DANIEL R. VAN BUREN, Employee, v. CITY OF WILLMAR, SELF-INSURED/BERKLEY RISK ADM’RS. CO., Employer/Appellant, and BLUE CROSS/BLUE SHIELD OF MINN., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 30, 2010
ARISING OUT OF & IN THE COURSE OF - PERSONAL COMFORT; ARISING OUT OF & IN THE COURSE OF - HORSEPLAY; ARISING OUT OF & IN THE COURSE OF - RECREATIONAL ACTIVITIES. The employee’s injury, which occurred when he was playing basketball on the employer’s premises while he was on his unpaid lunch break, was not in the course of his employment and is not compensable.
Determined by: Stofferahn, J., Johnson, C.J., and Rykken, J.
Compensation Judge: Jennifer Patterson
Attorneys: Luke M. Seifert and Joel M. Frye, Quinlivan & Hughes, St. Cloud, MN, for the Respondent. Thomas M. Peterson, League of Minnesota Cities, St. Paul, MN, for the Appellant.
DAVID A. STOFFERAHN, Judge
The employer appeals from the compensation judge’s determination that the employee’s injury on January 27, 2003, was in the course of his employment. We reverse.
Daniel Van Buren is a long-time employee at the City of Willmar, working in the Public Works Department. His duties include snow removal, tree trimming, grass mowing, and maintenance of city parks. Public Works employees generally work between 7:00 a.m. and 3:30 p.m. but do not punch a time clock. Mr. Van Buren began his workday at the Public Works garage where he received his work assignments. Mr. Van Buren returned to the Public Works garage where he had lunch with other Public Works employees. The lunch break is unpaid and is to last for half an hour.
The employees had access to a lunch room in an equipment garage building. They were not required to use the lunch room or to remain on the employer’s premises during their unpaid lunch breaks, which took place between 12:00 and 12:30 p.m. Approximately thirty years ago, a Public Works supervisor installed a basketball hoop in the garage from materials he had at home. Thereafter, employees have commonly shot baskets or played informal basketball games during the lunch break. There was no schedule, no organized teams, and basketball was not played every day or by all employees. The games lasted from ten to twenty minutes. The city did not sponsor or organize the activity and the basketball was not a part of any city wellness program.
On January 27, 2003, Mr. Van Buren sustained a personal injury while playing basketball in the garage with coworkers while on his lunch break. Mr. Van Buren claimed workers’ compensation benefits for his injury. The city denied liability for the injury, asserting that the injury did not occur during the course of his employment.
Mr. Van Buren’s claim was heard by Compensation Judge Jennifer Patterson on August 18, 2009. In her findings and order of October 6, 2009, the compensation judge determined that Mr. Van Buren sustained a work-related injury on January 27, 2003. The City of Willmar has appealed.
An employer is responsible for an employee’s personal injury “arising out of and in the course of employment.” Minn. Stat. § 176.021, subd. 1. The statute defines personal injury and provides that a personal injury under the statute “does not cover an employee except while engaged in, on, or about the premises where the employer’s services require the employee’s presence as a part of that service at the time of the injury and during the time of that service.” Minn. Stat. § 176.011, subd. 16. The term “arising out of” refers to a causal connection between the employment and the injury. “An injury arises out of the employment if it arises out of the nature, conditions, obligations, or incidents of the employment; in other words, out of the employment looked at in any of its aspects.” United Fire & Casualty Co. v. Maw, 510 N.W.2d 241, 244 (Minn. Ct. App. 1994). The phrase “in the course of,” on the other hand, refers to the time, place and circumstances under which the injury takes place. Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988). Both “arising out of” and “in the course of” are parts of a “single test of work-connection.” Bohlin v. St. Louis Co., 61 W.C.D. 69, 79 (W.C.C.A. 2000).
While Mr. Van Buren was on the employer’s premises when injured, he was on an unpaid lunch break and was not required to be on the premises when he took his break. He was also engaged in a voluntary recreational activity. Mr. Van Buren’s duties for the City of Willmar do not include playing basketball. He was clearly not in the course of his ordinary work duties when injured. The question is whether his personal injury possesses sufficient work-connection to justify imposing workers’ compensation liability on the City of Willmar.
The employee contends that the requisite work-connection is provided by the personal comfort doctrine. Under that doctrine, an employee who is not engaged in his or her usual work duties is nevertheless determined to be in the course of employment when the injury occurs during “acts of an employee necessary to life, comfort, or convenience while at work, although personal to him and not technically acts of service, are incidental to the services, an injury arising while in the performance of such acts is compensable.” Hill v. Terrazo Mach. and Supply Co., 279 Minn. 428, 433, 157 N.W.2d 374, 377, 24 W.C.D. 511, 517 (1968). “The cases applying the rule, however, have limited it to activities which involve only slight deviations from the work and are reasonable under the circumstances.” Williams v. Hoyt Constr. Co., 306 Minn. 59, 70, 237 N.W.2d 339, 346, 28 W.C.D. 101, 112 (1975).
This court recently applied the personal comfort doctrine where the employee fell in the employer’s parking lot as she was returning from a personal break she had taken with coworkers. Malmquist v. Matthew Peterson, D.D.S., 68 W.C.D. 216 (W.C.C.A. 2008). The doctrine was also applied where the employee was injured as he was getting a cup of coffee while working from his home office. Munson v. Willmar/Interline Brands, No. WC08-205 (W.C.C.A. Dec. 15, 2008).
We conclude that playing basketball for ten to twenty minutes during lunch is not a slight or brief deviation from work duties and is not an act which is “necessary to life, comfort or convenience while at work.” A good argument can be made that playing basketball with coworkers may enhance camaraderie and can provide a health benefit from the exercise involved. However, the same can be said for a host of possible lunch-time activities such as yoga classes or walking with coworkers. We conclude that to expand the personal comfort doctrine to cover the present case and similar cases would have the practical effect of eliminating the “course of” requirement found in the statute. This we decline to do.
The employee next points out that injuries sustained by an employee while engaged in horseplay have been found compensable in many cases. The employee argues that if such an injury is covered, there is no basis for not covering the more benign activity involved in the present case. We disagree.
The general rule is that horseplay is a deviation from employment which would exclude from coverage injuries incurred during such activity. However, cases considering horseplay have allowed recovery where the employer was aware of the horseplay and acquiesced in it. See Olson v. Short Stop Electric, 59 W.C.D. 638 (W.C.C.A. 1999).
The employer was aware of the lunchtime basketball and apparently acquiesced in the activity since no action was ever taken by the city to stop it. Basketball, however, would not be categorized as horseplay, which is a narrow category, referred to as “skylarking” in earlier cases or “goofing off” in later cases. Activity which is labeled as horseplay is activity which usually carries such obvious risk of injury that a prudent employer would be expected to prohibit the activity. An employer who knows of horseplay and allows it to continue is voluntarily expanding the course of employment to include non-work injuries which would otherwise be excluded.
In considering this case, the compensation judge did not accept the employee’s arguments but concluded that this was a case of first impression with no controlling law in Minnesota. In determining Mr. Van Buren’s injury to be compensable, the compensation judge cited to Larson’s Workers’ Compensation Law (2009) as authority. In Chapter 22 of that treatise the author states that “recreational or social activities are within the course of employment when they occur on the premises during a lunch or recreation period as a regular incident of the employment.” The compensation judge followed this statement in making her decision in this case. We disagree.
We find the treatise to be inconsistent with Minnesota law. In 1985, the legislature added subdivision 9 to Minn. Stat. § 176.021. That subdivision reads:
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 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.
The parties agree that this subdivision does not apply to the present case because the employer did not sponsor the basketball played in the garage. We find the statute provides guidance in this matter, however. If the City of Willmar had set up teams, provided jerseys, organized games, and kept scores, the resulting recreational program would be exempted from coverage by the statute. The City did none of these things - - it did far less to encourage or promote the activity. A supervisor put up a basketball hoop but otherwise the City’s involvement was to simply allow the employees to play basketball on their unpaid lunch break. Since the legislature intended that active sponsorship of recreational activity does not impose liability, we do not think it could have intended that actions far short of sponsorship would impose liability.
 Examples of horseplay can be found in the case law. See, e.g., Olson v. Short Stop Elec., 59 W.C.D. 638 (W.C.C.A. 1999) (a jumping contest from the second floor of a house under construction); State ex rel. H.S. Jackson Sash & Door Co., 140 Minn. 75, 167 N.W. 283 (1918) (throwing sash pins at other workers); Rydholm v. Forman Ford & Co., 7 W.C.D. 288 (Minn. Indus. Comm. 1932) (throwing small wads of adhesive tape at other workers); Cunning v. City of Hopkins, 258 Minn. 306, 103 N.W.2d 876 (1960) (flipping a raincoat over the windshield of a moving truck); Johnson v. El Mac Landscaping, 51 W.C.D. 75 (W.C.C.A. 1994) (hitting an underpass while distracted by goofing off on a load of hay); Sutherland v. Hanna Mining Co., slip op. (W.C.C.A. Jan. 4, 1988) (wrestling with a supervisor for possession of a high pressure hose to spray him); Hansen v. Breadeaux Pisa, Inc., slip op. (W.C.C.A. Feb. 22, 1994) (playing with dry ice in a bottle that then exploded).