South Carolina Employee Scores Workers’ Compensation Win for Kickball Injury

By | August 29, 2014

The South Carolina Supreme Court ruled this week that an employee injured during a company kickball game is entitled to workers’ compensation benefits.

The court found that Stephen Whigham’s kickball injury was covered by workers’ compensation because he was “impliedly required” to participate in the game by his employer, Jackson Dawson Communications, a public relations firm that desired to “cultivate an enjoyable work atmosphere” and encouraged the kickball game.

The case reached the state’s high court on an appeal of a decision by the state’s workers’ compensation commission that denied Whigham’s claim because it found the injury did not arise out of or in the course of his employment.

The Supreme Court decision written by Justice Kaye G. Hearn notes that when Whigham proposed the idea of a kickball game to his boss, Kevin Johnson, he was told to move forward with the game. Johnson authorized Whigham to spend $440 of company funds for venue rental, T-shirts, drinks and snacks.

The game took place on a Friday afternoon at 3:00 with roughly half of Jackson Dawson’s employees in attendance.

Whigham was injured when, after jumping to avoid being forced out by an opponent, he landed awkwardly on his right leg, shattering his tibia and fibula. He eventually underwent two surgeries and his doctor informed him he would need a knee replacement.

In denying the claim, a single workers’ compensation commissioner found he was not required to attend the event and there was no benefit beyond general employee morale to the company. That decision was later affirmed by the full commission, then appealed by Whigham.

An injury arises out of employment when there is a causal relationship between the conditions under which the work is to be performed and the resulting injury, according to the court. One factor weighed in deciding whether an activity is arising from employment is whether the employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment.

The high court agreed with Whigham who argued that he was impliedly required to attend the kickball game he organized and that it became part of his services; therefore, the event was brought within the scope of his employment.

“Although the event may have been voluntary for company employees generally, the undisputed facts unequivocally indicate Whigham was expected to attend as part of his professional duties,” the court wrote.

In determining whether an employee is required to attend an event a directive is not necessary “if the employee is made to understand that he is to take part in the affair,” the court said.

The court found that the testimony of both Whigham and his boss, Johnson, established that Whigham’s participation in the event was expected rather than voluntary.

Asked if he felt the event was voluntary for him, Whigham responded: “I think it would have been a reflection of poor management if I decided not to show up.”

When asked if he would have considered it irresponsible of Whigham not to be at the game, his boss, Johnson, stated: “I don’t know. I would have thought—he wouldn’t do that. I’ll just say that. He wouldn’t do that. . . . It would have been just unexpected, unbelievable. I mean, you don’t just plan something and then not show up for it.”

“This fact sets Whigham’s participation apart from that of all the other employees. It is undisputed that Whigham felt compelled to go and his boss would have considered it a dereliction of duty to miss it,” Hearn wrote.

The court also noted that while Whigham’s job description did not include producing team-building events, his doing so reflected the company’s desire to create a certain type of work atmosphere. “A specific act need not be designated in an employee’s job description to be compensable,” the court said.

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