KEITH ELLINGSON, Employee, v. BRADY CORP., SELF-INSURED, adm=d by GALLAGHER BASSETT SERVS., Employer/Appellant, and BLUE CROSS/BLUE SHIELD OF MINN., UNUM LIFE INS. OF AM., and FAIRVIEW HEALTH SERVS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 28, 2005
ARISING OUT OF & IN THE COURSE OF - RECREATIONAL ACTIVITIES. Where the employee was not required to attend the program and was free to remain at work, take a day of vacation or take a day off without pay, the employee=s choice to attend the employer-sponsored recreational program was voluntary, and the injury was not compensable pursuant to Minn. Stat. ' 176.021, subd. 9.
Determined by: Johnson, C.J., Rykken, J., and Pederson, J.
Compensation Judge: Gary M. Hall
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Respondent. Michael D. Miller, and Nancy E. Lamo, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The Brady Corporation appeals the compensation judge=s finding that the employee=s attendance at the employer=s AFun Day@ program was not voluntary under Minn. Stat. ' 176.021, subd. 9. We reverse.
Keith Ellingson, the employee, has worked for the Brady Corporation, the employer, for ten years. On October 8, 2003, the employee sustained a rupture of his Achilles tendon while playing basketball at an employer-sponsored Fun Day at the Maple Grove Community Center. On that date, the employer was self-insured for workers= compensation liability.
At the direction of Ms. Caryn Addante, the Human Resources manager for the employer=s Brooklyn Park plant, the following e-mail was provided to the employees at the employer=s Brooklyn Park site:
Subject: A couple reminders about tomorrow=s Fun Day at Maple Grove Community Center
Don=t forget to wear or bring shorts or comfortable clothes tomorrow for playing volleyball or basketball if you=re interested!
The day is planned to recognize the Brady Brooklyn Park Team for all its hard work and efforts in FY-03. Things will get started by 9:00 and we=ll be done by 3:30 (or a little bit earlier). While we hope that everyone is planning to stay and have a good time with their Teammates right to the end, we realize a few employees may find it necessary to come back to work. That is understandable - - come for as much of the day as possible. Anyone not required to come back to work is expected to stay on site at the Community Center until the prizes have been awarded. Employees not planning to stay, need to arrange for vacation time or unpaid time off with their supervisors before leaving the Center.
Supervisors & Managers: Please be sure to share this information with your Team. (Pet. Exh. A.)
Ms. Addante testified that every year the employer, at the end of the fiscal year, sponsored some type of activity or celebration. The purpose was to bring all the employees together to thank them for their efforts during the prior year, to allow the employees to socialize and to build team work. Ms. Addante stated in the past, some employees viewed the celebration as an opportunity to have a free day off and not go to work or to the event. The purpose of the e-mail, Ms. Addante stated, was to advise the employees they could attend the event or stay at work.
The October 8, 2003, event commenced at 9:00 a.m. with a business meeting. The site general manager spoke of the business successes over the past year, following which recognition and service awards were given. Next, a hypnotist hired by the employer performed for the employees, after which they had lunch. After lunch, the employer scheduled a couple of hours for the employees to enjoy themselves at the recreation center. The center had available volleyball, basketball, video games, board games and bingo. So long as the employees remained at the facility, they were free to do whatever they wanted during this time. The employee injured his Achilles tendon while playing basketball.
Ms. Addante testified the employer viewed this day as a benefit to the employees, something fun for them to participate in. The employees were not obligated or required to attend the Fun Day but if they did not attend the employees had to be at work, take a vacation day or take a day off without pay. Ms. Addante stated that the employees might remain at the plant if they had Apressing work.@ She stated some employees did not particularly care to participate in team activities so they would come for the business meeting, have lunch and then go back to work. Ms. Addante stated, A[w]e=ve never required employees to attend business meetings. We have them quarterly. We strongly encourage them. But it is not mandatory.@ (T. 27.)
Following a hearing, a compensation judge found the employee=s participation in the employer=s Fun Day was not voluntary under Minn. Stat. ' 176.021, subd. 9, and concluded the employee=s injury arose out of and in the course of his employment. The employer appeals.
Minn. Stat. ' 176.021, subd. 9, provides:
Employer responsibility for wellness programs. Injuries incurred while participating in voluntary recreational programs sponsored by the employer, including health promotion programs, athletic events, parties, and picnics, do not arise out of and in the course of the employment even though the employer pays some or all of the cost of the program. This exclusion does not apply in the event that the injured employee was ordered or assigned by the employer to participate in the program.
In Hansen v. Wyatt Ready Mix, 44 W.C.D. 276, 278 (1990), this court stated:
The statute=s language, taken as a whole, evinces an intention to exclude from compensation injuries sustained during voluntary participation in programs sponsored by employers to promote employee health and fitness; psychological or social well being; and good will between an employer and their employees. Programs intended to serve such purposes are those encompassed in the statute=s general category of Arecreational programs.@
The October 8, 2003, Fun Day sponsored by the employer was a recreational program within the meaning of Minn. Stat. ' 176.021, subd. 9. The sole issue presented here was whether the employee=s participation in the recreational program was voluntary. The employer contends it was. They point out the employee had several options: go to the Fun Day, stay at work, take a vacation day, or take a day off without pay. Because the employee had options, the employer contends his participation was voluntary, and the appellant asks this court to reverse the compensation judge=s decision.
The employee, citing Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984), first contends the compensation judge=s decision is supported by substantial evidence and must, therefore, be affirmed by this court. The facts in this case are essentially undisputed. A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers' Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993). Accordingly, the compensation judge=s decision is not reviewed under the Hengemuhle standard.
The employee next contends his injury arose out of his employment because, although not required, participation in the Fun Day was encouraged by the employer and hence within the scope of employment. In support of this argument, the employee cites numerous cases including Carey v. Stadther, 300 Minn. 88, 219 N.W.2d 76, 27 W.C.D. 365 (1974); Sandmeyer v. City of Bemidji, 281 Minn. 217, 161 N.W.2d 318, 24 W.C.D. 622 (1968); Koktavy v. City of New Prague, 246 Minn. 550, 75 N.W.2d 774, 19 W.C.D. 298 (1956).
The principle enunciated in the Carey, Sandmeyer, and Koktavy cases is that certain acts encouraged, but not required, by the employer are within the scope of employment. That principle is not applicable here. Minn. Stat. ' 176.021, subd. 9, was enacted subsequent to those cases and applies to any voluntary recreational program sponsored by an employer. The October 8, 2003, Fun Day was such a program so the statute governs.
Finally the employee contends that his participation in the recreational program was not voluntary because he was being paid for his presence. Although the employee was paid whether he was at work or at the recreational program, that fact is not determinative. Had the employer=s recreational program been held on a Saturday or Sunday, a day for which employees were not paid, the issue would be the same: was the employee=s participation in the Fun Day voluntary? In Sager v. City of Roseville, 52 W.C.D. 281 (W.C.C.A. 1994), summarily aff=d (Minn. March 16, 1995), a firefighter was injured while voluntarily playing softball on the Roseville Fire Fighters softball team while on paid duty watch for the employer. The court stated that Aemployees are not excluded from the exemption of Minn. Stat. ' 176.021, subd. 9, simply by virtue of the fact that they are being paid a wage by the employer at the time of their injuries and/or are on call to perform their regular work.@
We conclude the employee=s participation in the employer-sponsored recreational program was voluntary. The employee was not required to attend the recreational program and was free to remain at work, take a day of vacation, or take a day off without pay. Since the employee had options, his choice to attend the recreational program was voluntary. Accordingly, the employee=s injury did not arise out of and in the course of his employment. The decision of the compensation judge is reversed.