By Michael Dayton
North Carolina Lawyers Weekly
Copyright 2007 Dolan Media Newswires
An EMT who was injured in a go-cart at a fun day outing for Salter Path Fire & Rescue volunteers was not entitled to workers’ compensation, the Supreme Court has ruled.
The accident did not arise out of the worker’s employment the court said.
Weighing against benefits: the EMT’s attendance was voluntary and she was engaged in an activity not normally associated with her job.
The decision in Frost v. Salter Path Fire & Rescue (North Carolina Lawyers Weekly No. 07-06-0175, 19 pages) reverses a divided Appeals Court panel, which ruled the EMT had suffered a compensable injury. Justice Edward Thomas Brady wrote the opinion. Justice Patricia Timmons-Goodson dissented.
“If the EMT had been delivering a prepared speech and fallen off the stage, that would have been compensable,” said Raleigh attorney Jonathan Anders, who represented her employer. “But she was racing a go-cart.
“If the Supreme Court had found this activity to be in the course and scope of employment, it would have created new law,” he said. “That would have really opened up a can of worms not just in volunteer fire department cases, but in all kinds of cases. “
The EMT, Tammy P. Frost, had served on and off for 20 years as the volunteer emergency medical services captain for Salter Path Fire & Rescue.
Frost’s injuries occurred during “Fun Day,” a recreational outing paid for by the local community to show its appreciation for the rescue squad. The outing, held at Lost Treasures Golf and Raceway in Salter Path, was funded from a special account.
Frost was injured when she collided with another go-cart. She was diagnosed at a local hospital with cervical strain and released. According to the opinion, Frost complained of unresolved neck and back pain that prevented her from working.
This case law came into play in Frost:
A 1964 Supreme Court opinion, Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643, held: “Where, as a matter of good will, an employer at his own expense provides an occasion for recreation or an outing for his employees and invites them to participate, but does not require them to do so, and an employee is injured while engaged in the activities incident thereto, such injury does not arise out of the employment.”
A 1980 case, Chilton v. Bowman Gray Sch. of Med., 45 N.C. App. 13, 262 S.E.2d 347, 348, articulated a six-question analysis from Larson’s treatise in deciding whether a similar injury arose out of employment:
- Did the employer in fact sponsor the event?
- To what extent was attendance really voluntary?
- Was there some degree of encouragement to attend evidenced by such factors as: a. taking a record of attendance; b. paying for the time spent; c. requiring the employee to work if he did not attend; or d. maintaining a known custom of attending?
- Did the employer finance the occasion to a substantial extent?
- Did the employees regard it as an employment benefit to which they were entitled as of right?
- Did the employer benefit from the event, not merely in a vague way through better morale and good will, but through such tangible advantages as having an opportunity to make speeches and awards?
In Frost, the full commission allowed benefits and the Appeals Court affirmed, holding Frost qualified for benefits under a Chilton analysis.
Competent evidence supported the commission’s finding that the department put on and paid for the outing, according to the Appeals Court opinion, and the plaintiff testified that the defendant’s chief urged her to attend and that she intended to make a speech to volunteers at the event. The commission also found that the event served the purpose of encouraging volunteers to continue their participation with the rescue squad, the Appeals Court said.
The Supreme Court reversed, expressly rejecting the Chilton analysis.
Wrote Justice Brady, “While the Chilton factors may serve as helpful guideposts in this inquiry, this Court has never recognized these factors as controlling and we decline to do so here. “
The court also distinguished a case where benefits were allowed for a Boy Scout executive injured on a fishing trip. In Rice v. Uwharrie Council Boy Scouts of America, 263 N.C. 204, 139 S.E.2d 223 (1964), the findings from the Industrial Commission permitted the inference that participation in the fishing trip was required, in part to make the executive better qualified in his work.
Wrote Justice Brady in Frost, “Unlike Rice, plaintiff’s participation was not required in the case sub judice. Plaintiff was invited to attend the event, but in no way was she required to do so. Rice is further distinguishable, as the plaintiff in that case was engaged in activities of the sort one would normally expect of the youth program, Boys Scouts of America, which emphasizes outdoor activities.
“Defendant Salter Path Fire & Rescue is not a social organization, and one would not normally associate involvement in amusement park type recreational activities with the duties and functions inherent in the work required of an EMT,” Justice Brady wrote.
Dissent
Justice Timmons-Goodson dissented, saying the majority stated the proper standard of review but failed to follow it.
When reviewing commission decisions, appellate courts examine whether any competent evidence supports the findings of fact and conclusions of law.
“In my opinion, there was sufficient evidence in the record to support the findings of fact and to sustain the commission’s conclusions of law,” she wrote.
Among those findings:
“Notwithstanding that attendance was voluntary, Salter Path did keep attendance for the event.”
“The employer received a tangible benefit from this event in that it helped to improve morale of volunteers and it provided an opportunity for leaders of the fire and rescue unit to encourage volunteers to continue their participation as volunteers. “
“The volunteers viewed Fun Day as a benefit of their voluntary employment.”
“Plaintiff had signed in as ‘on duty’ prior to her injury and had intended to give a pep speech thanking the EMS volunteers and encouraging their continued participation with Salter Path just as she had done at the previous Fun Day.”
Justice Timmons-Goodson said the instant case was more comparable to Rice than to Perry.
“In Rice, this court found that '[t]he evidence and findings permit the inference the employer impliedly required participation in the scheduled activities not merely for the purpose of furnishing amusement and entertainment for the employee.’ Similarly, here, the commission’s findings permit the inference that the event was not wholly voluntary and that the event benefited Salter Path in a tangible way.”