In November, WorkCompCentral reported an Officer Fights for Benefits for Injury Sustained During a Charity Basketball Game, The litigation is in Alabama, which provides some uniqueness. However, the issue of volunteer activity off the clock comes up periodically in many workers' compensation systems.
The uniqueness in Alabama is that there is no administrative hearing process there. Workers' compensation claims in Alabama are heard by the courts of general jurisdiction, like other cases such as torts, criminal, family, probate, and more. Alabama may be the last such state without an administrative process in workers' compensation. Tennessee and Oklahoma made the transition to administrative systems recently.
Whether or not an injury or accident is compensable in workers' compensation comes down in many jurisdictions to a two-part examination of whether the accident was in the "course and scope" of employment, and whether the injury "arose out of" that work. These were discussed in this blog in Police Officers and Course and Scope (January 2017), and Volunteer and Scope (October 2017). I received several contacts after Volunteer. Consistently, contacts, after posts are published, raise similar issues and alternative outcomes. And, sometimes they provide insightful perspectives.
The Alabama police officer case illustrates an interesting conundrum. This officer claims to have suffered a "career-ending knee injury," while playing basketball. That sentence alone might cause pause among some. What is the job of police officers? Playing basketball? Well, that activity might be seen in a variety of settings.
Last year, a Florida police officer responded to a noise complaint, Finding a group of kids noisily playing ball, the officer joined in. When the officer later returned for a rematch, he brought "backup" in the form of former NBA player Shaquille O'Neal, as CNN reported. There is no shortage of stories involving police officers engaging with youth and sports. See it in Wisconsin, New York, Michigan, and South Dakota. The New York officers did not have Shaq, but it is my favorite example just because it is unique. Some characterize these interactions as "community policing." They are actually "on duty" basketball games. Would an injury in that setting be treated differently?
But the situation in Alabama is slightly different. The Alabama officer was playing while off-duty and out of uniform, in "a charity basketball game" in 2015. There does not appear to be any dispute that the officer was in the game, or that he was injured. It is not uncommon for workers' compensation disputes to resolve around facts such as whether something happened (an "accident") and whether such an event caused the need for medical care or treatment (an "injury"). But in this instance, it appears the only real dispute is whether the officer was at work during this game.
That is a critical point. Workers' compensation is a system of benefits that provides medical care and wage replacement when someone is injured "on the job." Thus, the question raised in this case is whether the basketball injury in 2015 "occurred in the course and scope of" employment. The officer contends that it did, and his employer denies that.
In a similar setting, a Florida policeman was not entitled to workers' compensation in 1983. The court there applied a "three-part test" espoused by a commentator. Using that analysis, the court concluded the employer was not a sponsor of the game, and the city was not shown to be promoting either the game or the officer's participation. Uniforms were not provided by the city, the game was not during working hours, and "far more police officers did not participate in the softball game than those who did." So, the court concluded the officer did not prove the city "impliedly required participation" or "made the game a part of" the employment. Brockman v. City of Dania, 428 So,2d 745 (Fla 1st DCA 1983).
Almost ten years later in Highlands County v. Savage, 609 So.2d 133 (Fla 1st DCA 1992), the court addressed another sports injury. This was suffered by a teacher during a fundraising event. The court noted that the Florida Legislature had addressed recreational activity injuries by enacting section 440.092 in 1990. That section provides:
(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.
The court then analyzed the teacher's claim for benefits. It affirmed the trial judge's conclusion that this basketball game was not a recreational or social activity. However, the employer required the attendance at, and participation in, this event by teachers (such as the injured worker). The purpose of the event was "developing community awareness by requiring students to participate in a community service project." Thus, the court affirmed the conclusion that it was not social or recreational.
However, the court continued, that even if the event were either social or recreational and subject to the exclusion of the (then) recently enacted exclusion, that the worker would still be entitled to benefits. The court noted that the evidence at trial supported both that the game was “an expressly required incident of employment” and that there was "a substantial direct benefit to the employer beyond improvement in employee health and morale.” Thus, even if a social or recreational event, the evidence supported it was a mandatory and beneficial (to the employer) social or recreational event.
These two cases illustrate outcomes with which individual perspectives may rationally disagree. There is merit in the belief that off-duty police officers playing in a public athletic event benefits a town and builds community. There is also merit in the belief that a teacher (not a coach or athlete) is not acting as a teacher when engaged in a sporting event. Some would argue that because there is merit in the courts' analysis they are "right," or that because there is merit in a different outcome the cases are "wrong."
The law struggles with these kinds of injuries. The analysis illustrated, with or without section 440.092, is based largely upon decision-making. Did the employer make the decision that an employee would/should attend, would/should participate? Did the employer directly, or implicitly, make the event part of the work? The other element is the benefit to the employer. Was there or was there not some benefit to the employer? Arguably, both Brockman and Savage turn on these same elements, whether section 440.092 is analyzed or not.
This subject is of course more complex in various settings. There are instances in which the evidence is more equivocal, and there are disagreements about facts and conclusions. The net result, to some, is a decrease in the American paradigm of a "company" softball team. There are employers who now eschew such activity because of the potential that sponsorship and participation could lead to litigation as described in these cases. It is possible that the Florida statute makes the analysis simpler with its requirements "expressly required" and "substantial direct benefit?" But, that predictability is not enough to encourage some employers to have a "company team."
Notably, when there is doubt regarding compensability, then it is perhaps not uncommon for a 2015 event to be litigated in 2017 or 2018 as is playing out in Alabama. One seeming consistency across the country is that these disputes take time. And while they are resolved lives and livelihoods may be on hold.
Notably, when there is doubt regarding compensability, then it is perhaps not uncommon for a 2015 event to be litigated in 2017 or 2018 as is playing out in Alabama. One seeming consistency across the country is that these disputes take time. And while they are resolved lives and livelihoods may be on hold.