STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


DONNA KARGUS, Applicant

LUTHERAN SOCIAL SERVICES, Employer

INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-014167


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed by the applicant.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed June 15, 2000
kargudo.wsd : 175 : 2   ND § 2.17

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant asserts in her petition for commission review that the administrative law judge erred in determining that the applicant was not performing services growing out of and incidental to her employment at the time of her injury on December 15, 1997. The applicant contends that her attendance at the Christmas party for the residents and staff members on that date was expected. Further, the applicant states that the party that she was attending was within the course of the employer's business as it was an event that was sponsored to provide a normal life activity for the residents of the group home, and that the employer would also sponsor other activities such as trips to restaurants, the mall, baseball games and picnics. However, the employer's manager, Ms. Milner, testified that the attendance of other staff members than those who were on duty at the Christmas party was left totally up to the individual staff member.

The evidence indicates that all staff members, including the applicant, were required to attend a planning session for the Christmas party while on duty, and that the applicant along with other staff members received an invitation to the Christmas party. Ms. Milner admitted that she would like to see all of the staff attend the party and that she would encourage everyone to come, but there was no inducement to attend the party. Ms. Milner testified that there were two individuals, Mr. Hoffman and Mr. Arnold, who did not attend the Christmas party and there were no adverse affects to their employment status because they did not attend. In addition, Ms. Milner testified that other than an exchange of Christmas gifts between residents there was no award, bonus or payment made to any staff member that attended the Christmas party, and no business was conducted in which the applicant would have been involved.

Ms. Milner also indicated that the applicant had not attended the Christmas party in 1998 and had not attended the dinner portion of the activity prior to the reception in 1997, and had not been penalized or subject to discipline for failing to attend those activities. Ms. Milner testified that there was absolutely nothing that gets into an applicant's personnel file or their evaluation that has anything to do with their attending these kind of functions, and that there is nothing put into the personnel file about being a team player or volunteering extra time or anything of that sort. The commission credits Ms. Milner's testimony.

In the case of Wunsch v. City of Fond du Lac Fire Department (LIRC Decision 12/21/94), an employe who had participated in a donkey baseball game as part of a fund raising event for youth baseball was injured when he fell, and it was determined that the applicant in that case was injured in an activity arising out of his employment. The commission relied on the fact that the employe was subject to the employer's rules of conduct while participating in the event, that participation was part of his job description and was considered in performance evaluations, and that his participation benefited the employer and the employer actively solicited employe participation in the event. In the current case the evidence did not indicate that the applicant's attendance at the Christmas party was part of her job description or considered in her performance evaluations.
Professor Larson indicates in his treatise on worker's compensation law in section 22.04(3)(b) that in the case of office parties that the extent to which a customer/employer expectation necessitates attendance is always a major factor, just as the showing of the completely voluntary character of the attendance can offset the mere unassisted factors of employer sponsorship. In addition, in Schwab v. Industry, Labor and Human Relations Dept., 40 Wis. 2d 686 (1968), involving an after hours supervisory get together held at a resort in which the injured employe was invited to attend only the social hour and dinner while other employes intended to attend a business meeting, and the employe was subsequently injured while driving home from this get together the Wisconsin Supreme Court noted that the supervisory get together, took place under the employer's auspices and that the function was considered a business expense of the employer, although those persons attending the function were not paid for their time and no deductions were made for those not attending. The court noted that just because an employer experiences some benefit from a social function in the form of increased morale and greater employe efficiency does not as a matter of law bring social and recreational pursuits within the course of one's employment. The Wisconsin Supreme Court held in the Schwab case that the applicant's injury did not occur while he was participating in an activity arising out of his employment.

In the current case it is clear that the employer received some benefit from the applicant's attendance at the Christmas party reception at the Stingle home given her interaction with the residents as well as her co-workers. It is also clear that if an emergency had arisen it is not unlikely that if the applicant had been in a position to do so that she might have engaged in activity to assist and help the paid staff. However, the applicant admitted that she was not being paid, and was not on duty at the time of her injury. The employer had a tradition of holding the Christmas party simply as a staff social activity as well as an activity for the residents of the group home, and that employes were not disciplined or evaluated on the basis of their attendance at such social functions. In fact, the applicant failed to attend the dinner prior to the reception at the Stingle home and was not reprimanded for her failure to attend and did not attend the party subsequently in 1998 and did not receive any detrimental evaluation for her failure to attend.

Professor Larson noted that it could be taken as distinctly the majority view that morale and efficiency benefits are not alone enough to bring recreation within the course of employment. In this case the employer had two paid staff members at the party who were required to escort and monitor the residents' activities. The applicant simply attended with other co-workers to a social gathering and not as part of her work. It was not established that the applicant helped a specific resident, Lorna, with whom she had good rapport, or that Lorna had caused any problems at the party that required the applicant's attention. Rather, the applicant was simply seen socializing with Lorna.

The employer sponsored the event, planned it and paid for the food, but it also appears that attendance was voluntary for staff members such as the applicant who were not assigned to work that day. It was also not established that the applicant and other employes regarded the party as some kind of employment benefit. Given the fact that the applicant's attendance at the party was voluntary, she was not a paid staff member or required to attend, given the fact that the applicant was not evaluated or disciplined based on her attendance, and given the fact that the applicant's attendance was not at all necessary to the services provided by the applicant to the residents, the administrative law judge appropriately found that the applicant was not performing services growing out of and incidental to her employment at the time of her injury and therefore is not entitled to worker's compensation benefits.

cc: ATTORNEY ROBERT W SWAIN JR
ROBINSON PETERSON BERK & CROSS

ATTORNEY JEFFREY J STRANDE
PIEHLER & STRANDE SC


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