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Most employers have some recreational or social activities throughout the year, and unfortunately, injuries tend to occur at these events. There used to be so many of these kinds of claims that the New Jersey Legislature enacted new legislation in 1980 under N.J.S.A. 34:15-7, which provides that recreational and social activities do not arise from the employment “unless such recreational or social activities are a regular incident of employment and produce a benefit to the employer beyond improvement in employee health and morale.”
So under this rule a volunteer firefighter who was injured playing softball for the fire department team was not covered for workers’ compensation because his participation in the softball game was not required and was purely for morale purposes. Dowson v. Borough of Lodi, 200 N.J. Super. 116 (App. Div. 1985), certif. denied. 103 N.J. 455 (1986). Similarly, a supervisor asked one of his employees if he would like to arm wrestle the supervisor, and the two men arm wrestled during work hours with injuries resulting to the employee. The court also found this case not compensable as a recreational claim involving only morale. Quinones v. P.C. Richard & Son, 310N.J. Super. 63 (App. Div. 1998), certif. denied. 156 N.J. 384 (1998).
But what about the situation where a teacher engages in a volleyball game with students and parents on school premises and the event has been advertised by the school, asking for volunteers to participate in the event? These kinds of activities occur at many schools in New Jersey and in other states on a regular basis. Often the event is an annual one, which tends to satisfy the clause above beinga regular incident of employment. There are often notices about the event throughout the school and teachers are encouraged to participate. Suppose a teacher is later injured and brings a workers’ compensation claim, seeking medical treatment, temporary disability benefits and an award of partial permanent disability? The question is this: does this activity involve a benefit to the employer beyond improvement in health and morale or is it just about morale?
There are no published decisions on this particular issue but these types of injuries happen frequently. The main reason for the absence of published decisions is that most practitioners and judges believe these kinds of injuries involving teachers in parent/faculty/student events are compensable. So the cases tend to be accepted from the outset. The advertised parent/faculty/student volleyball game on school premises is not just about promoting health and morale. That is definitely part of it, but counsel for the injured teacher will successfully argue that the activity is really about improving the relationship among parents, students and teachers, with the ultimate goal being a better learning environment. The goal of education and student enrichment goes well beyond merely promoting health and morale. If the activity promotes a benefit beyond improving health and morale, the activity is compensable. Raising funds for the employer would be another example of something that is beyond improving health and morale. p
Contrast this with a situation where a teacher steps into the gym to shoot a few baskets on the way to his or her next class with a student he knows and then falls, fracturing an arm. This sort of activity is spontaneous, unplanned, and more about morale than anything else. Judges would likely find this sort of injury not compensable.
In 2004 an important decision came down from the New Jersey Supreme Court which added a new dimension to the equation. That case isLozano v. Frank Deluca Const., 178 N.J. 513 (2004). Mr. Lozano was seriously injured driving a go-cart on the property of a customer where the company was doing masonry work. Lozano was a skilled mason who was picked up by his boss in the morning and taken to the homeowner’s large property where they worked all day. After work the boss asked permission from the homeowner to drive one of the go-carts on his private track. The homeowner and the boss drove their go-carts around the track. Then the boss asked the claimant if he wanted to take a spin. Mr. Lozano reminded his boss that he had no driver’s license and did not know how to drive, so he refused. The boss then told Lozano to get in the go-cart and drive. Lozano did just that and proceeded to drive the go-cart into a parked truck, suffering serious injuries. At trial, Lozano said he felt that he had to follow orders from his boss, but he did not want to drive the go-cart in the first place.
The Supreme Court announced a sensible rule that when an employer compels activity that would ordinarily be barred as a social or recreational one, that activity becomes compensable. TheLozano rule has been followed by courts in many other decisions. What it means for an employer is this: if the employer pressures employees to attend holiday parties or participate in otherwise barred recreational activities, any injuries flowing from those activities will be found to be compensable in workers’ compensation based on the element of compulsion. Hence the adage: if you have to do it, what you are doing is likely compensable under workers’ compensation.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at email@example.com.