TODD PASKETT, Employee/Appellant, v. IMATION CORP. and TRAVELERS GROUP, Employer-Insurer, and HEALTHEAST PHYSICIAN SERVS., BLUE CROSS/BLUE SHIELD OF MINN. & BLUE PLUS, WOODBURY AMBULATORY SURGERY CTR. and SUMMIT ORTHOPEDICS, LTD., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 3, 2013
ARISING OUT OF & IN THE COURSE OF - RECREATIONAL ACTIVITIES. The compensation judge properly concluded that the employee’s injury during a charitable fund-raising flag football game sponsored by the employer qualified for the exclusion for injuries occurring during voluntary employer-sponsored recreational activities pursuant to Minn. Stat. § 176.021, subd. 9.
Determined by: Wilson, J., Milun, C.J., and Johnson, J.
Compensation Judge: William J. Marshall
Attorneys: Roger D. Poehls, Jr., Robert Wilson & Assocs., Minneapolis, MN, for the Appellant. Barbara L. Heck, John G. Ness & Assocs., St. Paul, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s decision that the employee’s injury occurred while he was participating in a voluntary recreational activity within the meaning of Minn. Stat. § 176.021, subd. 9. We affirm.
The employee is employed as a claims analyst by Imation Corporation [the employer], a technology company. Every September, the employer runs a week long campaign to benefit the United Way and several other charities in the community. Employees may make contributions to the United Way or the other charities through pledge forms submitted online. The employer also organizes a series of events to take place throughout the week of the campaign. Employees pay to participate, or sometimes to observe the events, with all the fees going to United Way. In 2011, scheduled events included an “Imation’s Got Talent” show, an ice cream and bake sale, a flag football game, a silent auction, ping pong, foosball, and beanbag toss tournaments, “Bowling for Dollars,” a Texas Hold’em tournament, a raffle, and a BBQ lunch. Almost all of these events and activities were held on the employer’s campus, and only employees of the employer were allowed to participate. Most events took place during the work day, and employees who chose to participate were paid as usual and were not required to take time off. Employees were not required to pledge money or to take part in the events, but participation was encouraged. The employer kept track of charitable contributions on a “thermometer” in its lobby. An overall giving goal was set, and the employer evidently agreed to sponsor a happy hour to reward employees if the goal was met.
The employee had played in the flag football game for several years but had decided against it in 2011 until urged to play by a sales manager named Johnnie Ulrich. The employer striped the field and provided referees. The employee paid the $20.00 fee to play in the game that year; spectators paid $5. During the course of the game, held on September 16, 2011, the employee injured his Achilles tendon. He subsequently required surgery and missed two weeks of work.
The employee filed a claim petition alleging entitlement to benefits as a result of his September 16, 2011, injury, and the matter ultimately came on for hearing before a compensation judge on June 22, 2012. In a decision issued on August 6, 2012, the compensation judge concluded that, pursuant to Minn. Stat. § 176.021, subd. 9, the employee’s injury was not compensable. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1 (2012). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
“[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).
Minn. Stat. § 176.021, subd. 9, provides as follows:
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 compensation judge in the present case concluded that the employee’s participation in the flag football game was voluntary and that the employee’s injury “falls under the recreational activities and employer sponsored social events exception” in the statute. Therefore, the judge determined, the employee’s injury did not arise out of and in the course of his employment.
On appeal, the employee contends initially that the compensation judge erred in concluding that the employee’s participation in the football game was voluntary. In making this argument, the employee relies on Ellingson v. Brady Corp., 66 W.C.D. 27 (W.C.C.A. 2005), as support for his contention that, because he was not informed that he could take unpaid leave, rather than attend the events, his participation was not in fact voluntary. The employee’s reliance on Ellingson is misplaced. It is true that the employee in Ellingson had several alternatives to participation in the employer-sponsored Employee Fun Day: he could have remained at work, taken a vacation day, or taken the day off without pay. And these options were indeed cited to support the conclusion that the employee’s participation was voluntary. Ellingson cannot, however, be read to mandate that all these specific alternatives be available in every case. In the present case, the employee acknowledged repeatedly at hearing that he was not required or coerced by the employer to take part in the flag football game and that he could have stayed at work or taken paid leave instead. As such, the record as a whole easily supports the judge’s finding as to the voluntary nature of the employee’s participation in the activity leading to his injury.
The employee also contends that he was not participating in the kind of event contemplated by Minn. Stat. § 176.021, subd. 9, because the purpose of the event, and all the events that week, was to raise money for the United Way and other charities. Furthermore, according to the employee, it was the employer, not the employee, that benefited from the contributions through enhancement of its reputation as a good corporate citizen. The employee also contends that the employer had a more tangible interest in securing contributions to the United Way, because one of the employer’s directors was purportedly seeking a spot on the United Way board. We are not persuaded by these arguments.
Certainly a primary purpose of the week-long charitable campaign was to raise money for the United Way and other designated charities, but that fact does not change the essential nature of the events and activities in question. The employer gave workers the opportunity to engage in what can only be classified as recreational events in exchange for nominal charitable contributions from the workers choosing to participate. The recreational nature of the events cannot be seriously disputed, and the fund-raising nature of the flag football game does not transform what is clearly an athletic event into a work activity. In fact it is apparent that the recreational nature of the planned activities was not accidental but rather intentional: the employer hoped to solicit more contributions by offering workers the chance to have fun, with pay, on company time.
Virtually every category of activity specified in Minn. Stat. § 176.021, subd. 9, arguably benefits an employer in some way: wellness events produce healthier and thereby more productive workers and decrease insurance costs; parties and picnics may improve employee morale and increase feelings of camaraderie and employee job satisfaction. The fact that charitable fundraising may provide some benefit by enhancing an employer’s corporate reputation in the community provides no basis to deprive the employer of the exemption specified by Minn. Stat. §176.021, subd. 9.
All of the events scheduled during the employer’s charitable giving campaign would qualify as recreational events as that term is generally understood. The flag football game in which the employee was injured also clearly qualified as an athletic event. The employee’s participation in the game was voluntary. The judge’s denial of benefits pursuant to the exclusion contained in Minn. Stat. § 176.021, subd 9, is affirmed.
 The employee also cites a number of cases decided prior to enactment of Minn. Stat. § 176.021, subd. 9. However, prior to enactment of the statute, injuries occurring during employer-sponsored parties and athletic events were generally compensable. See, e.g., McDonald v. St. Paul Fire & Marine, 288 Minn. 452, 183 N.W.2d 276, 25 W.C.D. 280 (1970); LeBar v. Ewald Bros. Dairy, 217 Minn. 16, 13 N.W.2d 729, 13 W.C.D. 126 (1944). As the employer and insurer point out, the statute was undoubtedly intended to change the law in this area.