When are party mishaps compensable under Virginia workers’ compensation?
During the Holiday season, many employers sponsor or provide social gatherings (i.e., parties) for the employees to enjoy. Unfortunately, accidents can happen anywhere, under any circumstances. Are accidents at holiday parties considered compensable? The answer, like most in Virginia workers’ compensation jurisprudence, can be complicated.
In order to recover for his or her injuries, the employee must prove by a preponderance of the evidence an injury by accident “arising out of and in the course of” the employment. An accident occurs “in the course of the employment” when it takes place within the period of the employment, at a place where the employee may reasonably be, and while the employee is reasonably fulfilling duties of the employment or engaged in doing something incidental thereto.
Typically, an injury sustained at a social or recreational activity is not compensable. Pursuant to Va. Code § 65.2-101, the term “injury” “shall not include any injury, disease or condition resulting from an employee’s voluntary: 1. Participation in employer-sponsored off-duty recreational activities which are not part of the employee’s duties; . . .” However, certain actions of the employer can bring an injury sustained during a recreational activity into the employment. Within his treatise on workers’ compensation law, Professor Larson opined recreational or social activities are generally within the course of employment when:
(1) They occur on the premises during a lunch or recreation period as a regular incident of the employment; or
(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.
Larson, Workmen’s Compensation Law § 22.01 (2015).
In addition to Professor Larson’s treatise, the Court of Appeals of Virginia’s 1990 decision in Kim v. Sportswear is still instructive. There the Court held, “An employer can enlarge the ‘course of employment’ by extending the scope of employment to embrace recreational and social events.” “When a worker is injured at a place where his employment requires him to be while engaged in an activity reasonably connected with or incidental to his or her employment, compensation is allowable, even if the injury occurs after the employee’s actual employment labors are completed.” “The dispositive question is whether the social or recreational function is so closely associated with the employment to be considered an incident of it.” The extent to which the employer expects or requires the employees to attend, the degree to which the employer derives a benefit from the activity, the degree of sponsorship and participation by the employer, whether the activity occurs on premises associated with the employment, when the activity occurs in relation to work and the frequency or period over which the activity has been conducted are all factors to be analyzed when determining if an accident occurs in the course of employment.
We can expect the Virginia Workers’ Compensation Commission to examine the totality of the circumstances. The reported opinions in this area of the law are often seen as inconsistent and, thus, very fact specific. Predicting which facts will prove more persuasive is not but so dependable. Some may think it requires some clairvoyance. At the very least, the answer requires serious inquiry and legal analysis, maybe even formal discovery. We at Two Rivers Law Group welcome all opportunities to defend questionable claims and assist our clients with these often difficult decisions.
Cecil H. Creasey, Jr.