GQ Corner
Q. The owner of our insured was injured while performing work-related activities. Would he be considered an “employee” entitled to benefits under the Act?
A. Generally, yes. Texas Labor Code Section 406.097 addresses “Executive Employees of Certain Business Entities” and specifically provides that a sole proprietor, partner, or corporate executive officer of a business entity that elects to provide workers’ compensation insurance coverage is entitled to benefits under that coverage as an employee unless the sole proprietor, partner, or corporate executive officer is specifically excluded from coverage through an endorsement to the insurance policy or certificate of authority to self-insure.
Thus, the executives are generally covered unless specifically excluded by policy endorsement.
Q. The claimant works as a cashier at a trampoline park. The management of the claim employer invited her and her co-workers to return to the premises afterhours for a company-sponsored “fun day” for “team-building events” and similar activities. The claimant completed her shift and clocked out but returned for these subsequent events, during the course of which she injured her knee while jumping on a trampoline. Would such injury be compensable under these circumstances?
A. Maybe. The test for whether recreational activities fall within course and scope is the three-pronged disjunctive test set forth in Mersch v. Zurich, 781 S.W. 2d 447 (Tex. App.—Fort Worth 1989, writ denied) providing essentially that injuries sustained during the course of participation in an off-duty recreational, social or athletic activity are compensable if (1) the activity is expressly or impliedly required by the employer; (2) the employer derives a benefit from such participation; or (3) the activity underpinning the injury took place at the place of employment while the employee held herself ready for work and the activity took place with express or implied permission of the employer.
Ultimately, compensability questions of this nature are heavily fact-intensive and the outcome hinges on the manner in which the Hearing Officer applies the above test to the specific facts at bar. If your investigation reveals that the employer required or even simply encouraged participation in the activity underpinning injury, a Hearing Officer is likely to find such injury to have been sustained within course and scope. Similarly, if your investigation reveals that the employer derived a benefit from the “team-building” nature of the activity or otherwise, the Hearing Officer may alternatively, or additionally, base a determination of compensability on this fact.
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