In a recent decision that shouldn’t be too surprising to those who follow workers’ comp compensability issues, the Massachusetts Supreme Court recently upheld a decision by the Department of Industrial Accidents to grant workers compensation benefits to Karen Sikorksi, a Peabody teacher injured while chaperoning high school kids on a 2004 ski trip. The City of Peabody had contested the award on the basis that she was a volunteer engaged in a recreational activity.
We’ve seen many of these cases and the decision often hinges on the voluntary nature of the activity. In this case, the city of Peabody probably thought they were well within the law in denying benefits. According to Insurance Journal, the Massachusetts legislature added a little twist to the workers’ comp statue in 1985, when it excluded “… any injury resulting from an employee’s purely voluntary participation in any recreational activity, including but not limited to athletic events, parties, and picnics, even though the employer pays some or all of the cost thereof.”
Note the adjective “purely.”
When is a volunteer really not a volunteer? Usually, when an employer encourages the employees to participate in said activity. (Everybody who has ever been an employee is likely familiar with the concept of so-called voluntary recreational activities – non-participation can be a career-limiting option.) According to reports, the Peabody school administration has historically expected teachers to become involved with the school’s extracurricular activities and, in this particular case, the school principal and the ski club adviser solicited teachers to serve as chaperones. In Sikorski’s case, the Supreme Court justices unanimously found that she was “acting in the course of her employment” and not in a recreational activity as described in the law. The court found that her responsibilities as chaperone were “…essentially the same ones teachers must exercise while working in the school building during school hours.” Chaperones were expected to supervise students both in the lodge and on the slopes.
Another common criteria that courts use is in determining whether an activity is “voluntary” is how beneficial it is to the employer and whether it furthers the employer’s interests. In this case, the court found that it did: “…the ski club’s trips benefited the city by furthering the school’s educational mission.”
Of course, nothing is ever simple with workers’ comp – there are 50 different flavors, so every state law may have its own particular nooks and crannies related to these issues. Andrew G. Simpson has an excellent article on ‘Forced Fun’ and related workers’ compensation problems, in which he discusses variations in state laws.
Other posts related to the issue of “mandatory fun”:
Posts Tagged ‘volunteers’
MA Supremes: teacher chaperoning ski trip due workers comp
Tuesday, December 15th, 2009The Cost of Volunteers
Wednesday, February 23rd, 2005In case you haven’t noticed, the Insider cannot resist conundrums. We like to explore the ragged edges where conflicting views of reality play out their destinies. Which leads today to the interesting topic of volunteers. Are volunteers ever considered employees for the purposes of workers compensation? Are employers liable for the actions of their volunteers, just as they are for the actions of employees?
This blog was triggered by a recent case in Wisconsin, where a volunteer for Christ King church was delivering a statue of the Virgin Mary to a parishioner. In her haste to do the good deed, she ran a redlight and crashed into the vehicle of one Hjalmar Heikkinen, an 82 year old barber. Heikkinen suffered permanent paralysis. In the perennial search for justice (and deep pockets), his attorneys included the church in his suit, under the theory that the volunteer driver was actually their “employee.” It’s basically the same legal principle that says a private delivery business can be held liable for one of its employees who causes a crash while driving for work.
Plaintiff attorneys zeroed in on several lines in the church’s insurance policy, which indicated that volunteers doing church work are explicitly covered. Church attorneys noted the Legion of Mary meets and conducts its business without church guidance, but the other sides’ filings said the Legion of Mary was chartered at Christ King in 1968 with the help of a parish priest and noted the group was listed in several church publications.
At this point, the jury has awarded Heikkinin $17 million. How much personal liability coverage do you suppose the volunteer had under her auto insurance? Is it any wonder that the plaintiff attorneys sought to call in a higher authority?
Volunteers under Workers Compensation
Some states recognize the rights to workers compensation for volunteers, especially when it comes to volunteer firefighters. Some states, such as California, give employers a choice of whether or not to include volunteers. The University of California at Northridge has opted to cover volunteers for work related injury, even though they are not required to do so. I think it’s the right choice, given that it probably doesn’t cost them anything to do it. Because comp premiums are based upon payroll, and because the volunteer payroll by definition is zero, adding the volunteers does not cost them anything. In addition, it creates the same “exclusive remedy” path for volunteers that exists for regular employees, so injured volunteers cannot bring suit against the university for work-related injuries.
Even though volunteers do not make any money, if they suffer serious injuries in the “course and scope” of their volunteer efforts, they may try to assign a dollar value to the services, in order to come up with an indemnity payment. This is an issue that many hospitals — with their huge cadres of volunteers — must face from time to time.
Liability for the Actions of Volunteers
Our Wisconsin saga does not involve comp coverage for the volunteer (although she may opt to file a comp stress claim, after all she has gone through!). What’s at stake is liability for the actions of a volunteer. In this case, the insurance policies appear to explicitly include volunteers. In any event, I would surmise that the same issues arise here as with independent contractors: who controls the work? If the employer controls how the volunteer work is carried out, I expect that liability will follow. In the case of the Wisconsin church, you could argue that they have an obligation to check the driving records of any volunteer who drives as part of their donated work. This is a can of worms, indeed!
One of the best summaries of the issues for churches can be found at a United Church of Christ website. In the meantime, institutions relying on the services of volunteers to carry out their work should keep in mind the first law of capitalism: there is no such thing as a free lunch.
