A New York appellate court, in Nichols v. Hale Creek ASACTC, 2012 N.Y. App. LEXIS 79 (Jan. 5, 2012) has affirmed an award of workers’ compensation benefits to a superintendent of a county correctional facility who sustained a ruptured Achilles tendon while coaching an employee volleyball team in spite of N.Y. Work. Comp. Law § 10 (1), which excludes injuries sustained during voluntary participation in an off-duty athletic activity that does not constitute a part of the employee’s work-related duties.
The superintendent was preparing an employee team that was preparing to compete in the “Department of Corrections Olympics.” The appellate court noted that while coaching teams was not an ordinary part of the superintendent’s duties, the record demonstrated that he had been given a specific directive to improve staff morale; his encouragement of employee participation in the Olympics and his active role in coaching the team were in furtherance of that directive. Important to the court’s decision also was the fact that the superintendent’s supervisor testified that she evaluated staff morale as part of her assessment of the superintendent’s leadership and that there was an expectation that he be involved in as many facility-related events as possible.
Reacting to perceived abuses by courts in a number of instances, legislatures in a host of states, in addition to New York, enacted statutory limitations regarding recreational injuries. The states with limiting statutes include at least the following:
- California [see Cal. Labor Code § 3600(a)(9)]
- Colorado [see Colo. Rev. Stat. Ann. § 8-40-201(8)]
- Connecticut [see Conn. Gen. Stat. § 31-275(16)(B)(i)]
- Florida [see § 440.092(1), Fla. Stat.]
- Illinois [see 820 ILCS 305/11]
- Massachusetts [see Ann. L. of Mass. ch. 152 § 1(7A)]
- Michigan [see Mich. Comp. Laws § 418.301(3)]
- Missouri [Mo. Rev. Stat. § 287.120.7]
- Montana [see Mont. Code Ann. § 39-71-118(2)(a)]
- Nevada [see Nev. Rev. Stat. § 616A.265]
- New Hampshire, [see RSA 281-A:2, XI]
- New Jersey [see N.J. Stat. Ann. § 34:15-7]
- Oregon, [see Or. Rev. Stat. § 656.005(7)(b)(B)]
- Wyoming [see Wyo. Stat. § 27-14-102(a)(xi)]
In those jurisdictions without special statutory provisions limiting recovery, courts generally consider a number of questions in determining the work-relatedness of the injury.
- Did the employer in fact sponsor the event?
- To what extent was attendance really voluntary?
- Was there some degree of encouragement to attend evidenced by such factors as: (a) taking a record of attendance; (b) paying for the time spent; (c) requiring the employee to work if he did not attend; or (d) maintaining a known custom of attending?
- Did the employer finance the occasion to a substantial extent?
- Did the employees regard the activity as an employment benefit to which they were entitled as of right?
- Did the employer benefit from the event, not merely in a vague way through better morale and good will, but through such tangible advantages as having an opportunity to make speeches and awards? [see, e.g., Martin v. Mars Mfg. Co., 58 N.C. App. 577, 293 S.E.2d 816, cert. denied, 306 N.C. 742, 295 S.E.2d 759 (1982)]. For a thorough discussion of the point, see Larson’s Workers’ Compensation Law, § 22.01, et seq.