Monday, January 29, 2007, 12:42 PM

NC SCT Holds Worker Injured At Employer Fun Day Not Injured In Course of Employment, Not Entitled To Workers' Comp.

On Friday, a majority of the NC SCT ruled in Frost v. Salter Path Fire & Rescue that an employee injured at her employer's "fun day" was not entitled to workers' compensation benefits because her injury at the fun day did not arise out of her employment.

Plaintiff Frost was a volunteer emergency medical technician--and volunteers have been treated like paid employees for workers' compensation purposes. See, e.g., Hix v. Jenkins, 118 N.C. App. 103, 453 S.E.2d 551 (1995). Frost attended Salter Path's fun day, an employer-sponsored event at an amusement park apparently meant to, inter alia, boost morale and show appreciation for volunteer employees. Crucially to the Court's result, attendance at fun day was voluntary, i.e., not required, and the fun day activities were "authorized merely for [plaintiff's] optional pleasure and recreation while she was off duty."

The majority analogized plaintiff's optional go-carting at Salter Path's fun day to the voluntary behavior of the plaintiff in Perry v. Am. Bakeries, Co., 262 N.C. 272, 136 S.E.2d 643 (1964). In Perry, the plaintiff injured himself was swimming during free time at an employer-sponsored sales meeting, and his injury was not compensable. The Frost majority also made clear that the 6 factors for determining whether an injury arose out of employment spelled out in Chilton v. Bowman Gray Sch. of Med., 45 N.C. App. 13, 262 S.E.2d 347 (1980), are not controlling but merely "helpful guideposts."

In the end, the Frost majority held that "Plaintiff attended 'Fun Day' of her own will and for her own personal benefit and pleasure. Therefore, we hold that an employee who, on a purely voluntary basis, attends a 'Fun Day' and is injured while participating therein, cannot be said to have suffered a compensable injury which arises out of and in the course of the employment. Thus defendant is not responsible under the [Workers' Compensation] Act for the non-compensable injuries plaintiff suffered furing her participation."

Justice Hudson did not participate in the decision; she was the author of the overturned COA majority. And Justice Timmons-Goodson dissented. Justice Timmons-Goodson found Perry distinguishable and Frost more analogous to Rice v. Uwharrie Council Boy Scouts of Am., 263 N.C. 204, 139 S.E.2d 223 (1964), in which an employee sustained injury while deep-sea fishing at an employer-sponsored conference. The fishing outing was "a planned part" of the conference program, and the evidence permitted an inference that the employer impliedly required participation in the outing. Justice Timmons-Goodson noted, inter alia, that the Salter Path chief had told plaintiff he wanted her to attend the fun day, the fun day tangibly benefited Salter Path, and "plaintiff was injured while engaging in activities at the very event her employer asked her to attend." Justice Timmons-Goodson would have affirmed the Industrial Commission's award of workers' compensation benefits to Frost.

Frost means that workers aren't entitled to workers' compensation for injuries occurring at their employers' voluntary "fun days." It would seem, then, that if those fun days are excluded from the workers' compensation scheme, employers could be on the hook for ordinary negligence claims arising out of such "fun day" events (negligence claims against employers are otherwise precluded by the exclusivity of workers' compensation benefits). Employers may want to think about that before planning their next "fun day" white water rafting trip or go-carting excursion...


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