Does word of a team-building exercise cause you to think, This is an injury waiting to happen? If you’re right, then you have to wait for the next (kick)ball to drop: The injury may qualify for workers’ comp.
We’ve written about it before: If a team-building exercise is required and an employee is injured, the employer may be on the hook for workers’ comp.
So is it possible that a team-building event is required for some employees but not others?
That seems to be the conclusion of the South Carolina Supreme Court in a case involving a company kickball game.
Stephen Whigham, a manager at Jackson Dawson Communications, came up with the idea of a company kickball game as a team-building event. He proposed the idea to his manager who told him to organize it.
His boss opened the company checkbook to the tune of $440 for the game.
Whigham might be sorry he ever came up with the idea. While playing, he jumped to avoid being thrown out and landed awkwardly on his right leg. He shattered his tibia and fibula and had to have two surgeries. His doctor also told him he’d eventually need a knee replacement.
He applied for workers’ comp, and a commissioner denied his request on the grounds that his injury didn’t arise out of and in the course of his employment.
In South Carolina, one of three factors has to apply for an injury suffered during a recreational or social activity to be covered under workers’ comp:
- It occurred on work premises during a lunch or recreation period as a “regular incident of employment”
- The employer expressly or impliedly required participation, or made the activity part of the service of an employee, or
- The employer derived substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale.
The workers’ comp commissioner found:
- Whigham wasn’t required to attend the kickball game, and
- There was no benefit to the company beyond general employee morale.
The full workers’ comp commission and a state appeals court affirmed the commissioner’s decision.
Next, Whigham took the kickball case to the South Carolina Supreme Court.
It was his idea, but …
Whigham told the court his injury should be covered by workers’ comp because his participation was required and the company benefited from the event.
The company emphasized the event was Whigham’s idea and therefore it had not required him to participate.
It was also noted that employees didn’t have to attend the game. If they didn’t, they had to work (the game was held at 3 p.m. on a Friday).
The court agreed that Whigham was “impliedly required” to attend the kickball game he organized and that it became part of his services.
How is it possible that employees weren’t required to attend, but the court’s majority found that Whigham was expected to be there?
It comes down to this: Whigham’s boss told him to organize the event.
When asked whether he felt the event was voluntary for him, Whigham responded, “I think it would have been a reflection of poor management if I decided not to show up.”
His boss said if Whigham hadn’t attended the game he would have been “surprised and shocked.”
“You don’t just plan something and then not show up for it,” his boss said.
The court said these facts “set Whigham’s participation apart from that of all other employees … [Whigham’s boss] knew he did not have to expressly direct Whigham to attend the game because Whigham would already feel an obligation to be there.”
In addition, Whigham’s professional performance evaluations clearly reflect the kickball game was considered something important.
The South Carolina Supreme Court said, even though it may not have been within Whigham’s job description, a specific duty doesn’t have to be designated to an employee to be compensable.
So the court reversed the earlier rulings and said Whigham should receive workers’ comp benefits.
In a dissent, one justice said this ruling set up a framework that favored supervisors over other employees. The implication: If this had been any other employee than Whigham, workers’ comp wouldn’t have applied.
The best advice legal practitioners have for companies that want to avoid situations like this one: Make it clear that participation in an event, whether it’s kickball or something else that requires physical activity, is completely voluntary for employees. Some legal authorities have gone so far as to suggest companies ask employees to sign release forms that relieve the company from liability.
But until we see a case litigated that involves a written release, it’s best to realize that there are no guarantees when it comes to these types of claims. They vary from state to state and from case to case.
What do you think about the court’s decision? Let us know in the comments.
(Stephen Whigham v. Jackson Dawson Communications, SC Supreme Court, No. 2012-212258, 8/27/14)
