concurring.
“We should not forget as judges what we know as intelligent human beings.” — Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 341, 49 S.W.3d 126, 140 (2001).
I write separately to state that employers and their carriers should fully expect workers’ compensation law to cover injuries to employees on company retreats and similar outings. It is disingenuous for an employer to set up a company outing, require that its employees attend said outing, then refuse to compensate an employee for injuries sustained at the outing. The denial of benefits is more egregious in the present case because appellant was responsible for planning the very activity that led to her accident. Put simply, employees may be engaged in employment services and covered under workers’ compensation law even outside the confines of the actual workplace.
Recreational or social activities, such as company retreats, are within the course and scope of employment when “[t]he employer, by expressly or impliedly requiring participation, . . . brings the activity within the orbit of the employment.” Arthur Larson, Larson’s Workers’ Compensation Law, § 22.01, at 22-2. As Professor Larson elaborates:
The most direct way of associating the recreational or social activity within the employment is to make its performance an actual part of the job. As employment-related recreation and teams become more elaborately organized, a certain amount of work has to be done to keep the play going. So when an employer ordered the claimant to organize a ball team, he was held to have made that activity a part of his duties for which the claimant was employed. The same result was reached as to a trip by the captain of the bowling team to confer with the president of the league. Other examples of recreation-associated activities that are more like hard work to the actor would include those of a volunteer fireman who was injured putting up Christmas decorations or tending bar at an open house pursuant to orders of the firechief, of a country club corporation president participating in a fund-raising golf tournament and banquet, and of a football coach traveling to observe a football game in which his team was not playing.
Larson, supra, § 22.04[1][b], at 22-11 — 12 (footnote references omitted). Professor Larson references a number of cases in the above paragraph: Higgins v. Ronkonkoma Fire District, Volunteer Fire Co., 439 N.Y.S.2d 459, 81 A.D.2d 721 (1981) (injuries suffered by a volunteer firefighter who had slipped and injured his wrist while acting as a bartender at a open house commemorating the district’s seventy-fifth anniversary held to be compensable; the fire chief ordered the firefighter to be at the festivities in uniform and to act as a host); Huber v. Eagle Stationary Corp., 4 N.Y.S.2d 272, 254 A.D. 788 (1938) (injuries suffered by an employee who was struck in the head with a baseball held to be compensable; the employee was ordered to organize and manage the team); Highlands County School Board v. Savage, 609 So. 2d 133 (Fla. Ct. App. 1992) (injury sustained by a teacher in a charity teacher-student basketball game to be compensable; the teachers were required to participate in the game as either spectators or players held to be compensable); Trent v. Employers Liability Assurance Corp., 178 So. 2d 470 (La. Ct. App. 1965) (holding that a football coach who was en route to a football game in which his team was not playing was engaged in employment services when school policy encouraged coaches to attend other games when they were free).
The instant case follows this established precedent. The cliff-jumping activity was contemplated by her employer and was specifically included as an activity. Appellant’s direct supervisor was involved in the activity and encouraged her to participate. Appellant was expected to be an “employee” at the retreat. She was the coordinator for the entire event. She would have been required to resolve any issues at the office via cell phone. Her employer received a benefit by her attendance, as not only was she there in an effort to build team morale at the office, but she would have also been there (had she not been injured) to discuss the current and future status of her department. Out of the six factors this court outlined in Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001), five of them are applicable. Appellant was facilitating her employer’s interests while at the retreat; she was engaged in an activity that was an expected part of her employment; the activity constituted a known (in fact, planned) departure from her work activities; she was compensated while at the retreat; and she would have been expected to cease what she was doing to advance employment objectives. In other words, appellant was clearly engaged in employment services at the time of her injury.
In Matlock, this court remarked, “We should not forget as judges what we know as intelligent humans.” Id. at 341, 49 S.W.3d at 140. Company retreats and similar outings are a popular way of building morale at the workplace. Neither the Commission nor this court should endorse the argument that employees who participate in these activities, particularly when they are mandated by the employer, are not engaged in employment services when they are injured while at the activity. To decide otherwise not only goes against the law, but common sense as well.