Grather v. The Gables Inn
Annotate this Case
Grather v. The Gables Inn (98-021); 170 Vt. 377; 751 A.2d 762
[Opinion Filed 18-Feb-2000]
[Motion for Reargument Denied 14-Mar-2000]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 98-021
Joseph W. Grather Supreme Court
On Appeal from
v. Department of Labor &
Industry
The Gables Inn, Ltd. May Term, 1999
Steve Janson, Commissioner
Mark L. Stephen, East Montpelier, for Plaintiff-Appellant.
John A. Serafino and Tammy Besaw Denton of Ryan Smith & Carbine, Ltd.,
Rutland, for Defendant-Appellee.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
DOOLEY, J. Claimant Joseph Grather appeals from a Vermont Department
of Labor and Industry Commissioner's decision denying him workers'
compensation benefits for an injury sustained while skiing. The
Commissioner has certified two question for our review: (1) whether
claimant suffered an injury by accident arising out of and in the course of
employment with the Gables Inn while skiing at Stowe on March 17, 1994,
and (2) whether the amateur sports exclusion of 21 V.S.A. § 601(14)(B)
bars this claim. (FN1) Because we find that claimant's injury
arose in the course of employment and that the amateur sports exclusion
does not bar this claim, we reverse.
During the fall of 1993, claimant went to Stowe hoping to find a job
for the winter that would enable him to ski. When he inquired at the
Gables Inn, he learned that it had just advertised for a position as a
"ski bum." The "ski bum" was expected to live at the Gables, prepare and
serve breakfast in the mornings, and serve food and drinks at "apres ski"
and dinner in the late afternoons. The position also entailed helping out
with other chores, such as bringing in wood and shoveling snow. The
compensation was $100 per week, room and board, tips, and a restricted ski
pass that allowed the "ski bum" to ski Stowe Mountain, but only during the
middle of the week. The job was designed to leave time free to ski
between late morning and 4:00 P.M. in the afternoon. Claimant applied for
the position and was hired within a few days. When he arrived for work,
his employer encouraged him to become acquainted with the town and the
slopes. Throughout the winter, claimant skied during his time off, using
his "ski bum" pass. On Thursday, March 17, 1994, claimant worked the
breakfast shift, then went skiing, where he crashed into a tree and
incurred severe injuries.
Claimant was disabled for some time, and unable to continue his work
at the Gables. He filed a claim for workers' compensation, alleging that
his skiing injury arose out of and in the course of his employment because
his skiing at Stowe Mountain benefitted his employer. See 21 V.S.A §
618(a) (personal injury compensable by employer if worker receives a
personal injury by accident "arising out of and in the course of his
employment").
I. Course of Employment
We consider first whether claimant's injury occurred during the course
of his employment. In analyzing this question, the Commissioner applied
the three-alternative test for injuries incurred during recreational or
social activities outlined in 2 A. Larson & L. Larson, Workers'
Compensation Law § 22.01 (1997). According to Larson, recreational or
social activities are within the course of employment when:
(1) they occur on the premises during a lunch or recreation period
as a regular incident of the employment; or (2) 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; or (3) the employer derives
substantial direct benefit from the activity beyond the intangible
value of improvement in employee health and morale that is
common to all kinds of recreation and social life.
Id. § 22.01. Quickly rejecting the first and second alternatives as
inapplicable in this case, the Commissioner focused on the third
alternative. The Commissioner found the claim failed there as well,
because the Gables received no benefit from providing its employees with a
ski pass beyond a general boost in morale. The Commissioner's inquiry was
limited to whether the employer received any advertising or business
advantage from claimant's skiing with the pass provided by the employer.
We concur with the Commissioner that the first two alternatives of the
Larson test are inapplicable. However, we conclude that a careful
analysis of the third alternative reveals that the employer did receive a
benefit sufficient to bring the claimant's skiing within the course of his
employment. The Larson test categorizes cases to show several ways an
employer can derive benefit from recreational or social activities to
satisfy the third alternative. See id. § 22.05. For example, if an
employee engages in social activities to entertain a customer, the employer
can
benefit from enhanced sales, see id. § 22.05[1]; if an employer sponsors a
sports team, the employer can benefit through income from ticket sales,
from the advertising value of having the name of the business on the
players' uniforms, or from media publicity about the team and its sponsor,
see id.§ 22.05[2]; and, most importantly for this case, if an employer
provides recreational opportunities as an inducement to attract employees,
the employer benefits from the labor it is able to attract, see id. §
22.05[5].
Here, the employer benefitted from the recreational opportunities it
provided by inducing employees to accept employment. The leading case for
this kind of employer benefit is Dorsch v. Industrial Commission, 523 P.2d 458 (Colo. 1974), see Larson & Larson, supra § 22.05[5], a case with facts
essentially indistinguishable from those before us. In Dorsch, the
employee was a bartender in a ski area. In addition to an hourly wage, he
received free meals and a ski pass. He was injured while skiing with the
pass. The court held that he was acting within the course of his
employment when he was injured and extended workers' compensation benefits
to him. Dorsch, 523 P.2d at 460.
In reaching this conclusion, the court provided a list of factors
which, it held, should govern whether the employee acted in the course of
his employment:
(1) the extent to which the employer derives substantial benefit from
the policy - beyond the intangible value of improvement of
employee morale; (2) the extent to which the recreational activity
represents compensation for employment; (3) the extent to which
the obligations of employment create the special danger which
precipitates the injury; (4) whether the use of the recreational
activity was an inducement for employment; (5) whether the use of
the recreational facility was originally contemplated by the parties
at the time of employment.
Id. The court found (1) the ski pass was part of the employee's
compensation, (2) the use of the
ski pass was contemplated by the parties from the beginning of employment,
(3) the activity was an inducement for employment, and (4) the employer
benefitted from offering a ski pass as part of the compensation it paid to
its employees by being able to attract employees to odd-hour and
remote-area employment. Id. It concluded that the existence of these four
elements brought the activity within the course of employment. Id.
As in Dorsch, the ski pass here was part of the employee's
compensation, and the use of the ski pass was contemplated by the parties
from the beginning of employment. The ski pass was an inducement for
employment in the "ski bum" position.(FN2) The Commissioner found that
claimant hoped to get a job that would enable him to ski, and claimant
testified that he accepted the position because the hours, location, and
provision of a ski pass gave him the time and opportunity to ski. The
employer testified that the ski pass "is an inducement to employment for
some people," and that it "[c]learly ... appealed to [claimant] as one
potential employee." As in Dorsch, the fact that the ski pass was an
inducement for employment means that the ski pass benefitted the employer
beyond the intangible benefit of improving employee morale. Indeed, the
real importance of the Dorsch analysis to this case is that the same facts
that support a finding that the ski pass was an inducement, also support a
finding that the employer gained a benefit from the recreational activity.
Employer argues that Dorsch is distinguishable because the claimant in
that case was
injured on the premises of his employer, which owned and operated the ski
area. Although employer identifies a factual distinction from Dorsch, the
fact identified is not relied upon by the Dorsch court, nor is it part of
the Larson test. See 2 Larson & Larson, supra § 22.01. Indeed, the fact
that an injury occurred on an employer's property may bring a case within
Larson's first alternative test, without the special employer benefit that
is present here and emphasized in Dorsch. See id. We conclude that
employer has raised a factual difference which is irrelevant to our
analysis and our conclusion that claimant was acting in the course of his
employment when he was injured.
Employer also emphasizes that the third Dorsch factor - "the extent to
which the obligations of employment create the special danger which
precipitates the injury," Dorsch, 523 P.2d at 460 - is absent here. On
this basis, it distinguishes two other cases relied upon by claimant,
Reinert v. Industrial Accident Commission, 294 P.2d 713 (Cal. 1956) and
Rausch v. Workmen's Compensation Appeals Bd., 79 Cal. Rptr. 148 (Cal. Ct.
App.1969). In both cases, the claimant was a camp counselor whose duties
included horseback riding. Each claimant was injured in a horseback
riding accident while off-duty and off-premises. In each case, the court
found relevant that the employer had already assumed the risk of injuries
to its employees from horseback riding by including that activity in their
duties, creating a nexus between the claimant's employment
responsibilities and the activity causing the injury. See Reinert, 294
P.2d at 716-17; Rausch, 79 Cal. Rptr. at 154. This nexus is not present
here; none of claimant's duties at the inn involved skiing. Nor was it
present in Dorsch, where claimant was a bartender.
The presence or absence of a nexus between claimant's employment
responsibilities and the activity causing the injury is only one of a
number of factors to consider. See Dorsch, 523 P.2d at 460; see also Wallace v. Shade Tobacco Growers Agric. Ass'n, 642 F.2d 17, 20 (1st Cir. 1981) (under Mass. law, determination of whether
injury arose out of and in the course of employment based on a number of
factors, none of which are necessarily determinative). We agree with
employer that the horseback riding cases, if we were to follow them, would
not command that claimant receive compensation in this case. Following
Dorsch, however, we conclude that the absence of a nexus between
claimant's employment responsibilities and the activity out of which the
accident arose is not determinative in this case.
Finally, employer urges us to defer to the Commissioner's fact-finding
and interpretation of the workers' compensation statute. We presume the
Commissioner's decision is valid and overturn it only upon a clear showing
to the contrary. See Wood v. Fletcher Allen Health Care, 169 Vt. ___, ___
, 739 A.2d 1201, 1204 (1999). We defer to the Commissioner's construction
of the workers' compensation statute absent a clear indication of error.
See id. However, we construe the workers' compensation statute liberally,
consistent with its remedial purpose. See Close v. Superior Excavating
Co., 166 Vt. 318, 324, 693 A.2d 729, 732 (1997).
The Commissioner used the Larson tests, and we find no clear
indication of error in that choice. See id. at 323-24, 693 A.2d at732.
He failed, however, to consider the full extent of the applicable test
when he did not consider the employer benefit that resulted from using the
ski pass to induce claimant to take the "ski bum" job. We cannot affirm a
construction of the statute that is "unjust or unreasonable" on the
circumstances presented. Clodgo v. Rentavision, Inc., 166 Vt. 548, 550,
701 A.2d 1044, 1045 (1997). We conclude that the incomplete application of
the Larson test was unreasonable in this case.
We recognize, as employer argues, that we overrule factual findings of
the Commissioner
only "where those findings have no evidentiary support in the record."
Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533, 687 A.2d 465, 467-68
(1996). The relevant facts in this case are, however, largely undisputed,
and the issue is one of law. Our deferential review of the Commissioner's
findings of fact does not alter the result.
III. Amateur Sports Exclusion
Having found that claimant's injury arose out of and in the course of
his employment within the meaning of 21 V.S.A. § 618, we must now consider
the second certified question, whether the amateur sports exclusion
operates to bar this claim. See 21 V.S.A § 601(14)(B). Section
601(14)(B) excludes from coverage "a person engaged in amateur sports even
if an employer contributes to the support of such sports."
In holding that the amateur sports exclusion did not apply in this
case, the Commissioner relied on an earlier Department of Labor and
Industry decision, Nutbrown v. Roadway Express, Op. No. 2-93 WC (June 7,
1993), which examined the legislative history of the exclusion. Nutbrown
concluded that the exclusion represented the Legislature's response to a
New York case in which a little league baseball player obtained workers'
compensation coverage for a game injury because he was playing for a team
sponsored by the employer. It held that the exception applies only to
members of an amateur sports team sponsored by the employer, such as
company softball, bowling, or basketball teams. The Commissioner in this
case held that "[b]ecause the claimant was not involved in any employer
sponsored team activity at the time of the accident, the statutory
exception does not apply here."
Employer argues that limiting the exclusion to team sports is
inconsistent with the plain
meaning of the language, which can not be overcome by the scant legislative
history uncovered in Nutbrown. We reiterate that we must defer to the
Commissioner's interpretation of the workers' compensation law absent a
clear indication of error. Wood, 169 Vt. at ___, 739 A.2d at 1204. We
also reiterate that we construe the statute liberally in favor of
eligibility. See Close, 166 Vt. at 324, 693 A.2d at 732; see also Carter
v. Gugliuzzi, 168 Vt. 48, 53, 716 A.2d 17, 21 (1998) (where remedial
legislation has an express limitation, "we have generally declined to
expand the exception beyond its plain terms").
There are three distinctions between the situation described in
Nutbrown, which induced the Legislature to enact the exclusion, and the
facts before us: (1) claimant here was otherwise an employee of employer;
(2) claimant was not a member of a team sponsored by employer; and (3)
claimant was not part of a competition at the time of the injury. Employer
argues that the Commissioner relied only upon the second distinction, the
absence of an employer-sponsored team, and that this distinction is not
found in the statute. We might agree with this characterization of the
Commissioner's ruling if claimant had been involved in a ski race as an
individual, and the decision turned on the absence of a team. Instead, we
believe that the Commissioner relied upon both of the latter distinctions.
Claimant was injured while he participated in a recreational activity,
that broadly could be called a sports activity, but lacked the competitive
aspect normally associated with a sport. See Webster's Encyclopedic
Dictionary 960 (Lexicon Publications, Deluxe Ed. 1989) ("sport" means the
playing of games or participation in competitive pastimes involving
physical exertion and skill). That the Legislature intended a narrow
definition of sports - those involving an athletic competition - is shown
by its use of the modifier "amateur." See Sagar v. Warren Selectboard, 10
Vt. L.W. 339, 340 (1999) (in
construing statute we must look to whole statute and every part of it).
The distinction between amateur and professional sports is relevant to an
athletic competition in which the athlete might be paid money for a
performance. The Commissioner's decision is consistent with this
definition of "sports" as involving athletic competition. We defer to his
construction of the statute, a liberal construction in favor of
eligibility.
Reversed and remanded for an award of compensation consistent with
this opinion.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Although the employer argued in its brief that this Court lacks
jurisdiction because the Commissioner failed to issue certified questions,
the subsequent certification of these questions has rendered that issue
moot.
FN2. The dissent appears to argue that the claimant must show either (1)
the ski pass offer was necessary to get anyone at all to take the job; or
(2) the ski pass offer was necessary to get claimant to apply for the job.
Neither the Larson test nor Dorsch supports such a required showing. Like
all "inducements", the ski pass may or may not prove necessary for the
employer to attract the employee it wants. The point is that the employer
makes it part of its compensation package because it thinks it might be
necessary.
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Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 98-021
Joseph W. Grather Supreme Court
On Appeal from
v. Department of Labor &
Industry
The Gables Inn, Ltd. May Term, 1999
Steve Janson, Commissioner
Mark L. Stephen, East Montpelier, for Plaintiff-Appellant.
John A. Serafino and Tammy Besaw Denton of Ryan Smith & Carbine, Ltd.,
Rutland, for Defendant-Appellee.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
AMESTOY, C.J., dissenting. By ignoring the relevant factual findings
of the Commissioner of Labor and Industry in this case, the majority's
opinion exposes employers and insurers to workers' compensation claims for
recreational injuries incurred by employees. The rational response to
such exposure will be to eliminate from an employee's compensation any
benefit (e.g., health club membership; golf, ski, or swim passes, etc.)
that could conceivably be characterized as an "inducement to attract
employees" under the majority's open-ended test. Because I believe that
the unpredictability prompted by the majority's reasoning is neither
consistent with the remedial purpose of the workers' compensation statute
nor necessary when applicable law is applied to the facts of this case, I
respectfully dissent.
I do agree with the majority that "[t]he relevant facts in this case are .
. . largely undisputed." Ante, at 7. Indeed, it is the majority's
inexplicable inattention to the most salient facts that lies at the root
of my disagreement with its rationale. The Commissioner specifically found
that despite its job title, "the ability to ski was not a job requirement
[of the "ski bum" position] and non-skiers had held the job in the past."
Whatever the claimant's subjective "hope" that he could "get a job that
would enable him to ski," the objective fact is that it was not necessary
for the Gables to offer a ski pass to induce applicants to accept
employment. Employer testified that, in the past, the Gables had employed
persons who had accepted the "ski bum" position without taking the offered
ski pass and without being offered alternative compensation. Nor do the
facts as found by the Commissioner support the inference that an offer of
a ski pass was necessary to induce the claimant to apply for employment.
Indeed, the Commissioner found that the claimant was unaware that the
Gables had advertised a job opening when he applied for a position.
Without a sufficient factual basis to support a finding that the ski pass
was an inducement, it cannot be concluded that employer gained a benefit
from the claimant's off-the-job recreational activity.
The majority's reliance on Dorsch v. Industrial Commission, 523 P.2d 458, 460 (Colo. 1974), is similarly flawed. First, the employee in
Dorsch, unlike claimant here, was injured on the premises of his
employer's ski resort. Second, unlike the Gables' "ski bum" position,
which the Commissioner found had been filled by non-skiers as well as
skiers, the hearing officer in Dorsch specifically found that the ski pass
was an incentive to attract employees to the employer's ski area. Third,
the court in Dorsch determined that offering a ski pass benefitted the
employer because it attracted prospective employees to odd hour and remote
area employment.
Even assuming that claimant would not have accepted employment without
inclusion of the ski pass, there must be a showing that the inducement
benefitted employer. See Byrd v. Stackhouse Sheet Metal Works, 451 S.E.2d 405, 407 (S.C. Ct. App. 1994) (gas money as inducement to employment not a
basis of compensation without benefit to employer); Berry v. Colonial
Furniture Co., 60 S.E.2d 97, 100 (N.C. 1950) (death resulting from fishing
trip offered as inducement to
employment in place of health insurance not compensable because trip not
directly or indirectly in furtherance of employer's business); Brooks v.
New York State Dep't of Correction Matteawan State Hosp., 273 N.Y.S.2d 1001, 1002 (N.Y. 1966) (existence of low cost residency on employer
premises not sufficient inducement to employment to award compensation
because residency benefitted only employee).
At the hearing claimant apparently recognized the weakness of a claim
that predicated eligibility for workers' compensation benefits on the
attenuated link between the "perk" of a ski pass and a recreational skiing
injury. Much of claimant's evidence went to the issue of whether employer
required claimant to perform job-related duties while skiing (e.g., mingle
with Gables guests or report ski conditions). The Commissioner found that
claimant had "no responsibilities whatsoever to the Gables while he was on
the mountain." The record discloses ample evidence for this as well as
each of the Commissioner's other factual findings. The majority correctly
notes that we can overrule such factual findings only "where those
findings have no evidentiary support in the record." Coburn v. Frank Dodge
& Sons, 165 Vt. 529, 533, 687 A.2d 465, 467-68 (1996).
We are left, therefore, with the "benefit of inducement" theory ably
advanced by claimant at oral argument. If I thought that the only effect
of the majority's opinion would be to make the seriously injured claimant
eligible for workers' compensation benefits, I would be far less troubled
by the result. However, the ramifications of the majority's decision will
extend beyond this case. The likely increase in cost to employers for
workers' compensation coverage would be justified if today's decision
advanced the remedial purpose of the workers' compensation law - to
liberally provide coverage for employees injured in the course of their
employment. But even a liberal reading of the act's purpose cannot
transform a recreational ski injury into an injury arising in the course
of employment. In its good faith effort to extend the reach of workers'
compensation coverage, I believe an unintended consequence of the
majority's decision will be the diminishment
of recreational benefits provided by employers to employees. In any event,
employers who offer ski passes to employees will be as rare as the rope
tow. I am authorized to state that Justice Skoglund joins me in this
dissent.
_______________________________________
Chief Justice
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