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Legal VIEW

Labor Rules Are Not Fun and Games

April 28, 1988|JEFFREY S. KLEIN

The workers' compensation laws provide compensation for an employee's injury, without regard to fault, as long as the injury arises out of and in the course of employment.

In other words, even if an employee is careless and causes his own injury, he may recover workers' compensation benefits. The system, which has been in place in California since 1911, is designed to provide prompt payment rather than make employees spend years in court trying to assess blame for the injury.

But sometimes you still have to spend years in court. That's because somebody has to decide whether an injury "arises out of and in the course of employment." The problem is especially apparent when it comes to "off-duty" recreational or athletic activities.

Law to Clarify

The state Legislature tried to make clear that workers' compensation did not apply to injuries sustained during recreational, social or athletic activities only remotely connected to work. The purpose of the legislation, as one court explained, was to ensure that an employer could provide recreational benefits without also "bearing the expense of insuring the employee for workers' compensation benefits during participation in those activities."

The state Labor Code says off-duty recreational activities are only considered part of the job--and thereby are covered by workers' compensation--if they are a "reasonable expectancy of, or are expressly or impliedly required by, the employment."

For example, in one 1980 case, a law clerk for a law firm was awarded workers' compensation benefits when she injured her thumb in an after-hours softball game. The court decided that she reasonably and honestly believed that playing on the team--with four women needed to compete--was expected by her boss. It is not sufficient that she honestly believed her work required participation; a court must also decide that her belief was objectively reasonable considering the circumstances.

But it can be difficult to determine what athletic activity is expected as part of the job. In February, on the very same day, one Court of Appeal decided two different cases, each involving a lunchtime basketball game. And the decisions landed on opposite sides of the court.

In one case, an employee, an electronics technician, was injured while playing basketball with his fellow employees on the employer's premises during his lunch break. The employees had installed the basketball hoop with the consent of a supervisor. The court refused to award benefits, because the game was voluntary and not part of the job.

In the other case, a Berkeley policeman was injured during a lunchtime "pick-up" game in the gym in the city's Hall of Justice. He was a member of a special hostage-negotiating team, which had a tough physical fitness standard. He believed that participation in the basketball game was expected by the police department because of the higher fitness standard. And he won the case.

Question of Validity

As you can see, it is difficult to predict whether you have a valid claim. First, consult with your own company personnel department, and if necessary, seek the counsel of an experienced workers' compensation lawyer.

For a list of lawyers who are certified as specialists in this field, write or call the State Bar's California Board of Legal Specialization, 555 Franklin St., San Francisco, Calif. 94102. Telephone (415) 561-8265.

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