ILHAM M. YUSUF, Employee/Appellant, v. HILTON HOTEL, and ACE/GALLAGHER BASSETT SERVS., INC., Employer-Insurer, and PARK NICOLLET HEALTH SERVS., and HEALTHPARTNERS, INC., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 4, 2006
ARISING OUT OF & IN THE COURSE OF - RECREATIONAL ACTIVITIES. An employee=s injury is not barred by Minn. Stat. ' 176.021, subd. 9, where there is no evidence that the alleged voluntary nature of the activity was ever communicated to the employee.
Reversed and remanded.
Determined by: Stofferahn, J., Johnson, C.J., and Rykken, J.
Compensation Judge: James F. Cannon
Attorneys: Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Appellant. Sarah Groskreutz, Johnson & Condon, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s determination that her injury did not arise out of and in the course of employment because it occurred while she was attending a voluntary recreational activity. We reverse and remand for further consideration.
On September 7, 2004, Ilham Yusuf, the employee, worked for the employer, Hilton Hotels, in Minneapolis as a housekeeper. The employee injured her right knee while she was a spectator at an employer-sponsored event, AHousekeeping Olympics.@ The employee=s claim for various benefits arising out of this injury was heard by Compensation Judge James Cannon on March 1 and March 6, 2006.
A number of issues were identified at the hearing. The employer and insurer alleged that the employee=s claimed injury did not arise out of and in the course of employment because it was precluded by Minn. Stat. ' 176.021, subd. 9, as occurring during a voluntary recreational activity. The parties also disputed medical causation for the employee=s right knee condition. The employer and insurer claimed that the employee was not entitled to temporary total disability benefits because she had allegedly been terminated for misconduct. Permanent partial disability and rehabilitation entitlement were also in dispute.
In his Findings and Order of May 31, 2006, the compensation judge concluded that the employee=s injury of September 7, 2004, was barred by Minn. Stat. ' 176.021, subd. 9, because the injury occurred during a voluntary recreational activity. Since this determination was dispositive, the compensation judge made no findings on the other issues presented by the parties at hearing.
Ilham Yusuf was 31 years old at the time of the hearing. She was born and raised in Somalia and came to the United States about seven years before the hearing. She completed the equivalent of fifth grade in Somalia and was able to read and write Somali but was unable to read or write English. The employee testified that she had difficulty in understanding English and that she did not use English in communicating with friends and family.
Ms. Yusuf began working for the Minneapolis Hilton in 2001 as a housekeeper. Her duties were to clean rooms, make beds, gather items for laundry, clean bathrooms, and vacuum the room. She worked an eight-hour shift and was assigned 16 rooms to clean in her shift. The employee was required to punch a time clock when she started work, when she went to and from lunch, and when she finished her shift. The employee typically worked from 8:00 a.m. to 4:30 p.m.
The employee was injured at an event the parties referred to as the AHousekeeping Olympics.@ Teams of housekeepers from the Minneapolis Hilton and associated hotels competed against each other in events such as making beds, hanging clothes, and vacuuming through a course marked by cones. Those employees not on a team were spectators and Ms. Yusuf was given a placard from a supervisor to help cheer on her team. The event took place at the hotel between 3:00 p.m. and 4:30 p.m., during the work shift, and the employees were Aon the clock@ during the event. Housekeepers were assigned 13 rooms to clean that day, instead of the usual 16 rooms.
The employee testified that she understood she was required to attend this event. This understanding was based primarily on conversation she had with a supervisor, Alla. According to the employee, Alla told her that she was expected to be at the event. The number of rooms to be cleaned had been reduced and instead of cleaning the remaining three rooms, she was expected to participate in the event. Ms. Yusuf testified that she was never told that she did not have to participate in the event and could choose to punch out and go home without being paid. The employee testified that she was concerned about attending the event because she had previously been disciplined for failing to follow a supervisor=s instructions.
Five past or present management employees of Hilton testified on behalf of the employer: the Human Resources training manager, the floor leader for housekeeping, the assistant director of housekeeping, the director of housekeeping, and the director of Human Resources. All of these witnesses testified that the event was voluntary and that Ms. Yusuf could have chosen to punch out and go home. None of these witnesses had any contact with Ms. Yusuf about her attendance at the event.
Minn. Stat. ' 176.021, subd. 9, states:
Subd. 9. 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 event 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.
The statute creates two steps in order for this section to apply. First, the activity or event must be a voluntary recreational program. Second, it must be shown that the employee was not ordered or assigned to participate in the program.
In considering whether an activity is a voluntary recreational program, the statute identifies examples of health promotion programs, athletic events, parties and picnics. This list is not meant to be exhaustive but it does provide some guidance as to the type of activities covered by this section of the statute. In previous decisions, this court has concluded an appreciation dinner for spouses of volunteer firefighters, Rooney v. City of Belgrade, 42 W.C.D. 1158 (W.C.C.A. 1990); a softball game while a firefighter is on paid standby duty, Sager v. City of Roseville, 52 W.C.D. 281 (W.C.C.A. 1994); and a AFun Day@ at a community recreational center, Ellingson v. Brady Corp., WC05-116 (W.C.C.A. June 28, 2005), were all examples of recreational activities.
We question whether the employer=s Housekeeping Olympics is a recreational activity under the statute. The activities at this event were those work activities expected of housekeepers in a normal work day. There is a difference between work and recreation and generally speaking most people would not consider engaging in work activity or watching others engage in work activity to be recreational. We are also concerned that this event was on the employer=s premises during work hours while employees were punched in and that if employees did not go to the event, they would not be paid. We do not reach a final opinion on this point, given our conclusion that the event was not voluntary. We wish to note however that simply labeling a work event as an AOlympics@ or as a AFun Day@ does not automatically transform work into recreation and thereby bring that event under Minn. Stat. ' 176.021, subd. 9.
The employee testified she was told by a supervisor that her attendance in the event on September 7, 2004, was required. The supervisor was not called as a witness to contradict this evidence and there=s no evidence that the conversation between the employee and the supervisor did not take place. While the employer=s witnesses testified that the attendance at the event was voluntary, there was no evidence that this was ever communicated to the employee. The parties and the compensation judge cited to our decision in Ellingson but in that case the employer clearly advised the employee before the event that the event was not mandatory and that the employee had options other than attending Afun day.@ Communication was evidenced by an e-mail to all employees. No such communication exists here and there was no testimony that the employee was ever told her attendance was voluntary. The statute requires, at a minimum, that the employee be made aware that participation is voluntary. The only evidence of any communication to the employee about her attendance at the event was the employee=s conversation with Alla.
The transcript from the hearing covers 523 pages. A significant part of that record consists of testimony and argument as to the extent of the employee=s ability to speak and understand English. We fail to see the relevance of this issue. Contrary to the finding made by the compensation judge, the employee did not testify that she could speak Ano or little@ English. She testified that she had Adifficulty in understanding English@ (T. 32) and there is no evidence contradicting this testimony. A conclusion that the employee was not credible based on testimony she did not provide is inappropriate. Finding 2 is vacated.
We reverse the compensation judge=s decision that the employee=s claim is barred by Minn. Stat. ' 176.021, subd. 9, and we remand to the compensation judge for consideration of the remaining issues in this matter.