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Arising Out Of, Or In The Course Of Employment

We will conclude our discussion from my last post regarding the sometimes elusive concepts of injuries “arising out of” and “in the course of” employment by taking a look at a rather unusual situation which the Virginia Workers’ Compensation Commission (VWCC) addressed in a recent opinion. The claimant in Joshua White v. Virginia Beach Public Schools, JCN: VA000010500467 (Dec. 9, 2016), was an elementary school physical education teacher. Apparently, the school at which Mr. White taught held an annual basketball game in which the fifth-grade students (presumably the oldest students at the school) played a basketball game against the staff of the school. The game was played in the school’s gymnasium during regular school hours. At this point in the narrative and as we learned from the preceding blog, our analysis should indicate that we can establish that the injury occurred “in the course of” Mr. White’s employment with the school since the injury occurred during the hours of his regular employment and on the premises of his employer. The key to this case now becomes whether the injury “arose out of” Mr. White’s employment duties with the school.

Mr. White testified in a hearing conducted by a Deputy Commissioner of the VWCC that following the conclusion of the basketball game, his students challenged him to race his 22-year-old student teacher across the gymnasium. White accepted the challenge. By way of explanation, he testified, “I get very active with my students, so whatever I expect them to do, I do myself. And we do a lot of racing… with the kids just to get them active and excited.” Id. at 3. Given that he was racing against elementary students (ages 6 to 10), the teacher probably won the great majority of races, and White candidly admitted that the students wanted to see him lose which led them to ask the student teacher to challenge Mr. White to race the width of the gym. White obliged the students by accepting the challenge. At the end of the race, White put out his left arm to stop himself from running into the wall. Unfortunately, when he attempted to stop himself, he hyperextended his left arm.

At this stage of the narrative, we will pause to allow the reader to review the facts in this case, and to offer an opinion as to whether or not Mr. White has shown that his accident arose out of his employment. Certainly, no one in authority at the school had instructed him to agree to the race and to run it. I have serious doubts that a challenge-race with his 22-year-old student teacher was listed in the course outline or the class curriculum for that day. It is certainly arguable that White agreed to the race for personal reasons rather than for professional ones. Lastly, there are a number of cases from the VSC, the Virginia Court of Appeals (VCA), and the VWCC that have held that physical activity, including sports, outside of normal working hours constitutes a personal choice and not an accepted and normal activity. For example, in Mullins v. Westmoreland Coal Co.,10 Va. App. 304, 391 S.E.2d 609 (1990), the claimant was injured in a basketball game which took place on the employer’s premises prior to the beginning of the work shift. The claimant argued that the basketball games were a regular activity which was well known to the employer which, by permitting the games to continue to occur on the work premises had condoned the games and accepted them as part of the normal activity of the business day.[1]

The VSC stated in its opinion that “Claimant’s injury was the direct result of his taking a risk of his own choosing, independent of any employment requirements, and one that was not an accepted and normal activity at the place of employment.” Id. at 308, 391 S.E.2d at 611. Similarly, the VWCC held that an employee who was injured while tossing a football during a break was not in the course of his employment, Mabe v. Visidor Co., 59 O.I.C. 178 (1980), nor was a waiter who was injured using the resort’s pool during a break between serving meals, Shaffer v. Tides Inn, 36 O.I.C. 425 (1954).

Those of you who have concluded that our phys. ed. teacher is, likewise, out of luck on his claim must be feeling confident in your choice right now. Commissioner Marshall’s opinion on behalf of the full Commission seems to point in that direction, but like a good mystery novel, the reader must persevere through to the end. The opinion concludes that the claimant’s activity with the students was an accepted and normal activity of his employment. It happened during school hours, and, just like the basketball game where other faculty members were engaged in physical activity with the students, the footrace “advanced the virtues of physical activity and modeled good sportsmanship for student observers.” White, supra at 4. The Deputy Commissioner found that Mr. White’s injury to his left arm both arose out of and happened in the course of his employment. Therefore, the injury was compensable, entitling Mr. White to lifetime medical benefits for treatment which is causally related to the original injury and indemnity benefits for loss of income due to the injury.

I hope that you have found this initial blog post to be of some interest to you whether you are engaged in practicing law in the workers’ compensation field, or, perhaps, you are an injured worker yourself looking for some assistance in trying to figure out whether you have a legitimate claim of your own. Even if you were just browsing the internet and something in the blog caught your attention, welcome. I invite you to check back with me periodically for new blog posts which may discuss workers’ comp law, the practice of law in general, or anything else which may pique my interest from time to time.

[1] My colleagues in the defense bar will undoubtedly think of Virginia Code section 65.2-101 which excludes from workers’ comp coverage any injury which results from an employee’s voluntary participation in employer-sponsored off-duty recreational activities which are not part of the employees work duties. However, that statute does not apply to the scenario we are discussing because Mr. White’s injury, unlike Mr. Mullins’, occurred during normal business hours.

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