Picnicking employee loses wrestling match and claim
Raymond C. Persin tried this case before Arbitrator Gomora in DeKalb. Richard Orsborn vs. Sandusky & Son, No. 02 WC 30768. The Petitioner was arguing that his attendance at a company picnic was mandatory and, consequently, his claim was compensable. Neither the Arbitrator nor the Commission believed the circumstances as stated by the petitioner and found that this was a voluntary activity and therefore, the petitioner’s injury did not arise out of or in the course of his employment.
Petitioner was a laborer for a construction company. The respondent held a company picnic on a Saturday for employees and their family members. The picnic took place in a forest preserve. The business was closed on Saturdays. Petitioner arrived early at the picnic and helped unload tables and food. Petitioner claimed that he was “ordered” by his boss to help unload the food and set up tables. Petitioner’s boss testified that petitioner volunteered to help. Petitioner testified that towards the end of the day a co-employee was giving the boss a hard time by swearing at him and calling him names. The boss told petitioner “take care of my light work” relative to the co-employee. Petitioner testified that he took this to be an order from his boss to remove the co-employee from the area to avoid any possible disturbance or harm to others. While doing so the petitioner was grabbed from behind by the co-employee, he fell to the ground and fractured an ankle. The petitioner argued that the co-employee was intoxicated at the time.
Petitioner’s boss testified that just before the incident the petitioner and the co-employee were giving each other a hard time, calling each names, and horsing around. The boss testified that the co-employee began swearing and calling the boss names trying to get him involved in the horseplay. The boss did not wish to get involved with the horseplay and therefore told the petitioner to “take care of my light work”, referring to the co-employee. According to the boss the petitioner and the co-employee continued their horseplay and the petitioner injured his ankle.
The co-employee testified that he and the petitioner were horsing around, swearing and calling each other names. He testified that this is normal between workers in the construction industry. When the boss said “take care of my light work,” the co-employee took this completely as a joke. He and the petitioner continued to horseplay, the petitioner attempted to pick him up, lost his balance, and fell fracturing his ankle.
The medical records from treatment immediately following the incident indicated that the petitioner hurt himself playing football and made no reference to any type of work related injury. The Arbitrator found that there was no injury that arose out of or in the course of the petitioner’s employment. The Arbitrator found that the incident took place on a day in which the company was closed, it did not take place on company premises, and the participation in the picnic was completely voluntary. The Arbitrator found that the statement made by the boss was purely in a joking fashion and was not meant to be any type of order or direction on the part of the boss to the petitioner that could be construed as creating a benefit to the business of the respondent. The Arbitrator found that the statements of the boss, taking into account the circumstances, had only one reasonable meaning.
The co-employee was a resident of the State of Arizona at the time of the trial. The respondent paid the traveling expenses to bring in the co-employee to testify live at trial to help affirm the testimony of the boss and to avoid a one witness vs. the petitioner situation at trial. By bringing in the affirming witness, the petitioner’s credibility was lessened and helped to significantly sway the decision of the Arbitrator to the respondent.
In front of the Arbitrator and before the Commission the petitioner argued that he had been ordered or assigned by his employer to undertake the activity. Petitioner argued that performing the activity took him outside of the exclusion in the Illinois Workers’ Compensation Act relative to participation in voluntary recreational activities. On review, the Commission upheld the decision of the Arbitrator. (It is noted that at trial, the Arbitrator also found that at the time of the incident the petitioner was not an “employee” of the respondent. The Commission reversed this aspect of the award finding that although the petitioner was not working at the time, he was an “employee” in attendance at an employee picnic.)
