Legal Analysis

Implications of the Kickball Injury Case

Employers must clearly establish whether recreational or social activities are voluntary or required aspects of employment.
By: and | September 4, 2014

The South Carolina Supreme Court recently issued an opinion finding an injury compensable under the South Carolina Workers’ Compensation Act that occurred during a company sponsored kickball game.

The Case

In Whigham v. Jackson Dawson Communications, 2014 WL 4212965 (S.C. Aug. 27, 2014), the claimant (Whigham) proposed the idea of having a company kickball game to his supervisor, who agreed and authorized Whigham to set it up. Whigham organized the game, promoted it, and encouraged attendance by other employees. During the game, Whigham sustained an injury that ultimately required a total knee replacement.

In prior cases involving the compensability of injuries sustained during recreational or social activity, the South Carolina Supreme Court has required a showing that the event was within the course of employment in the one of the following ways: (1) the event occurred on the employer’s premises during a lunch or recreation period as a regular incident of the employment; (2) the employer, expressly or impliedly, required participation; or (3) the employer derives substantial direct benefit from the activity.

Court Findings

In Whigham, based on the particular facts of the case, the Court found that while the event in general was voluntary and not required as part of employment, it was impliedly required as to Whigham himself.

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The Court found that Whigham was expected to attend as part of his professional duties based, in part, on the testimony of the employer that he would not have expected Whigham to not show up after all the work he had done setting it up. Whigham himself testified that he would have seen it as “a reflection of poor management” for him to not show up. Based on this testimony, the Court found that Whigham’s role set him apart from other employees and rendered the organizing and attending the event to be part of his employment.

Two justices dissented because, in their view, even if attendance at the event was part of Whigham’s employment, his physical participation in the kickball game was not.

Takeaway

This case underscores the importance for employers of clearly establishing whether such recreational or social activities are voluntary or required aspects of employment. This is doubly true now for any personnel involved in the planning or organizing of social events.

If an employer undertakes to organize such events, it is important to communicate clearly whether attendance is voluntary. The duties of organizers should also be clearly communicated and, to the extent attendance is deemed mandatory for those employees, it should be made clear whether attendance also requires participation in any sporting or recreational activities.

As with any other employment policy, communicating these matters in writing is ideal so long as the employer does not contradict these policies through other communications or actions.

Dan Addison is a partner at Hedrick, Gardner, Kincheloe & Garofalo, LLP. He concentrates on representing businesses in occupational disease and complex workers’ compensation litigation matters. Lee Dixon is an attorney with Hedrick, Gardner, Kincheloe & Garofalo, LLP. His practice focuses in the areas of civil litigation and workers’ compensation. They can be reached at [email protected]

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