WCDefenseCA

Think to your client’s workplace, or even your own.  Think of the top 3 things that are fun and enjoyable.  Ok, get rid of them, because they’re driving up your workers’ compensation rates!

The recent case of Jose Hernandez v. Bryan Mimaki, saw the Workers’ Compensation Appeals Board affirming a Workers’ Compensation Judge’s finding of a compensable injury when Mr. Hernandez injured his knee during a lunch-time basketball game at work.

The employer-provided a court and basketballs, and apparently, for years and years, employees had played basketball during their lunch break.  Applicant’s own supervisor regularly encouraged him to play, which he did.  Testimony was taken that applicant didn’t always play, and there were no consequences for not playing.  Additionally, one of the supervisors (not applicant’s) discouraged his own team from playing because he considered it a “dangerous game” (a gateway sport to more, hard-core sports, such as hockey).

The WCJ and the WCAB both found that Labor Code section 3600(a)(9) (“voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.”)  The WCAB relied on the case of Ezzy v. Workers’ Comp. Appeals Bd. (1983), noting that because there was a subjective understanding on the part of the employee, and that understanding was reasonable (with respect to the requirement that he play).

But in the Ezzy case, applicant returned from vacation and was given a team shirt and told that she’d be at the next game.  In the instant case, however, a supervisor (in other words, another employee), didn’t force anyone to play.  In fact, there were several employees who did NOT play, and applicant didn’t play on occasion, with no consequences.

But, what can you do?

Like your humble blogger suggested at the beginning of this post, think of all the things that are fun and enjoyable at your place of business, and get rid of them.