The self-insured employer appeals from the compensation judge’s determination that the employee’s injury was not precluded from coverage under the workers’ compensation act by the operation of Minn. Stat. § 176.021, subd. 9, which excludes injuries sustained during certain voluntary recreational programs.  We affirm.

The employee began working for the employer through a temporary agency in a “temp to hire” program in July 2010.  He was hired as a regular employee by the employer on February 25, 2011, and worked for the employer in its shipping department as a material attendant, loading and unloading trucks and pallets.  The employee’s department continued to use a mix of temporary agency employees and regular employees.

Once he became a permanent company employee, the employee earned vacation leave hours which he could use to take paid time off.  Employees might also take unpaid leave.  The employer’s policy was that time off work was to be pre-approved by the employee’s shift supervisor, and that no more than 10 percent of the employees on any shift in a given department would be permitted to take approved leave, whether in the form of vacation leave or as unpaid leave.  According to the testimony of Megan Molnau, the employee’s shift supervisor, unpaid leave was typically only approved under unusual circumstances such as when a department was shut down for taking inventory or due to extreme weather events.

Employees who were not given approval for taking time off but who were nonetheless absent were recorded in an unapproved leave status.  Ms. Molnau gave as examples  of situations where an employee had a family emergency or medical treatment absence, but had insufficient accrued vacation time, or situations where more than 10 percent of the employees had already asked for approved leave.  The employee, who was attending college courses while working for the employer, had taken such unapproved leave on at least one occasion, when he could not get approved leave at the scheduled time of the final examination in one of his classes.  There was an annual limit on the number of unapproved absences an employee might incur without discipline, which included possible termination; however, short of that limit, occasional instances of such unapproved absence were not directly sanctioned unless the employee’s reason for absence was deemed insubordinate.

In 2012, the employee’s assigned shift was during the shipping department’s “weekend shift,” which was scheduled to work on Fridays, Saturdays, and Sundays from 9:30 a.m. to 10:00 p.m.  His average weekly wage as of October 7, 2012, was $786.85.

The employer was in the practice of holding annual Employee Appreciation Events for its employees, by shift and department.  An online employee handbook stated that the employer deemed attendance at such events to be “voluntary.”  In 2012, the Employee Recognition Event for the weekend shift shipping department employees was scheduled for the last three hours of their normal assigned shift on Sunday, October 7.  Employees who attended the event would be paid their normal hourly rate and were required to stay for the full duration of the event.

Ms. Molnau testified that the employees had the option of taking either approved vacation leave or approved leave without pay instead of attending the Employee Recognition Event.  She testified that her authority to approve any requests for such leave for the time of this event was subject to the usual policy that she could not approve such requests for more than 10 percent of the shift employees.  As there were 18 employees on the shift, she had direct authority to approve leave for as many as two employees.  She testified that if more than two employees had asked for leave at the time of the event, she would have referred the question to a manager in the human relations department and that there was a possibility that further employees might then have been granted approval by management.  This situation did not come up as none of the employees requested approval for time off.

The employee testified that he knew he could apply for approval to take vacation leave in lieu of attending the event, but he did not.  He testified that he was trying to save his vacation leave because his wife was pregnant and he anticipated taking some time off when the child was born.  He also testified that he was not told that approved unpaid leave was potentially available for the event.

The temporary outside contract workers who worked on the weekend shift were not officially eligible to attend the event.  However, employees were each allowed to invite one guest to attend the event, and it had become the employees’ practice to use as many of these guest invitations as necessary to invite the temporary contract workers who worked alongside them on the weekend shift.  This practice was again followed at the 2012 event, and all of the temporary contract workers attended as guests of regular employees.  These temporary contract workers were not paid for attendance at the October 7, 2012, event, nor were they able to continue at work during the event as the department was closed for the event.  In order to afford them an opportunity to recapture their lost wages, they were offered the option of treating the time lost from work as “flex time” and working three additional hours during an overtime shift that was scheduled later during the same day.  That option was not offered to the regular employees.

The Employee Recognition Event was held off the employer’s premises at the Brunswick Bowl, where the activities offered to the employees and paid for by the employer included a dinner, followed by bowling and laser tag.  The employees attending the event were not required to physically take part in the bowling or laser tag activities, but most did.  The parties stipulated that the employee sustained an injury to his right ankle while participating in the laser tag competition.  They stipulated that all medical treatment provided to the employee for his ankle injury, including surgery, was reasonable and necessary, and that the injury resulted in certain periods of lost time from work.  The parties also stipulated that the employee sustained a permanent disability ratable at 3.98 percent under the workers’ compensation disability guidelines.

The self-insured employer denied liability on the basis that the injury was precluded from coverage under the Workers’ Compensation Act pursuant Minn. Stat. § 176.021, subd. 9, which excludes coverage to injuries sustained during certain voluntary recreational programs.  The matter came on for hearing before a compensation judge of the Office of Administrative Hearings on May 30, 2014.  Following the hearing, the judge concluded that the employee’s participation in the event was not “voluntary” within the meaning of Minn. Stat. §176.021, subd. 9, and awarded workers’ compensation benefits.  The self-insured employer appeals.

In reviewing cases 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.  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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.”  Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  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 the evidence or not reasonably supported by the evidence as a whole.”  Id.

“[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).

The sole issue on appeal is whether Minn. Stat. §176.021, subd. 9, applies to exclude the employee’s injury from coverage under the Workers’ Compensation Act.  That subdivision provides that

There was no dispute in this case that the Employee Appreciation Event constituted a “recreational program” within the meaning of this provision.  In addition, the judge found that “there was no persuasive evidence that the employee was ordered or assigned by the employer to participate in the 10/7/12 recognition event.”

The remaining question was whether the employee’s participation in the Employee Recognition Event was really “voluntary” within the meaning of subdivision 9.  The judge found that it was not.  The self-insured employer appeals from this finding.  The appellant asserts that there is no significant dispute over the facts of the case, so that the issue presented is purely a question of law.

This court has previously addressed the specific question of whether an employee’s participation in an employer-sponsored recreational program was “voluntary” in Ellingson v. Brady Corp., 66 W.C.D. 27 (W.C.C.A. 2005), summarily aff’d (Minn. Jan. 10, 2006.  The facts in that case bear many similarities to those of the present case.  In that case, the program was an employer-sponsored “Fun Day” at the Maple Grove Community Center.  The employer offered employees four options; attend the Fun Day, remain at work, take a vacation day, or take a day off without pay.  Following some programmed events and lunch, employees attending the “Fun Day” were offered an opportunity to participate in a variety of elective activities including volleyball, basketball, video games, board games, and bingo.  The employee was injured while playing basketball.  The compensation judge awarded benefits.  We reversed, holding that the specific options to attendance offered by the employer provided the employee with alternatives that were sufficient to ensure that his attendance at the program was voluntary.

The compensation judge distinguished Ellingson from the present facts, noting that the employee here was not offered the option of remaining at work.  The employee was given only the options of forfeiting either three hours of his regular pay or three hours of his vacation time.  The judge considered this distinction critical.  He further noted in his memorandum that the employee had “indicated that he felt compelled to attend” and that he had credibly testified that he was saving his vacation leave because of his wife’s pregnancy and that he did not want to take leave without pay, although he would have been willing to work his normal shift had he been permitted to do so.

The employer contends that the compensation judge erred in distinguishing this case from Ellingson, citing Paskett v. Imation Corp., No. WC12-5494 (W.C.C.A. Jan 3, 2013).  In Paskett, an employee had been offered two of the three alternatives to attendance that were present in Ellingson: remain at work or take vacation leave.  The employee argued that Ellingson should be distinguished because, unlike that employee, he was not offered leave without pay as an alternative to attending.  This court declined to distinguish Ellingson under these facts, stating “Ellingson cannot be read to mandate that all these specific alternatives be available in every case.”  The employer argues that Ellingson and Paskett, taken together, stand for the proposition that an employee’s attendance at an employer-sponsored recreational event must be deemed voluntary whenever the employer has offered any alternative option to attendance.

We note, however, that in both Ellingson and Paskett, one of the options offered was that the employee might simply continue to perform his usual job, without loss of pay or benefits.  We agree with the compensation judge that this distinction is a critical one in cases where the program is scheduled during an employee’s normal working hours.  As a term of law, a “voluntary” act is one that is “. . . performed without external persuasion or compulsion.”  The American Heritage Dictionary, 1355 (2nd college ed. 1985).  Where attendance at the program is the only means available to the employee to avoid a forfeiture of pay or benefits, there is an implicit element of compulsion that renders that employee’s attendance “involuntary.”

The employer responds that it would have been impossible to offer the employee an option to remain at work as it had decided to shut down the shipping department during the employee appreciation event.  The employer further points out that it had no legal requirement to offer its employees any particular number of hours of work.  The employer’s argument is apparently meant to suggest that we should view this case as one in which the employee was not placed in a position where he would lose pay by non-attendance, in that the employee was “off the clock” as there was simply no work scheduled for the last three hours of his shift.

We agree that an employer has discretion over the scheduling and availability of work and pay, at least to the extent not otherwise constrained by state and federal labor laws or by contractual obligations.  However, the stipulated facts of this case directly contradict any suggestion that the employer had dismissed the employees from work three hours early and simply offered the employees an opportunity to receive some additional compensation while attending a voluntary program while they were otherwise off the clock due to the closing of the department.  If that were the case, the employees would have been free to simply leave and go home without attending the event and without any permission required from the employer.  Employees who are already dismissed from work would not be required to seek approval for a three-hour absence or to use vacation leave for periods during which they are off the clock.  Thus we do not reach the merely hypothetical question whether the employee’s attendance at the employee appreciation event would have been voluntary had he been in attendance while off the clock.

Although the compensation judge did not rely on this part of the record in reaching his legal conclusion, we note further that the evidence clearly indicates that the employee’s supervisor understood that the company’s 10 percent rule constrained her ability to authorize employees’ requests for absence from the employee appreciation event.  Under that rule, only 10 percent of the shift’s employees, or here, two out of 18, were normally eligible for approved leave at the same time.  We find it difficult to characterize as “voluntary” an event that 90 percent of the employees were required to attend under the employer’s leave policies normally in effect.

While some testimony suggested that there was a possibility that Ms. Molnau might have been able to obtain authorization from higher management to grant a larger number of approvals for absences during the Employee Appreciation Event, that testimony was entirely speculative.  There was no testimony from anyone having the actual authority to make that decision, nor even any testimony that demonstrated that the 10 percent rule had been waived during a prior Employee Appreciation Event.  We note, further, that the evidence indicates that while the employees were informed that the usual 10 percent rule applied, there was no evidence that they were told that there might be a possibility for the rule to be waived.  We have previously held that the statute “requires, at a minimum, that the employee be made aware that participation is voluntary.”  Yusuf v. Hilton Hotel, 67 W.C.D. 138 (W.C.C.A. 2006) at 139.  Where the employees apparently understood that no more than 10 percent of them could be excused from attendance, we think that this awareness was lacking, regardless whether the online employee handbook characterized such events as “voluntary.”

Finally, the employer argues that even if the employee’s attendance at the Employee Recognition Event itself was not voluntary, his participation in the laser tag game activity offered as part of the event was voluntary.  The employer essentially argues that, in addition to whether the employee’s overall participation in an employer-sponsored recreational program is voluntary, the analysis must also be extended to every individual activity offered or undertaken while participating in the overall program.  As support for its legal argument, the employee again cites Paskett, No. WC12-5494 (W.C.C.A. Jan 3, 2013).

In Paskett, a number of different events were scheduled as part of a week-long campaign held by the employer to benefit the United Way.  The employee, Todd Paskett, was injured during one of these events, a flag football game.  In that case, we affirmed the compensation judge’s finding that the employee’s participation in the flag football game was voluntary.  The employer argues that in considering whether the participation in the flag football game was voluntary, we had adopted an analysis that also considers the voluntariness of participation in individual activities within the sponsored recreational program.

We note, however, that in Paskett, what the employer offered was a variety of separate, independent events, which were scheduled at different times and on different days which were simply offered within the umbrella of a week-long charitable campaign.  Employees simply participated in the specific events, and in so doing did not have to participate in the entire week-long campaign.  The employee participated in one of these events, a flag football game.  Thus, in Paskett, the question of voluntary participation was simply whether the participation in the single, specific event in which the employee took part was voluntary.  In the present case, the employee participated in a single, continuous employer-sponsored recreational event which he was required to attend in its entirety, and during which various elective activities took place.  By its language, that statute requires that we determine whether the recreation program the employee attended falls under the exclusion provided by Minn. Stat. §176.020, subd. 9.  Having determined that it does not, we see no basis to reapply the same statute and repeat the same analysis for each act or activity the employee may have undertaken as part of the overall event.

The compensation judge’s findings are affirmed.