Our firm has been hired by a woman who recently sustained a serious leg injury while walking back to her car from a company sponsored holiday party. The employer has refused to provide workers’ compensation benefits, claiming that the accident did not happen in the course and scope of employment.
While our firm handles both workers’ compensation and premises liability cases, we have agreed to pursue a premises liability action against the employer. (The accident happened on its property.) We believe that the employer and possibly others are responsible for creating an accident-causing dangerous condition.
We can proceed with a liability case against the employer because, by asserting the course-and-scope defense, it has waived workers’ compensation immunity. (Since we agree that the accident did not happen in the course and scope, even if the employer/carrier had accepted the accident as workers’ compensation compensable, we might have challenged that conclusion in order to pursue the liability case. See City of Miami v. Gutierrez, 979 So.2d 1028 (Fla. App., 2008) (City’s effort to hide behind workers’ compensation immunity rejected because the employee was engaged in a recreational activity, unrelated to the work she was hired to perform at the time of the accident.).)
Not every employee whose workers’ compensation claim has been denied has the option of pursuing a personal injury case. Personal injury cases require a duty and a breach of that duty (usually negligence) by the defendant. Negligence is often missing in accident cases involving employees.
Our client caught the heal of her shoe on a tree root as she was crossing over a swale to her car. The employer/property owner had not installed dedicated paths through the swale, leaving people to cross back and forth over uneven terrain. The accident happened at night.
Since not every employer has a viable personal injury case, what must an employee injured while involved in a company sanctioned event prove to receive workers’ compensation benefits?
The statutory answer is located in Section 440.092(1) Florida Statutes:
(1) RECREATIONAL AND SOCIAL ACTIVITIES.–Recreational or social activities are not compensable unless such recreational or social activities are an expressly required incident of employment and produce a substantial direct benefit to the employer beyond improvement in employee health and morale that is common to all kinds of recreation and social life.
Numerous appellate decisions have addressed the statute. After doing the research, we’ve concluded that our accident is excluded by the statute. The main reason why is because our client was not required or compensated to attend the after-hours party. It was a large party attended by hundreds of employees from various departments. While some departments may have required their employees to attend, our client’s department did not. She checked in, but only to gain admission.
In Whiteside v. Orange County Sheriff’s Dept., 909 So.2d 344 (Fla. 1st DCA 2005) , an on-call deputy sheriff was injured when playing softball with her supervisor and co-workers. The judge of compensation claims (JCC) agreed with the employer’s denial of workers’ compensation benefits, finding that Claimant’s participation in the softball game was a non-mandatory recreational activity. In a split decision, the appellate court affirmed the JCC’s ruling. The dissent cited Klyse v. City of Largo, 765 So.2d 270 (Fla. 1st DCA 2000), finding it significant that the Claimant was on duty, earning wages, and doing an activity authorized by an employer. The judge reasoned: “When an employer decides to pay an employee for playing in a softball game, that employer has decided that such activity is not recreational, but beneficial to its enterprise for whatever reasons. In other words, the activity should not be, and cannot be, ‘”recreation”‘ under section 440.092(1). See [Highlands County Sch. Bd. v. Savage, 609 So.2d 133, 134-35 (Fla. 1st DCA 1992)] (holding ‘”the activity in which the claimant was injured `was not social and recreational, but was a regular incident of her employment,'” where claimant, a teacher, was injured during a teacher-student basketball game, which occurred during regular school hours and for which she received regular salary).”
The Whiteside dissent analysis is the prevailing position in Highland County School Bd. v. Savage, 609 So.2d 133 (Fla. 1st DCA 1992), a case involving the following undisputed facts: The claimant, a teacher at Sebring Middle School, was injured in December 1990 during a basketball game between the teachers and students. The game was an annual charity event. The game occurred during regular school hours, and the teachers received their regular salary. The teachers were required to participate in the game, either as a spectator or a player. No benefit or detriment resulted from a teacher’s decision to play or to act as a spectator.
The JCC specifically found that the activity in which the claimant was injured
was not social and recreational but was a regular incident of her employment.
The First DCA agreed with the JCC, adding the following observation:
there [is] … record support for finding … both ‘”an expressly required incident of employment”‘ and ‘”a substantial direct benefit to the employer beyond improvement in employee health and morale”‘ as required by the statute. It was uncontradicted that the basketball game was a school activity which required attendance of both students and faculty. Teachers were expressly required to participate in the basketball game in some manner. The event was a part of the school program for the purpose of developing community awareness by requiring students to participate in a community service project.
Our case is easily distinguished from Whiteside and Savage. The party was after-hours. She was not required or paid to attend.
In our case, it’s on to proving negligence.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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