Wisconsin Lawyer’s Poker Playing and “Rainmaking” Insufficiently Connected to Employment to Support Serious Injury Claim from Motorcyle Accident

An attorney and shareholder of a law firm was appropriately denied workers’ compensation benefits in connection with a motorcycle accident that rendered him a quadriplegic, since his “rainmaking” activities was insufficiently connected to his employment to bring the accident within the course and scope of his employment, held a Wisconsin appellate court recently in Westerhof v. State Labor and Industry Review Comm’n, 2014 Wisc. App. LEXIS 410 (May 22, 2014). The attorney contended that he had joined a weekly poker group as part of his overall marketing strategy, that the group was made up of small business owners, including a real estate appraiser, and that at the time of the motorcycle accident, he had been accompanying the appraiser to a gathering of Harley-Davidson enthusiasts. Since the attorney’s pay at the firm was based on two components–“actual work performed” and “clients brought into the firm regardless of who perform[ed] the legal work,” the attorney contended his rainmaking activities were within the course and scope of the employment. The Commission disagreed and denied his claim. 

The appellate court noted that the business generated by the attorney from the weekly poker games, was minimal and that the ALJ found that the facts did not support the attorney’s claim that the “poker group” was his marketing mechanism to attract clients to the firm. The court agreed with the Commission’s determination that, even if the poker games could be considered client entertainment, it did not follow that every trip or activity the attorney and appraiser undertook together was client entertainment or business-related networking. Based on the court’s review of the record, it concluded that there was credible and substantial evidence to support the Commission’s conclusion that the motorcycle trip was “simply a social outing among friends who occasionally did business together.”

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