GQ Corner
Q. The claimant was participating in an off-site work event. Claimant was playing pickle ball and fell hurting his left thumb and right wrist. Claimant says he was on the clock at the time of the injury and paid for the day even though they were at a “fun” event. The insured reports that the whole region gets together every quarter to do an event and claimant was encouraged to participate. Since this was a “team-building” event that was encouraged by the employer, would this be a compensable injury?
A. There is a three-step analysis that must be done in these types of cases.
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- First, you must determine if the “temporary direction” doctrine applies. (Note that such doctrine is inapplicable for employees of political subdivisions, such as teachers; see Tex. Labor Code Sec. 504.001). In APD 972113 and, following remand, APD 980600, Claimant volunteered to participate on a cooking team sponsored by the employer. The ALJ found that the claimant was not impliedly or expressly required to be a member of the cooking team and that cooking was not a reasonable expectancy of the claimant’s employment. However, the AP said that this does not end the inquiry. The ALJ must also make findings of whether, once the claimant volunteered (accepting that there was no requirement to volunteer as was also found by the ALJ), there was or was not an implied requirement to report for cooking duties on an otherwise normal workday in order to be paid for that workday. If there were, then the “temporary direction” doctrine applies, and the injury is compensable.
- If the “temporary direction” doctrine does NOT apply so as to make the claim compensable, you then analyze the claim under what is known in Texas as the “Mersch test” to determine if the claimant was in the course and scope of employment at the time of the injury. Mersch v. Zurich, 781 S.W. 2d 447 (Tex. App.—Fort Worth 1989, writ denied). Under Mersch, injuries sustained during the course of participation in an off-duty recreational, social or athletic activity are compensable if:
- First, you must determine if the “temporary direction” doctrine applies. (Note that such doctrine is inapplicable for employees of political subdivisions, such as teachers; see Tex. Labor Code Sec. 504.001). In APD 972113 and, following remand, APD 980600, Claimant volunteered to participate on a cooking team sponsored by the employer. The ALJ found that the claimant was not impliedly or expressly required to be a member of the cooking team and that cooking was not a reasonable expectancy of the claimant’s employment. However, the AP said that this does not end the inquiry. The ALJ must also make findings of whether, once the claimant volunteered (accepting that there was no requirement to volunteer as was also found by the ALJ), there was or was not an implied requirement to report for cooking duties on an otherwise normal workday in order to be paid for that workday. If there were, then the “temporary direction” doctrine applies, and the injury is compensable.
(a) the activity is expressly or impliedly required by the employer; OR
(b) the employer derives a benefit from such participation; OR
(c) the activity underpinning the injury took place at the place of employment while the employee held himself ready for work AND the activity took place with express or implied permission of the employer.
If any of these 3 are met, the claimant sustained an injury in the course and scope of employment.
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- Finally, even if he DID sustain an injury in the C&S, you still may have a statutory defense to liability under Section 406.032(1)(D) of the Act, which makes clear that Carrier is relieved from liability if the injury arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the employee’s work-related duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employment.
In your case, if the pickleball event constituted part of the employee’s work-related duties, OR it was a reasonable expectancy of or was expressly or impliedly required by the employment, then you aren’t going to have a defense under 406.032(1)(D).
FOLIO
