Kickball Game Organizer Covered When Injured During Game

by Collins & Lacy, P.C.

In a 3-2 decision the Supreme Court reversed the Court of Appeals and the Workers’ Compensation Commission, finding an injury to the organizer of a company kickball game was compensable, although it may not have been for other employees, who merely played in the game. Whigham v. Jackson Dawson (Op. No. 27440 August 27, 2014).

Whigham was employed as the Director of Creative Solutions for a marketing company. As part of his employment, Whigham attended bi-monthly meetings wherein the managers discussed, among other things, the importance of team-building events. In accordance with the company’s desire to cultivate an enjoyable work atmosphere, Whigham conceived the idea of having a company kickball game. He proposed the idea to his superior, who instructed him to move forward with it. Whigham contacted a rental facility and designed T-shirts for the event. Johnson authorized Whigham to spend $440 of company funds for the rental, the T-shirts, drinks, and snacks. Whigham used the company intranet to promote it and encourage attendance. The game took place on a Friday afternoon at 3:00 with roughly half of the company’s employees in attendance. Whigham was injured while playing, shattering his tibia and fibula. He had two surgeries and was told he would need a knee replacement in the near future.

When Whigham’s supervisor was asked whether he would have been upset if Whigham did not attended the game, he responded that he “would have been surprised and shocked, because [Whigham] spent all the time planning the thing.” When asked if he would have considered it irresponsible of Whigham not to show up, Johnson could barely entertain the suggestion, stating: “I don’t know. I would have thought—he wouldn’t do that. I’ll just say that. He wouldn’t do that. . . . It would have been just unexpected, unbelievable. I mean, you don’t just plan something and then not show up for it.”

The supervisor also testified these team-building events are considered desirable to the company as occasions to “promote fun within the business” and “break the stress.” The employer strived to be a “non-typical employer” by being a “fun place to work.” A fun atmosphere is seen as a means to “retain good employees and keep people happy,” which would produce better performing employees. When Whigham brought up the idea of the kickball game to his supervisor the response was, “That is a crazy idea, but let’s talk more about it.” The supervisor authorized Whigham to spend company funds on renting the facilities as well as purchasing snacks and T-shirts for the game. The supervisor also was aware and supportive of the fact that Whigham used the company intranet to promote the event and encouraged employees to attend even though it occurred during business hours. The supervisor’s employment evaluation of Whigham stated that he was a “team player” and specifically noted he “has been instrumental in bringing back a couple of fun events.”

The Supreme Court reversed the Court of Appeals, and the Commission, and held the injury was compensable on the ground that Whigham was impliedly required to attend the kickball game he organized, and that it became part of his services: “[T]herefore, the event was brought within the scope of his employment. Although the event may have been voluntary for company employees generally, the undisputed facts unequivocally indicated Whigham was expected to attend as part of his professional duties.”

Notably, two justices dissented. The dissenting opinion stressed the event was voluntary for everyone. The opinion expressed concern regarding the language in the majority opinion suggesting the claim was compensable for Whigham, a supervisor, but likely was not compensable for employees: for “the event may have been voluntary for company employees generally[,]” and Whigham’s organizational role “sets Whigham’s participation apart from that of all other employees.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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