A Capehart Scatchard Blog

Are You Covered for Comp When You Tear Your Knee Playing for the Company Softball Team or Dancing at the Holiday Party?

By on April 12, 2016 in Compensability with 0 Comments

Most employers have some recreational or social activities throughout the year, and unfortunately, injuries tend to occur at these events.  There used to be so many of these kinds of claims that the New Jersey Legislature enacted new legislation in 1980 under N.J.S.A. 34:15-7, which provides that recreational and social activities do not arise from the employment “unless such recreational or social activities are a regular incident of employment and produce a benefit to the employer beyond improvement in employee health and morale.

So under this rule a volunteer firefighter who was injured playing softball for the fire department team was not covered for workers’ compensation because his participation in the softball game was not required and was purely for morale purposes.  Dowson v. Borough of Lodi, 200 N.J. Super. 116 (App. Div. 1985), certif. denied. 103 N.J. 455 (1986). Similarly, a supervisor asked one of his employees if he would like to arm wrestle the supervisor, and the two men arm wrestled during work hours with injuries resulting to the employee.  The court also found this case not compensable as a recreational claim involving only morale.  Quinones v. P.C. Richard & Son, 310 N.J. Super. 63 (App. Div. 1998), certif. denied. 156 N.J. 384 (1998).

But what about the situation where a teacher engages in a volleyball game with students and parents on school premises and the event has been advertised by the school, asking for volunteers to participate in the event?  These kinds of activities occur at many schools in New Jersey and in other states on a regular basis.  Often the event is an annual one, which tends to satisfy the clause above being a regular incident of employment.  There are often notices about the event throughout the school and teachers are encouraged to participate.  Suppose a teacher is later injured and brings a workers’ compensation claim, seeking medical treatment, temporary disability benefits and an award of partial permanent disability? The question is this:  does this activity involve a benefit to the employer beyond improvement in health and morale or is it just about morale?

There are no published decisions on this particular issue but these types of injuries happen frequently.  The main reason for the absence of published decisions is that most practitioners and judges believe these kinds of injuries involving teachers in parent/faculty/student events are compensable.  So the cases tend to be accepted from the outset.  The advertised parent/faculty/student volleyball game on school premises is not just about promoting health and morale.  That is definitely part of it, but counsel for the injured teacher will successfully argue that the activity is really about improving the relationship among parents, students and teachers, with the ultimate goal being a better learning environment.  The goal of education and student enrichment goes well beyond merely promoting health and morale. If the activity promotes a benefit beyond improving health and morale, the activity is compensable.  Raising funds for the employer would be another example of something that is beyond improving health and morale.

Contrast this with a situation where a teacher steps into the gym to shoot a few baskets on the way to his or her next class with a student he knows and then falls, fracturing an arm.  This sort of activity is spontaneous, unplanned, and more about morale than anything else.  Judges would likely find this sort of injury not compensable.

In 2004 an important decision came down from the New Jersey Supreme Court which added a new dimension to the equation.  That case is Lozano v. Frank Deluca Const., 178 N.J. 513 (2004).  Mr. Lozano was seriously injured driving a go-cart on the property of a customer where the company was doing masonry work.  Lozano was a skilled mason who was picked up by his boss in the morning and taken to the homeowner’s large property where they worked all day.   After work the boss asked permission from the homeowner to drive one of the go-carts on his private track.  The homeowner and the boss drove their go-carts around the track.  Then the boss asked the claimant if he wanted to take a spin.  Mr. Lozano reminded his boss that he had no driver’s license and did not know how to drive, so he refused.  The boss then told Lozano to get in the go-cart and drive.  Lozano did just that and proceeded to drive the go-cart into a parked truck, suffering serious injuries. At trial, Lozano said he felt that he had to follow orders from his boss, but he did not want to drive the go-cart in the first place.

The Supreme Court announced a sensible rule that when an employer compels activity that would ordinarily be barred as a social or recreational one, that activity becomes compensable.  The Lozano rule has been followed by courts in many other decisions. What it means for an employer is this:  if the employer pressures employees to attend holiday parties or participate in otherwise barred recreational activities, any injuries flowing from those activities will be found to be compensable in workers’ compensation based on the element of compulsion.  Hence the adage:  if you have to do it, what you are doing is likely compensable under workers’ compensation.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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