ROD SHILKROT, Employee/Appellant, v. AAA MINNEAPOLIS and CHUBB & SONS GROUP, Employer-Insurer, and NORTH MEM=L HEALTH CARE, MEDICA HEALTH PLAN, HEALTH PARTNERS, and FAIRVIEW HEALTH SERVS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 1, 2008
No. WC08-101
HEADNOTES
ARISING OUT OF & IN THE COURSE OF - DUAL PURPOSE TRIP; ARISING OUT OF & IN THE COURSE OF - RECREATIONAL ACTIVITIES. Where the employee was under no obligation to attend the lunch and golf outing with two coemployees and the employer=s insurance agent, where the outing was initiated and paid for not by the employer but by the agent as a thank-you gesture and an attempt to foster continuing business, where any business-related discussions at lunch or on the golf course were incidental and unplanned, the compensation judge=s conclusion that the employee=s ankle and leg injury on the golf course did not arise out of and in the course of employment was not clearly erroneous and unsupported by substantial evidence.
Affirmed.
Determined by: Pederson, J., Johnson, C.J., and Rykken, J.
Compensation Judge: Harold W. Schultz, II
Attorneys: Michael L. Lander, Otten & Assocs., Minneapolis, MN, for the Appellant. Richard C. Nelson and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.
OPINION
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s determination that he did not sustain a left ankle and leg injury arising out of and in the course of his employment on September 13, 2006. We affirm.
BACKGROUND
Rod Shilkrot [the employee] began working for AAA Minneapolis [the employer] in January of 1985. In 1996, he became the employer=s Vice President of Marketing and Retail Sales, a position he continued to hold at the time of trial. He is one of six vice presidents on staff at the employer, where his duties include management of corporate marketing, internet marketing, corporate communication, internet publishing, and retail sales. As a salaried employee, he is responsible for establishing his own schedule and is not required to document his time and activity as a condition to receiving his paycheck. The employer is a not-for-profit corporation in the business of advancing the safety of its members and the motoring public.
In the course of its operation, the employer works with a number of partners and vendors. Partners provide products and services not only to the employer as a customer but also to the employer=s members as well. Vendors deal only with the employer. One of the employer=s vendors is Moores Insurance Agency [Moores], of which agency the employer has been a client for more than ten years. Moores advises the employer regarding its risk insurance needs and assists the employer in procuring the necessary coverages.
During the period of Moores= business relationship with the employer, Mark Moores, the owner of the insurance agency, has each year invited some of the employer=s senior staff for an annual lunch and round of golf at the White Bear Yacht Club. This event usually takes place in August or September, and all expenses are paid for by Moores. Mr. Moores personally attends the event, along with three senior staff from the employer, thus completing a foursome for golf. In 2006, Mr. Moores extended the invitation to his main contact at the employer, Vice President of Finance Tom Hyland. Mr. Hyland in turn invited the employee and Vice President of Insurance Brian Miller. All three noted their intended absence from the office the afternoon of September 13, 2006, on a weekly schedule prepared for the benefit of Steven Frank, the employer=s CEO.
The employee and Mr. Miller arrived at the White Bear Yacht Club before Mr. Hyland, and the two of them engaged in general business and social talk with Mr. Moores. Mr. Hyland arrived just as lunch was being served, and the conversation continued along business and social lines. No work documents were exchanged, and there was no specific agenda for the afternoon. After lunch, the foursome proceeded to the golf course, where, on the third hole, the employee sustained an injury to his left ankle and leg.
The employee filed a claim petition that came on for hearing on November 2, 2007. The nature and extent of the employee=s injury was essentially undisputed. The employee had missed about ten days from work, and the parties stipulated that medical treatment rendered was reasonable and necessary in the attempt to cure and relieve him from the effects of the injury. The sole issue presented to the judge was whether the employee=s injury on September 13, 2006, arose out of and in the course of his employment with the employer. Evidence at trial included testimony from the employee and from Mr. Hyland, Mr. Miller, and Mr. Frank. The employee testified that he attended the golf outing only because of his employer=s business relationship with Moores and his status as a senior staff member at the employer. He testified that he did not take personal time off to attend the event because he viewed it as Aa kind of business meeting.@ He testified also that he did not have a social relationship of any kind with Mr. Moores and that he did not socialize outside of the office with either Mr. Hyland or Mr. Miller. The employee, Mr. Hyland, and Mr. Miller all agreed, however, that this was not an employer-sponsored event and that attendance was entirely voluntary. Mr. Hyland testified that decisions regarding the employer=s risk insurance purchases are made earlier in the year and are not based on discussions at the golf outing. While he believed that probably more than half of the topics discussed at the event were related to business and that to some degree the event had a business purpose, he viewed the event as primarily a thank you gesture by Moores for the employer=s business. Mr. Frank testified that the employee is not responsible for the purchase of the employer=s risk insurance, and does not have any business dealings with Moores. Although he acknowledged that the three employees would not have been playing golf with Mr. Moores in the absence of the employer=s relationship with Moores, Mr. Frank viewed the golf outing not as a business-related function but rather Aas some folks having a nice beautiful afternoon at the White Bear Yacht Club playing golf.@
In a findings and order issued December 20, 2007, the compensation judge found that the luncheon and round of golf on September 13, 2006, was a voluntary social event intended, at least in part, as a gesture of appreciation by Moores to a client. The judge concluded that the connection between the employee=s participation in the golf outing and his employment was too incidental and remote to be construed as having arisen out of and in the course of his employment. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (2008). Substantial evidence supports the findings if, in the context of the entire record, Athey 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, Aunless 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).
DECISION
Under Minnesota workers= compensation law, a Apersonal injury@ is an injury Aarising out of and in the course of employment@ while an employee is Aengaged in, on, or about the premises where the employee=s services require the employee=s presence as a part of such service at the time of the injury and during the hours of such service.@ Minn. Stat. ' 176.011, subd. 16. Thus, A[a] compensable injury must arise not only within the time and space limits of the employment, but also in the course of an activity related to the employment.@ 2 A. Larson and L. K. Larson, Larson=s Workers= Compensation Law, ' 20 (2008). The requisite causal connection Aexists if the employment, by reason of its nature, obligations or incidents may reasonably be found to be the source of the injury-producing hazard.@ Nelson v. City of St. Paul, 429 Minn. 53, 55, 81 N.W.2d 272, 275, 19 W.C.D. 120, 123 (1957).
In the memorandum accompanying his findings and order, the compensation judge discussed the employee=s burden of establishing the necessary work connection between his injuries and his employment activities. The judge concluded that A[t]he preponderance of the evidence is that the injury of September 13, 2006, occurred during a voluntary social event. The employee was under no obligation to attend the outing and there would have been no repercussions had he chosen to not do so.@ The judge went on to state that he interpreted the invitation by Mr. Moores to the senior staff at the employer to be a gesture of gratitude and an attempt to foster a continuation of business. He viewed the outing as an opportunity by Moores both to reward his customers and to further a business relationship. Further, the judge believed there was Anothing more than a theoretical argument that the employer benefited because there was conversation about AAA during the lunch and probably during the round of golf itself.@ Quoting this court=s holding in Griep v. Hardware Indus., the judge concluded that the business value to the employer of this voluntary social event Awas merely incidental to a predominantly recreational [purpose]@ and that Athe employee=s claim of a connection to the course and scope of his employment is too remote.@ Griep v. Hardware Indus., 53 W.C.D. 358, 361 and 363 (W.C.C.A. 1995).
On appeal, the employee argues that the judge=s determination that the employee=s injury did not arise out of and in the course of his employment is unsupported by substantial evidence in view of the entire record as submitted. The employee contends that neither had the outing a Apredominantly recreational purpose@ nor were conversations relevant to the employer=s operations merely incidental to or remote from the employer=s interests. There is no dispute, he argues, that his presence at the golf course was solely due to his employment with the employer and his position as a member of its senior staff. As a vice president, he argues, he had the discretion to establish and cultivate business relationships on behalf of the employer, and attendance at outings such as the one sponsored by Moores helped strengthen and maintain such business relationships. Because he had no personal or social relationship with Moores outside of his employment, because his position allowed him the discretion to determine how to best advance his employer=s interests, and because the outing on September 13, 2006, was undertaken in good faith to advance those interests, the judge=s denial of benefits must be reversed. We are not persuaded.
The determination of whether an employee=s injury arose out of and in the course and scope of his employment in the context of recreational and social activities requires a balancing of a variety of factors, including whether the activity takes place on or off the employer=s premises and during or not during working hours, the degree of employer initiative and control of the activity, the amount of employer contribution of money or equipment, and the quantity and type of employer benefit. See McDonald v. St. Paul Fire & Marine Ins. Co., 288 Minn. 452, 183 N.W.2d 276, 277, 25 W.C.D. 280, 282 (1970), citing 1 Larson, Workmen=s Compensation Law, ' 22.24. Each case must be determined upon its own particular facts and does not lend itself to a precise formula.
In the present case, the judge acknowledged that the employee would not have been at the White Bear Yacht Club for golf on September 13, 2006, had he not been one of the employer=s senior staff members. That being said, however, the judge concluded that the benefit to the employer from the employee=s participation in the outing was too incidental and remote for the outing to be construed as an employment-related activity and for the employee=s injury therefore to be compensable. In support of his conclusion, the judge found that the activity at issue in this case was neither initiated nor sponsored by the employer, that the entire event was organized and paid for by Moores as a thank you gesture and as an attempt to foster a continuing business relationship. The employee agreed that he was under no obligation to attend the outing and that there would have been no repercussions had he chosen to not do so. The judge had the opportunity to listen to the testimony of the witnesses, and he concluded that any business-related discussions at lunch and on the golf course were essentially on the same level as any other topic that was discussed that day. In referencing this court=s holding in the Griep case, the judge focused appropriately on the purpose of the event, its business value to the employer, and whether that value was merely incidental to the employer=s interest. While the Griep case may not be entirely analogous to the present case factually, we do not find the judge=s reliance on its holding, as argued by the employee, to be misplaced.
In support of his argument, the employee cites the case of Foley v. Honeywell, in which a deceased individual was held to have been in the course and scope of employment when she was murdered on a Sunday in a parking ramp used by employees of her employer, because Aher presence at the facility, whether for personal or business reasons, was due to her employment by Honeywell.@ Foley v. Honeywell, 488 N.W.2d 268, 272 (Minn. 1992). The Foley case is clearly distinguishable from the case here at issue, however, in that the employee in that case was, at the time of her murder, both on the premises of the parking ramp used by the employer and there primarily to do work for the employer. In the case here at issue, neither was the employee on the employer=s premises at the time of his injury nor, as the judge reasonably found, was the lunch and round of golf such an integral part of the employee=s job as to render an injury at the outing compensable.
In further support of his position, the employee also relies on the case of Meinstma v. Loram Maintenance of Way, in which an individual was held to be in the course and scope of his employment when he was injured in a birthday paddle hazing by his coemployees, in that the employee=s employment Aexposed him to a different and greater hazard of injury from assault than if he had been pursuing ordinary personal affairs.@ Meinstma v. Loram Maintenance of Way, 672 N.W.2d 224, 229, citing Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 598, 297 N.W. 19, 21 (1941). Again, the Meinstma case is easily distinguishable from the case here at issue, in that the employee in Meinstma was on the premises of the employer and was Aworking on a shift@ when he was grabbed and spanked by his coemployees. Meinstma, 672 N.W.2d at 227. The employee in the present case was not on the premises of the employer at the time of his injury, nor was he forcibly taken directly from his work and subjected to the hazard that ultimately injured him.
It is evident from the judge=s decision that he carefully considered the arising-out-of and in-the-course-of tests for work connection before concluding that the requisite connection did not exist. While the business relationship between Moores and the employer was the obvious genesis for the event, and while but for that relationship the foursome would not have been on the golf course together that day, it was not unreasonable for the judge to conclude that the connection between the golf outing and the employee=s work for the employer was too remote to invoke coverage. Because the judge=s denial of benefits is reasonably supported by substantial evidence in the record, we affirm. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.