangalore says:

    I agree with Michael Tuttle. Leave the political crap out of it and stick to your profession. The company REQUIRED AND ENCOURAGED his participation, fully expecting to reap some kind of business benefit. The business is liable – case closed! We have a gym in our facility and hired a firm to manage it. I, together with the trainers, conducted a hazard evaluation BEFORE allowing enrollments. Part of the enrollment function was educating the gym users on the findings of the hazard assessment BEFORE they used the equipment. I informed my management that any injury suffered as part of this (encouraged) activity will likily be a WC case. They understood the risk and were wise enough to see that a substantial reduction in health insurance costs could be (and has been) realized with a healthy and fit workforce. All business involves risk taking. It’s obvious Logic Tech could have avoided this ruling with proper preparation. So let’s stop with all the ‘govt interfering with business’ nonsense.

  33. Actually Mark C, I voted for Obama and I’m for the employer in this case. Its sad that people lump all republicans or all democrats or all HR managers or all safety professionals into categories like that. To re-iterate what Pat said, stick to the subject. There are other arenas in which to discuss our political viewpoints.

  34. Yes. I agree because the injury occured while he was conducting part of his job duties an in authorized area where he was suppose to be performing this part of his job duties.
    So basically he was doing his job while on company property.

  35. As part of my Wellness program I offer a reimbursement of gym memberships for my employees. After reading this I’m considering canceling it. No go deed goes unpunished.

  36. Mangalore says:

    Ken: “If this type of activity was occuring in the 1700s we’d still be under British rule. It’s time for people to step up and take responsiblity for their own actions.” — British rule??? Just slightly off track but what the heck – saying anything is better than saying nothing right? As for people taking responsibility, fair enough. But shouldn’t we expect businesses to take responsibility for their actions as well? Coddling and rewarding business for their stupidity is not what we need from Safety professionals.

  37. Safety Guy says:

    Pat, Hey thanks for that unintelligent keyboard lashing you just dealt to all of the apparent “morons” out here. Are you are worker’s comp analyst? Lawyer?

    This outcome does have to do with New York (at least the Worker’s Comp Board), the rulings, the company’s policies, a healthy lifestyle and Mr. Torre. Now the article as it was written leaves things to guess work, however this article was written also to encourage comments that we are seeing. So please keep the bashing to your self.

    Barring the fact the company I’m sure is re-thinking it’s policy on encouraging gym memberships (sad for any employees that will most likely have to pay full amount or loose their membership). It would cause any company to re-think their tactics to “encouraging” healthy lifestyles for their employees. I think the challenge of this situation boils down to one word “encouraged”, I understand that if a person was “expected” such as Jeff, BTW thanks for your hard work as a fire fighter, that there is an assumed liability. However, this is different and the reason I say this is that when an employee is “encouraged” it lends us to believe that there is also a level of personal responsibility expected on behalf of the employee. Which is why this article leaves us with this sense of angst.

    I agree that the company needs to rethink about it’s policies, however I do not agree with the ruling as it could have effect in other states. I too am curious to hear from folks (particularly Safety. Loss Control or Worker’s Comp) in the New York area about this. To me this seems like another potential way for exploitation of the worker’ s comp process that I and the company I work for do not wish for.

  38. It’s simple: an employer should only encourage employees to work, nothing else; no gym co-payments, no office parties; no summer picnics; no bowling parties. Employers are under attack for everything. Even those employers that have a proven documented track record for consistent, positive employee morale and continuity of work force are being litigated into providing less and less fun, ‘non-work’ functions because the cost of doing so has become prohibitive.

  39. I can see both sides & both points of view, not sure if i agree the employer should be on-the-hook for comp but not due to “Who is liable” (its pretty obvious this company ‘almost’ requires participation if you want to be employed w/them on a long term basis in sales) but it can have a pretty severe rubber band affect that will cause employers to re-think future gym benefits. What I do love & respect however is that here in America we have both oposing view points and are allowed the freedom to express same~

  40. Wayne Wierzba says:

    Perhaps the company should have had the employee read and sign a release of liablitiy waiver and have a trainer do and orientation on the proper use of fitness eqiupment and proper techniques. This is what private Fitness centers do.
    Perhaps if this was done the company would’nt have been open to a W.C. claim.

  41. Mark C what does the court case have to do with Obama????????????? Were talking W/C. Very simple the employer Logic Technology placed themselves with the liability.

  42. Many states actually exempt fitness center activities from WC liability bc it is a voluntary activity and not part of the job. Going to the gym does not arise out of course and scope of employment unless maybe he was the instructor. Sounds like a judge in NY needs to bone up on actual WC and employment law before deciding anymore cases. Probably signed the docs with his left hand.

  43. It sounds like the employees were strongly encouraged to make client contacts at the gym. If that’s the case, then yes, Workers Comp applies and so would FLSA. They were placing pressure on the employee to “work” on his off time by making client contacts in the gym. Employers need to be very careful in what they say and especially in what they imply.

  44. A lot of the people on this site obviously understand H&S (M. Tuttle common man, have you ever represented a WC case ever??!?!..it’s a lot different than a safety meeting and PPE check)…..but you really have no idea about workers’ comp law. Seriously people, read up on it then come back and comment with some educated thoughts…..WC is a “no fault” legal system, but it does have limits. VOLUNTARY activities such as a fitness center are not covered…period!! I am sure they all signed off on the “yes I had the orientation” sheet…blah blah blah… and it’s STILL voluntary. If you must be fit for your job…and you trip over scruffy while running on Sat morning with a donut at home in your boxers…..do you think your company should pay for it??? Well, They will in “health benefits” that’s why we have them……but it’s NOT a compensable WC claim folks……sorry.

  45. In an article dated Sept. 11 a truck driver was denied WC aftr being injured steping into
    a truck while on the job and here someone working out at a Gym is granted WC even though
    he isn’t on the job or even a truly job-related activity. Seems the courts just want to see
    how far they can twist the rules just because they can.

  46. All I can say is that as a new HR manager nearly a decade ago, I was sooo excited about putting plans like a wellness program into effect to help the employees and show good faith, etc. Now all I do is look for ways to avoid being sued. I can’t even remember how many programs we have dropped or limited due to liability concerns since I started. How is this really helping anyone? I really wonder how we got to this sad state of affairs in the once great country we live in…

  47. Joe Weimer says:

    This is clearly a case where a liberal judge sat on the ruling. there is no way you can justify it, they figure a big company can afford it. When you cross the line (which is now blurred) to expect a company to be the employees parent, you should also give the company the right to fire anyone who doesn’t do what it expects. that would be a case that the company would lose. Keep voting liberal and companies will pay for everything.

  48. This is a perfect example of why companies keep moving out of this country. Now if only the judges, lawyers and politicians would figure it out. We can’t find anything manufactured in the USA anymore because all these rediculous court decisions make it too expensive. The stuff made in other countries is much more affordable. We will all just pretend they have the same level of protection for health, safety and environment.

  49. Safety is my passion and I think this is silly. People just have to take responsability for there own actions. Everyone is just looking for someone else to foot the bill because they don’t want to admit they made a mistake. Buisnesses, W/C and the employee’s. No one has the money but it’s always someone else’s fault. We don’t know why the case went to court in the first place. Second we the “jury” were never told what happened at the time of the incident. It sounds like a bunch of finger pointing and CYA to me. If the employer and the W/C carrier let it go to court, then let them deal with it. I mean think about it. How many different “SAFETY” orginization messages to hear everyday? Police, Fire, EMS, Public Safety, the list is huge all around you, yet just think about all the people who everyday violate all the rules (LAWS) and say they are inocent. Our prison system is full of them. I don’t hate people, I just can’t tollerate those who want everything but are willing to do nothing. It’s kind of like a saying locks only keep out honest people. If they want it bad enough, they will find a way to get it!!!!! $$$$$$$$$GREED$$$$$$$$$$ THE AMERICAN WAY

  50. This case is a limited case where there was encouragement for the employee to participate to benefit the organization (business contacts). In this case, if the employee could not access workers comp, then he would be free to sue the employer (talk about liability). The fact that the employee is covered by workers comp, the employer enjoys a limit to their liability exposure.

    Of course those who disagree probably voted for the other guy and expects the government to bail out the company if their exposure gets too large. Workers Compensation, by the way, is funded by the employer and is not the government.

  51. Life in Alaska says:

    I imagine this is an extreme case, although real. I am an HR manager, I support wellness and gym memberships, and I don’t plan to change. My employees know better than this. Lack of common sense places oneself pretty low on the ladder here in Alaska. People who injure themselves at the gym and then expect it to be someone else’s fault and responsibility don’t make it too far off of the bus here. The foodchain is very short. Suck it up NY.

  52. I am responsible for risk management of our company so I take care of WC and liability insurance. I agree that Work Comp should probably apply. Employers have to be careful iof the activities they sponsor and what they ask of their employees outside of work. It was implied that the president of the company encouraged and expected his employee to make contacts at the gym. I think there is probably more information regarding the employers participation that is not being published. If the implication was not made the verdict might have been different.

  53. Many companies offer partial reimbursement for their wellness programs. This in itself should not cause the employer to be liable. My thoughts are that the President’s comments are what tipped the scale. Those comments made it a work related incident, whether or not he actually sought clients.

  54. I think MG missed the point: it doesn’t matter what has been signed or if work comp (of which I have 27 years experience) is a no fault concept; litigation is determining what employers are responsible for even after laws have been enacted to counter some litigated cases.
    If common sense played a part in determining what was to be a work related function then that would be the end of it. Unfortunately, those that legislate rarely have common sense and those that adjucate have even less.

  55. Actually Mr. Tuttle, I believe your head is somewhere. Your comments imply that there is little responsibility of the individual. DMV gives you a license, are they at fault when YOU get into an accident? It amazes me that individuals believe that “ensuring” a safe and healthful workplace means taking all responsibility out of the hands of the individual. So when you do your job poorly, it is your employers fault for not training/motivating you? I disagree, it’s there fault for hiring you, and your fault for getting fired.

    Cases like these further contribute to the financial unsustainability of the Workers’ Comp system.

  56. Well, Safety Guy, “You’re Welcome” First off, this is an open forum for all to “express” their thoughts, opinions, comments, etc. on the given subject matter. Secondly, don’t try to put words in my mouth or paper as to what I was trying to convey and it certainly was not considering all “out here” as you put it as “morons.” Now if you feel as if you are a “moron” after reading my comments, well that’s on you.

    The outcome doesn’t only have to do with New York, it’s not the only city this is happening in and you’re right the article as written leaves quite a bit to guess work. However, once again, the company encouraged the membership. Nothing was said or implied that it was for the benefit of a healthy lifestyle or wellness program. Rather as per the president of the company who stated that participating in the fitness class helped to develop contacts with current and prospective clients.

    Now you also stated “this article was written also to encourage comments that we are seeing. So please keep the bashing to your self.” I’ve made my comments, expressed my opinios and if you feel as if you’ve been “bashed”, well again, that’s on you as none of what I’ve stated was directed, expressly to YOU. If you’re going to take “offense” to what’s being said out here, you sure have some thin skin. Oh, BTW, I’m neither a lawyer or workers comp analyst, but an HR Manager.

  57. Mike R. Started with a good point regarding liability. However, i believe the comments regarding reading the laws again is valid too. While unsettling on the surface, you need to break down the facts in this case, and review the possible arguments the employer has (or could of had) to dispute the claim of work comp. Arising out of and in the course of employment is a simple phrase, but interpretation is for the robed ones. In this case, the employee was “on premises” and “during work hours.” At this point, it becomes the employer’s obligation to identify justification to deny the claim. Some states have very restrictive work comp laws to attempt to limit claims as this one, and can successfully eliminate claims where no “occupational illness” or “sudden injurious event” occurs. However, it sounds like a spinal injury was a sudden event. The employer needs some argument that the employee was not engaged in work for the employer. Instead, the company position is that the employees are “encouraged” to utilize the gym, not just for health, but for “client development.” So the legal arguments are, “Was he at work? Yes. Was he “working” for the employer? Yes. Folks, not too many courts in this land going to disagree in this case.

  58. Some folks seem to forget that workers’ compensation is generally defined as covering workers who are injured [et al] as a result of actions “…arising out of their employment.” It is insurance whose premiums are paid for by their employer. It does not matter whether or not the employee was ‘at fault’ for the incurred injury. Being injured ‘on the job’ is more anecdotal than factual.

    Such definitions preclude many of the emotional arguments put forward above. In the instant case, it is my view that the employee unarguably should be the beneficiary of the workers’ compensation.

  59. Sad State says:

    Wow, I do not ever remember seeing so many responses to a topic, this is clearly a hot issue and will probably result in many organizations discontinuing these types of programs. Let’s face it the days of using common sense are gone and never will return until we make the choice to change from our path of allowing lawyers to run everything, yes I do understand that there are intelligent good intentioned lawyers out there unfortunately as a people we flood the the ones that promise the world, as stated in another post “greed”.

    The complany I work for wanted to participate in a “Walk across America” program as part of it they had participants sign a waiver because they did not want someone to claim WC if they tripped while at home wearing a pedometer. I guess I was not suprised by this but what did suprise me was the number of people that refused to participate because of not being able to claim the liability.

    The sad thing here is in today’s society the argument can go either way and I have seen some people abuse the current system and some that try to avoid it because they do have a sense of personal responsibility and are not willing to punish a company for their error in judgment.

    What is the correct answer?? As with everything else this topic is a 40/40/20 split with the 20 making the final decision for the rest of us. It is interesting how many times that feelings win over logic.

  60. I think the headline is misleading everyone.

    The determining factor here should be : Was this employee injured performing his work activities of “developing contacts”? If so, the headline should read employee receives W/C for injury that occurred while performing his job.

    If the employee was there for exercise, no workers’ compensation should be paid for this injury, encouraged participation or not. Providing and encouraging healthy opportunities for employees should not be punished.

  61. Very interesting comments. Some with thought! I believe, “Safety Begins With Me”, so I believe in taking responsibility for my actions. Sounds like a good one for the “Stella Awards”… get someone else to pay for your lack of taking responsibility and carelessness.

  62. Recently an employee was heading out to a working lunch to meet with clients. They tripped on the stairs in the office
    building owned by their employer fell a flight of stairs and was taken to the hospital in an ambulance. The W/C insurer determined that the case did not qualify for coverage under workman’s comp because they were not at their place of work, i.e., their cubicle. It was the insurer’s determination that the stairs were not part of their workplace – and neither would the parking lot be, had they slipped and fallen there.

    It seems that the insurer is selling a product and is they are allowed to decide when to pay out benefits, they will interpret narrowly. The court should have all of the info we were not given in the article and it’s their duty to render a decision that considers all of the info. The article brings up some interesting points, but clearly not the whole story.

  63. mamajanna says:

    This ruling is nothing new. Several years ago we had an employee who re-injured a war time injury during a company-sponsored softball game. The Georgia WC Commission determined this was a compensable worker’s comp injury.

  64. Disheartened says:

    Leave Politics out of it? If by politics one means the difference between right and wrong, then it cannot be left out of it. Was the employee at work? Hell no, he was excercising at a gym. Was the employee required to paricipate? Hell no – it was offered by an employer as an incentive – the employee could have said NO. Or, am I supposed to believe he buys every used car he is offered? Give me a break, this flies in the face of every injury at every work site that actually was accrued in the process of WORKING!!!! Those out there that say that legally this man is entitled to W/C – by the letter of the law, evidentally. HOWEVER, IT IS THE WRONG DECISION, let me tell you why: W/C is a vehicle for the american worker, the more decisions such as this, the less effective it will be going into the future when real compensation is needed for real work injuries. Decisions such as these undermine the real need for Workers Compensation…It is a guarantee there will be less opportunity for thousands of workers across this country to become healthier and to have this benefit because of this ludicrous decision.

  65. Amen to Disheartened!!

  66. Having your boss suggest a way of getting contacts/sales can be very compelling, particularly in our economic situation where sales in general are way down. The employee could be fearing for his future with the company and decided he would jump all over it. Very eagerly.

    Company sponsored wellness plans are nice but some of us have been going to the gym for many years without that advantage. People who take responsibility for their own actions buy their own memberships, kinda like the injured employee did. He just happened to have gotten hurt real bad.

  67. Mangalore says:

    Good, responsible companies that do their homework and have strong safety and health programs will not have issues with this kind of claim. Our company is also are involved in charitable social activities like Walk Across, Race for the Cure, Live Strong, etc.. There have been injuries and claims, but they haven’t broken the company due to the fact that our Safety and Health program is strong, resulting in a low accident rate and thus, a low insurance premium. Less competent companies will experience greater WC issues and increased premiums but that is their own fault. And of course they’ll want to blame anyone but themselves, thus the attacks on the gov’t or better yet, the American worker. As usual, these companies whine about others taking responsibility, but won’t take any themselves.

  68. It amazes me how some of us can justify this decision. It is yet another reason businesses leave NY, being from NY I know, I see the drain everyday. We live in the highest taxed state overall. We are either number one or two in energy costs, and Number one in Comp. insurance costs. This is just one of the little gems that says to a buisness owner ” Why in the Hell should I do business in this state or even in this country”.
    If it were me, I’d board the damn gym up and nobody uses it. You can’t do any good for your employees without someone trying to make an issue out ot it. This is why a lot of employers are stopping these benefits, they can’t take any chances anymore. Before you know it we will have to train employees how to drive home safely,( I mean that is part of their job, to drive to and from work) , how to walk safely on sidewalks that are slippery that are nowhere near the workplace, how to mow your lawn safely, because you cut it just after you got home from work. A bit of a stretch you say,,Well, just wait and see, some judge will see it that way soon.
    I am all in favor of the employer providing a safe working environment, but because of rulings like these we will all pay for it in the long run. Some personal repsonsibility has to come into play here or all businesses will move out of this country and where will the money come from then to pay for all these nonsense claims,,,,

  69. This is my first time responding, but I have to say I am very disheartened by this ruling. This type ruling opens too many doors for those that do abuse the W/C system. For example: if I encourage my sales employees to eat healthy and they have an alergic reaction to some food at a health-foods restaurant, so long as they mention or chat-up my company to the waiter or some other patron, I can be held responsible because he was “working” and I “encourage” healthy eating.

    Besides, for those that are caught up on the “signed waivers” and the “company premises” are missing the bigger picture that this ruling paints. Even if he was NOT on company property, since he was encouraged to participate, he could have been at the local Gold’s Gym, talking up a stranger and still get W/C.

    This is a very bad precedent in my opinion. I mean, there are public service announcements on my TV from the President and Football players and celebrities encouraging me to be fit and exercise. So, are they responsible for my injuries if I get hurt? Of course not, they encouraged my participation; they did not require my participation. One question: we encourage our employees to be safe at home, if they are not safe does that make it our responsibility?

  70. Disheartened says:

    Good, Responsible companies are just as vulnerable to this type of frivolous activity as the next company. All it takes is an individual who has an agenda – this case proves that beyond a doubt. If one does not believe that, just take a minute to think about it. The company involved in this action had taken time and resources to administer a fully functional health and wellness program, to which the majority of companies have not given an iota of thought, let alone put into place. It is another guarantee that if anyone, as an individual employee, wanted to wreck havoc on a good, responsible company, there is not much that could be done to stop that from occurring. Hire a good attorney, have a good relationship with the doctor, and have at it…the good, responsible company, will, more than likely, end up paying, whether it is a settlement or awarded by the WC Board…This all goes back to THE DECISIONS THAT A WC BOARD MAKES. This is effectively what this case is about. “Torre was off duty when he took the class and wasn’t compensated for nor required to take it.” Think about how many opportunities an employee with an agenda would have to substantiate a claim, i.e., driving a company car, trips down a flight of stairs at the hotel after having several beers during a sales call, etc. Good Lawyer, Good Relationship with a Doctor…you get the point.

  71. Good points from both sides but I agree with the employee being held liable for his own actions. Even if the employer “encouraged” his gym participation, he could have said no! He made the choice, not the company.

  72. Michael T- So now it’s the trainers job to “watch” all those working out?? When one walks to the drinking fountain at a fitness club, should the trainer hold his/her hand to make sure he/she doesn’t trip and fall over his/her own two feet? Because that is a potential and could be considered a workers compensation claim too huh? ABSOLUTELY RIDICULOUS!!!!

    Where does the employer’s liability end? Encouragement on behalf of the employer is simply just that. Many companies encourage their employees to eat healthy. So, if I choke and die while eating a carrot at lunch, is that considered workers compensation? I was eating healthy because my employer encouraged that as part of a wellness program……seriously people, this has got to stop!!!

  73. I had to smile at DMB’s comments. It happens that I do require all my employees to attend driver safety training (provided on-site, on my dime) and include the part about ‘going to and from work – don’t get distracted – focus on driving, not on the next email you have to send at work’. And Slip and Fall training is expanded to include all of one’s ‘world’ not just the work world. And Operating Powered Equipment is expanded to include all equipment, even lawn mowers. It takes just a few sentences during any safety training session to include the employee’s wider world beyond our fence line.

    This approach pays great dividends (no pun intended) – we are in an inherently dangerous business, yet we have had no lost time incidents or accidents in over two years.

  74. Blackgold – that’s wonderful that you include non-work safety along with your regular safety training. It sounds like you have a great record. But it is totally irrelevant to the discussion at hand. Do you really want to be liable for your employees commuting safely to work? The more WC is forced to cover (and coverage is highly regulated by government), the higher the premiums will be. Those premiums will either get passed on to end users, or taken out of employee pay in the form of lower wages. When costs get too high for producers, they will pack up and move, hurting many more workers. Maybe they will go to another state, maybe they will go out of the country.

    Ideas have consequences. It may feel nice to help the poor worker who gets hurt at the gym, but far more people will suffer (lost benefits or lost jobs) as a result of these decisions than will ever be benefited.

  75. Blackgold, this is exactly to what I am referring and you and your company need to be very careful.

    By covering these activities in your “required” training, then you could be held accountable if the employee claims that your training did not provide enough safety information to avoid hurting himself while on his own time and equipment. I think this precedent is really that thin of a line.

    Where does personal responsibility start and stop? It used to be at common sense, then it moved to the times on the time clock, but now there really is no stopping point if “encouragement” can be considered “required.”

    I have never worked in sales except when I was in the Marine Corps as a recruiter. But my Mother was a saleswoman. And the one thing this ruling does not consider is that most “salesmen” are selling all the time. On the clock, off the clock; they are networking and chatting up constantly to build their sales. This ruling says that as long as they are “selling,” then the company is responsible, because all companies encourage their sales people to sale. Most commission based salesmen are CONSTANTLY on the sell!

    This is the reason I find this ruling so discouraging. It really opens the door for blatant abuse.

  76. I have another side of this to put into the mix. My husband was injured at work. His job requires him to be able to lift heavy glass for commercial doors and windows. He goes to the gym for himself and not for his employer. The Workman’s Comp Insurance is trying to claim that he actually got hurt during his workouts and therefore this shouldn’t be a workers comp claim. He hurt himself doing his job not at the gym.

  77. Mangalore says:

    Disheartended:”All it takes is an individual who has an agenda – this case proves that beyond a doubt.” — I’m sure that happens and we should be vigilant to such, but that is not the case here. It’s obvious to a actual safety professional that this instance meets all the criteria of a work related accident. Please stick to the facts: Employer strongly encouraged the employee to network for business gain. Whether it’s during or after normal work hrs is irrelevant. The employee was injured doing exactly what the employer encouraged. Pretty obvious for those who’ve had a modicum of Safety experience. IMHO – Safety personnel who cannot understand even this level of accident analysis represent a liability and waste of $$ for their company.

  78. Mangalore says:

    Mark R:”…most salesmen are selling all the time…on the clock, off the clock..” — I’m sure if the salesman made the company a lot of $$ on his ‘off’ hrs the company would gladly accept the income. So why shouldn’t the company accept the liabilityof an accident during the same period? I don’t understand this business worship at the expense of the American worker. By the way I am a Safety professional for a multinational as well as a small business owner.

  79. We appreciate the comments of those who think we are taking too great a risk by considering the employee’s ‘wider world’ when discussing safety issues. However, there is no such thing as ‘risk-free’ in any activity. We prefer to be aggressive on all fronts. Timidity has no place in our work.

    The entire company team receives compensated days off [one per quarter] for continuing our ‘no incidents’ reputation for that quarter. They also receive a separate monthly check that reflects the percent quality improvement for the previous month. Safety is part of the equation. The amount in the check is calculated by multiplying the gross wage (including overtime) by the percent improvement [discounted by 0.5%]. So, if the improvement, including safe work practices is 3%, say, each person receives a check for 2.5% of their gross wage. We firmly believe that safety is an inherent part of quality. Since it is the team effort that increased quality and safety, the team gets to share the monetary improvement, as well.

    We train ’em, reward ’em, and keep a steady work force. Great motivators. Oh, and some folks have to travel by helicopter to offshore rigs [they have to take ‘ditching’ training in case the thing falls out of the sky]; many folks are on the ground in areas of the world that are inherently dangerous [read: shooting going on]. The only time one should be afraid of risk is when one is too timid and unprepared. Our motto: “You have to be smarter than the gear you operate.” And that includes Workers Comp.

  80. By the way, Mark R., thank you for your service. Semper Fi. We’ve been there, done that, got the T-shirt.

  81. If I have an employee, who is working hard and exerting himself, and he is out of shape and has a heart attack… would that be a w/c case….?…. result of actions arising out of their employment! Where does it end? A guy tips a vending machine over and gets comp, company sponsors a night of bowling and someone gets comp… and now this. RIDICULOUS!

  82. I feel that the issue is encouraged but not required. Wasn’t on work time. We need to draw a line on protecting workers as well as protecting employers. If you are on the clock and being paid for that period of time you should be able to receive w/c benefits if you are injured. If not, you neeed to take responsibility for your own actions. These type of rulings is what is getting all systems out of whack! Why do people get the attitude that if they do something that is not required and something goes wrong its got to be somebody else’s fault.

  83. I still believe a lot of you are missing the point(s). Work comp is intended to be worker friendly. Meaning, interpreted in the favor of the employee when things are not clear. The other issue here is the employer gave up arguments against the claim in their statements. Why would an employer do that? Maybe it was because if the claim is covered by work comp, sole remedy protects the employer from civil action. In addition, what if the employer provides the employee’s regular health insurance? Work comp is designed to control costs. This could have been much more expensive for the employer if work comp was denied. Maybe the work comp and health insurance are with different providers. The health insurance may have denied the claim because it happened on premises during work hours. I can’t remember how many work comp claims we have filed because health insurance denied coverage until work comp made a determination.

  84. Sad State says:

    Here is that has not been brought up yet, if he was indeed Working, Networking he is meeting and talking with people, now I don’t know about anyone else but when I am at the “Y” excercising I am not talking to anyone, I am working out which by the way does require concentraion as those machines can be dangerous. If this employee was talking with others then he was not working in a safe manner. Another example of how far we can take things.

  85. Dan Mueller says:

    I have not always agreed with some of the decisions made in favor of WC; but I will with this one!

    If a company suggests; implies and reimburses you for these types activities; that means they expect you to participate (in an indirect way) and fully support the function. Especially if there is an underlying motive for the business!

    I do agree with a previous statement that it would not be surprising to see companies pull support or back away from these types of activities; due to this ruling.

    It is getting pretty literal and black & white in the world; thanks to the thousands of bogus claims and we can only blame ourselves and not taking of individual reponsibility for that!

  86. If I twist my knee, playing golf with colleagues, I won’t be filing.

    I’m issued a blackberry mobile phone, and I trip while walking in between stores at a shopping mall while answering an email from my boss, on a weekend. I was supposed to have answered the email yesterday, but just forgot. Since I’m expected, but not directed to use my blackberry, its compensable through w/c? I think we are stretching the laws to cover everything in a entitlement society. Judges are their to interpret the law, its not black and white in this case, and I don’t think a ruling in favor of covering this injury truly captures the ‘essence’ of the law.

  87. Disheartened says:

    It appears that Mangalore knows more about this situation than the article suggests. When I read the article and look at the actual facts before me, nowhere do I see the words strongly encouraged. For those of us with a modicum of safety experience, it is essential not to bring items not in evidence during the investigation….Encouragement is offered everyday and in every way during the course of employment – please tell me where that line is drawn between what is work related and not work related. Its not, and you can’t, only the jurors/board members can. Brian’s description and others who have described what seem to be far fetched scenarios prove that. Based upon the words I read (the only evidence available to me) I disagree with the decision.

  88. I only see one side here if you stick with the facts. The associate was encouraged by company president to use the gym during business hours to develop new clint prospects. This if in fact true, would make it work related. Otherwise, doesn’t OSHA interpretation make it not a recordable injury if someone is using a company gym on their own and not being directed to?

    It is ridiculous to expect a company to pick up the tab for offering the use of a company gym as part of a wellness program. When will common sense rule! Is it better for companies not to offer such programs so they do not have to worry about comp cases? I am the safety director for our facility and we are in the process of putting in an exercise facility and I applaud it as part of a wellness program. I also plan on using it, on my own, to get fit, not because I am being advised to. I see it as a benefit and saves the cost of enrolling at an off site gym, not to mention the convenience of working out here and saving time.

    Jesus, can a company offer a good, legit, wellnes program without fear.

  89. I also encourage my employees to stay fit and live healthy and pay for many programs to that end. My attorneys tell me that this is a perk and I could be liable for any injuries. I guess I’ll have to be the bad guy again and stop all the assistance I give for such programs.

    I also help with child care costs for my employees…..I should probably take a look at my liability there also. If the courts continue to make these liberal rulings people should aim the gripes at them instead of corporate america. After all, we started our companies to make money. Not to provide deep pockets for frivalous claims. And people wonder why we are cutting back on perks……..

  90. Buck McKibben says:

    I’m happy to see so many people responding this issue “get it”. In this case the employer had encouraged use of the gym which it provided on it’s premises and had it’s employees using during work hours. Can’t really get much clearer evidence of job-relatedness than that. The issue some folks seem to miss is that employers have to make decisions about risk and the liability that comes with it. On one hand they want healthy employees for reasons all HSE professionals should know (reduced sick days, reduced medical costs, higher productivity, better mental state, and so on), so they provide gyms, memberships to health clubs, and encourage their employees to make contacts (work) while there. On the other hand, all those actions put them at risk because they’re obviously creating circumstances where their employees are working, and that implies workers comp coverage. As Michael T. and many others stated above, more HSE professionals need to “get real” about workers comp and develop the ability to see past their personal prejudices to the seat of the matter. Most business owners are able to do that, so those of us who support them in their business endeavors should be able to “get it” too. Every business decision implies a certain level of risk. I’m betting GE knew what that risk was and also knows the net gains outweigh the risks, even when an unfortunate injury does occur.

  91. Cool Daddy says:

    Buck, thanks, I now “get it” – however, what I don’t get is this: This article was published on the basis of it’s sensationalism. This case is “over the top”, it’s what people want to read and hear, and makes for a good controversy. It is, like you state, a Risk vs. Reward decision, but c’mon, it is not right to sue your employer for WC benefits when it is offering a health benefit, when you are injured during your workout, nor is it the right thing for the WC board to support such a fiasco. Others suffer for it, it is a personal health issue – not a work related incident…I was on a cruise this weekend (not sponsored by my employer) but I made a couple of business contacts – maybe I should go for workers comp for a diving incident that I had – it was in the course of doing business, they allowed me to have vacation to do it – where the hell does it end…Rediculous, and just plain wrong, just like this decision by the NY Supreme Court….

  92. Buck McKibben says:

    I’m with you, “Cool Daddy”, sometimes the courts’ and boards’ decisions leave your head spinning. This just wasn’t one of them.

  93. Mangalore says:

    Wayne: “Safety is my passion and this is silly.” — This epitomizes the rather pathetic and emotional response we’re hearing from supposed safety professionls. Our profession requires that we address such ‘incidents’ in a dispassionate manner, absent political ax grinding. It’s clear to true professionals that the ruling was not merely accurate but just. The company encouraged (strongly or otherwise is irrelevant) this employee’s participation in an activity (wellness program) for the company’s benefit. The emplyee was injured while performing his company’s duties. This is a compensable injury by existing (WC) standards. All this hyperventilating and attempted obfuscation on the part of those who disagree with the ruling is merely a feeble attempt to sway opinion when their logic fails.

  94. Cool Daddy says:

    OK Mangalore – so now I’ve got workout insurance, what is not to like? My company pays part of the dues – so with your logic, if I rupture a disc during my workout, or tear my MCL playing pickup, hurt myself playing flag footbal (sponsored by the gym my company assists me with) WC takes care of it – where is the logic? This is not what Workers Comp was set up to handle – regardles of your professional opinion, I disagree with the decision, and I AM A SAFETY PROFESSIONAL. This is great – it never would have dawned on me that it is right and my employer is responsible for my behavior 24/7! This is such a relief – I can now do all of these things and recieve 66% of my pay to boot if I get injured + no medical bills…Logical, don’t you think…

  95. Mangalore says:

    Repeating the facts that you so conveniently set aside is an obvious waste of my time – so I won’t. You – a safety professional???? A safety professional would stick to the facts and avoid sensational statements that are only uttered to emotionally incite and promote ignorance. Try this: LESS HYPERBOLE AND MORE INTELLEGENCE. THAT’s logical – don’t you think???

  96. Cool Daddy says:

    No.

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