Case # G0256329
Date of Accident: 04/26/2010
District Office: NYC
Employer: NYC District Attorney Office
Carrier: Police, Fire, Sanitation
Carrier ID No.: W846505
Carrier Case No.: W9061005151
Date of Filing of Decision: 10/10/2012
Claimant's Attorney: Sherman, Federman, Sambur & McIntyre LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on September 11, 2012, considered the above-captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on December 12, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant sustained a compensable injury during an off-duty sporting event.

The Workers' Compensation Law Judge (WCLJ) established the claim for an injury to the right arm.

The Board Panel majority affirmed the WCLJ, finding that employer overtly encouraged employee participation and allowed employees to play during working hours.

The dissenting Board Panel member would disallow the claim because employees were not required to participate, the self-insured employer (SIE) did not sponsor the event, and the employees were not compensated for their participation.

The SIE filed an application for Mandatory Full Board Review on January 11, 2012.

The claimant filed a rebuttal on February 10, 2012.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The claimant, an assistant district attorney, injured his right arm during the SIE's annual Queens District Attorney March Madness basketball tournament. He filed a Form C-3, Employee Claim, on May 3, 2010, alleging that his injuries occurred at a "work basketball game."

The Board mailed a Notice of Indexing to the parties on May 5, 2010. On July 9, 2010, the Board filed an Administrative Decision, imposing a $50.00 penalty upon the SIE for failure to file a timely Form C-7, Notice That Right to Compensation is Controverted, or a Form C-669, Notice to Chair of Carrier's Action on Claim for Benefits. No party objected to the decision, which became final on August 11, 2010.

The SIE filed a Form C-7 on July 22, 2010, alleging that the claimant's injury did not arise out of and in the course of his employment. The SIE also filed a Form C-2, Employer's Report of Work-Related Injury/Illness, on July 22, 2010, stating that the claimant was not required to participate in the basketball tournament.

On August 3, 2010, the Board notified the parties that a pre-hearing conference was scheduled for August 23, 2010. The SIE filed a pre-hearing conference statement on August 18, 2010. At the pre-hearing conference, the WCLJ determined that the case was not appropriate for the expedited hearing process, and scheduled a hearing for lay witness testimony on October 26, 2010.

The claimant testified in support of his claim at the hearing on October 26, 2010. He stated that the tournament was an annual event in which the different departments competed against each other. The District Attorney awarded the winning department a trophy which would be displayed in that department's offices. The tournament was open only to employees, and each participant paid $20 to participate. All costs associated with the tournament were paid for by the employee's participation fees. He stated that management encouraged employees to play, and the tournament was organized by a fellow employee with the approval of the Chief Assistant District Attorney. The claimant testified that his supervisor asked him to play on several occasions, but he was not compensated for his participation. He recalled that in a prior year, the Chief Assistant District Attorney had sent out an e-mail chastising employees for their behavior at the tournament. The claimant offered a copy of that e-mail into evidence.

The SIE called the claimant's supervisor (Supervisor) to testify. When questioned regarding whether employees were required to participate, the Supervisor responded:

I would say yeah and no. It is voluntary. I strongly encourage them to play, especially when we're in the playoffs. And I'll admit we're very competitive. I'm a competitive person when it comes to sports. So certainly I want every member possible and especially the good ones to play. I do strongly encourage them to play.

(Hearing Transcript, 10/26/2010, p. 19)

The Supervisor stated that employees were not penalized for not participating, other than having to "hear [the Supervisor's] mouth" (id.). The Supervisor also testified that she did not know how the tournament benefited the SIE.

The SIE also called the Assistant District Attorney who organized the tournament to testify. She described herself as the "Commissioner" of the tournament, and stated that it was her "job" to put the tournament together (id. at 22). She noted that the employees were not compensated, but the tournament boosted morale. She also testified that some employees were excused from working for a couple of hours in order to be able to play, and those employees were not required to take leave or make up the time. The Assistant District Attorney noted that she used office letterhead in correspondence regarding the tournament, and planned the tournament during working hours.

At the close of the hearing, the WCLJ established the claim for an injury to the right arm, finding that the SIE overtly encouraged employee participation in the tournament. The findings made at the October 26, 2010 hearing are reflected in a decision filed October 29, 2010.

LEGAL ANALYSIS

In its application for Mandatory Full Board Review, the SIE argues that the facts of the present case are identical to those of Matter of New York City Department of Corrections (2011 NY Wrk Comp G0351535) in which the Board found that the claimant's injuries did not arise out of and in the course of her employment, and therefore the Board Panel majority erred in affirming the establishment of the claim. The SIE further argues that the Board Panel majority's decision "undermines the legislative intent" of Workers' Compensation Law (WCL) § 10(1).

In rebuttal, the claimant argues that the facts of the present case are distinguishable from those of Matter of NYC Department of Corrections, and the Board Panel majority properly found that the claimant's injuries were compensable because the SIE encouraged the claimant to participate.

Waiver of Defenses for Failure to File a Timely Notice of Controversy and Pre-Hearing Conference Statement

When the Board indexes a claim, the carrier must file a Notice of Controversy (Form C-7) within 25 days of the mailing of the notice of indexing. Failure to timely controvert "shall bar the employer and its insurance carrier from pleading that the injured person was not at the time of the accident an employee of the employer, or that the employee did not sustain an accidental injury, or that the injury did not arise out of and in the course of the employment" (WCL § 25[2][b]).

Absent a showing of good cause or other reason to excuse the untimely filing, the carrier shall be precluded from offering any evidence to dispute whether the injury was causally related to work. The Board must determine whether the alleged injury was work-related without regard to the carrier's proof (Matter of Cappellino v Baumann & Sons Bus Company, 18 NY3d 890 [2012]).

Similarly, "[f]ailure by the insurance carrier to timely serve upon all other parties and file with the Board the pre-hearing conference statement, or the filing by the insurance carrier of a materially incomplete statement shall result in a waiver of defenses to the claim; failure to list a witness on, or to include a copy of any document not in the electronic case file with the pre-hearing conference statement, which the insurance carrier had in its possession or could reasonably have obtained, shall constitute a waiver of the right to call such witness or introduce such document in the case. There shall be no waiver if the Workers' Compensation Law Judge finds, based on the affidavit of the insurance carrier's legal representative (or if the insurance carrier does not have a legal representative, then by the insurance carrier), that the conduct at issue was due to good cause and the insurance carrier exercised good faith and due diligence" (12 NYCRR 300.38[f][4]).

In the present case, the SIE filed its Notice of Controversy July 22, 2010, 78 days after the Notice of Indexing was mailed by the Board. Therefore, the Notice of Controversy was untimely and the SIE is deemed to have waived the defenses that the injured person was not at the time of the accident an employee of the employer, or that the employee did not sustain an accidental injury, or that the injury did not arise out of and in the course of the employment pursuant to WCL § 25(2)(b). Additionally, the SIE filed its Pre-Hearing Conference Statement five days before the pre-hearing conference. Therefore, the SIE is deemed to have waived all defenses to the claim pursuant to 12 NYCRR 300.38(f)(4). Thus, the SIE should not have been allowed to offer witness testimony at the hearing.

Establishment of the Claim

Despite the SIE's waiver of defenses, the claimant still bears the burden of showing that he suffered a compensable injury (see Matter of Coleman v Schenectady County Dept. of Social Servs., 80 AD3d 837 [2011]).

"Workers' Compensation Law § 10(1) sets forth three conditions under which workers' compensation benefits may be awarded for injuries incurred during voluntary participation in an off-duty athletic activity that is not a part of the employee's work-related duties. Specifically, an award is foreclosed under section 10 unless 'the employer (1) required the employee to participate in the activity, (2) paid the worker to do so, or (3) sponsored the activity'" (Matter of Bogert v E.B. Design Air, Inc., 38 AD3d 1125 [2007], quoting Matter of Dorosz v Green & Seifter, 92 NY2d 672 [1999]).

[When] an employee is injured in a voluntary athletic activity which is not part of the employee's work-related duties, Workers' Compensation Law § 10 (1) precludes an award of workers' compensation benefits unless one of three conditions is met (see Matter of Dorosz v Green & Seifter, 92 NY2d 672)…[T]he condition applicable when the employer 'otherwise sponsors the activity[ ]'…is satisfied by evidence of the employer's 'overt encouragement' of participation in the activity (id. at 676). Overt encouragement is not established merely because the employer is aware of, or even acquiesces in, the activity or the activity boosts employee morale or the activity confers some other benefit on the employer (see id. at 676)" (Matter of Koch v Rockland County Sheriff's Dept., 289 AD2d 865 [2001]).

In the present case, the SIE argues that the facts of the present case are similar to those of Matter of NYC Department of Corrections (2011 NY Wrk Comp G0301535). The claimant in NYC Department of Corrections was participating in an athletic tournament with other employees, was required to pay a fee in order to participate, and the Commissioner of the Department of Corrections attended the games. However, in that case, the evidence did not support a finding that the employer actively encouraged employees to participate. The record showed that flyers were sent out to employees, and employees were asked by their supervisors if they wished to participate, but the supervisors did not actively encourage participation.

The facts of the present case are similar to those of Matter of Midley v Romulus Central School District (184 AD2d 925 [1992]). In Midley, the claimant, a teacher, participated in the employer's basketball game after the school principal told the teachers that he was concerned that the school would be unable to field a team, and he encouraged employees to participate. The Appellate Division upheld the Board's establishment of the claim, despite the fact that the claimant was not required to participate and was not compensated for her participation. The Appellate Division noted that the claimant's participation was the result of the principal's solicitation, and therefore "[t]he principal's conduct was not passive or incidental, but rather an overt encouragement sufficient for the Board to conclude that the school sponsored the game" (id.).

While the SIE should have been barred from presenting the testimony of the Supervisor and the event organizer, their testimony supports the claimant's allegation that he suffered a compensable accident. The Supervisor corroborated the claimant's testimony that she recruited the claimant and other employees to participate in the tournament. In fact, the Supervisor testified that, while employees would not be penalized for not participating, they would have to hear her complain.

Most significantly, the testimony by the Assistant District Attorney (the tournament commissioner) that staff were excused from work early to participate in the games without having to charge leave accruals or make up the lost time is tantamount to sponsorship of the tournament (see Matter of Midley [id.]). Therefore, the Full Board finds that preponderance of the evidence in the record supports a finding that the claimant suffered a compensable injury arising out of and in the course of his employment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on October 29, 2010, is AFFIRMED. No further action is planned by the Board at this time.