Opinion
W.C. No. 4-323-980
November 19, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Stuber (ALJ), insofar as it determined that the claimant sustained a compensable injury. We affirm.
The ALJ found that the claimant was injured while bowling at an employer-sponsored Christmas party on December 17, 1996. The ALJ credited the claimant's testimony, and that of her witnesses, that attendance at the party was mandated by the employer. The ALJ also found that, even though the party was held off the employer's premises, it occurred during regular business hours. Finally, the ALJ credited evidence that the employer "initiated, organized, sponsored, and financially paid for the party in question."
The ALJ concluded that, under these circumstances, the claimant proved that she sustained a compensable injury. In so doing, the ALJ stated that he considered the legal criteria set forth in City and County of Denver v. Lee, 168 Colo. 208, 450 P.2d 352 (1969).
On review, the respondents contend that the ALJ erred as a matter of law in considering the evidence that the employer promoted, sponsored, and paid for the Christmas party. The respondents argue that, although these criteria were considered by the Supreme Court in City and County of Denver v. Lee, the General Assembly removed them from consideration by the 1991 amendments to § 8-40-201(8), C.R.S. 1997. See 1991 Colo. Sess. Laws, ch. 219 at 1292-1293. We disagree with this argument.
The 1991 amendments to § 8-40-201(8) define "employment" to exclude "the employee's participation in a voluntary recreational activity or program, regardless of whether the employer promoted, sponsored, or supported the recreational activity or program." The respondents argue that this language evidences the General Assembly's intent that, when considering the compensability of an injury incurred during a recreational activity, ALJs are precluded from considering evidence that the employer promoted, sponsored, or supported the activity.
In evaluating this argument, we apply the rule that words in a statute should be given their plain and ordinary meanings unless the result is absurd. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). To the extent the statute is ambiguous, we should strive to construe it in a manner which gives consistent, harmonious, and sensible effect to all of its parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Moreover, it is presumed that a legislative amendment does not change existing law further than is expressly declared or necessarily implied. Karlin v. Conard, 876 P.2d 64 (Colo.App. 1993).
In City and County of Denver v. Lee, the Supreme Court considered whether a police officer sustained a compensable injury while playing basketball on an employer-sponsored team. In evaluating compensability, the court set forth several criteria "which will determine by their presence or absence whether a particular recreational activity is within the scope of employment." Those criteria were as follows:
"Whether the activity occurred during working hours; whether it was on or off the employer's premises; whether participation was required; whether the employer took the initiative in sponsoring or organizing the team; whether the employer made contributions to the team; and whether the employer derived benefit from the team."
In finding the officer's injury compensable, the Lee court cited evidence that the employer gave police officers paid leave to play in games while "on shift." The court also relied on the employer's "sponsorship" of the team, and the employer's statements to policemen that they "were to be considered on duty when playing." Significantly, the court stated that the claimant's participation in the basketball league was "entirely voluntary." 450 P.2d at 354.
Thus, the Lee case is authority for the proposition that employer sponsorship and promotion of a recreational activity may render an injury compensable even if the claimant's participation in the activity was "entirely voluntary." Viewed from this perspective, the 1991 amendments to § 8-40-201(8) are best considered as a legislative modification of the Lee decision insofar as the case permits a finding of compensability regardless of whether the claimant's participation in the activity was voluntary.
Put another way, we read the 1991 amendments as requiring ALJs to determine the claimant's motive for participation in the recreational activity, and to deny compensability if the participation was "voluntary." Further, the statute prohibits ALJs from awarding benefits solely on the basis that the employer promoted or sponsored the recreational activity.
However, this interpretation of § 8-40-201(8) falls far short of precluding ALJs from considering evidence of employer sponsorship, promotion and support of recreational activities. Indeed, evidence concerning the extent of employer sponsorship and promotion may be relevant in determining whether or not the claimant's participation was "voluntary." The greater the evidence of employer promotion and sponsorship, the greater is the likelihood that the claimant's participation was not "voluntary," but implicitly compelled by the employer. Of course, evidence of employer sponsorship may also permit other inferences.
This interpretation of the statute effects a change in the law as it existed under City and County of Denver v. Lee, but does not result in the radical shift argued for by the respondents. Moreover, our interpretation of § 8-40-201(8) is consistent with § 8-40-301(1), C.R.S. 1997, which defines the term "employee" as excluding a person "participating in recreational activity, who at such time is relieved of and is not performing any duties of employment." See Karlin v. Conard, supra. Read together, both statutes focus on whether the claimant's participation in the recreational activity was the result of his own choice, or was the product of the employer's authority.
II.
The respondents next contend that the ALJ's award is not supported by the evidence. They argue that if the "irrelevant criteria" are excluded, the record does not contain sufficient proof of compensability. We disagree.
The ALJ's findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In applying this standard, we are obliged to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' assertions notwithstanding, the record contains substantial, albeit conflicting, evidence that the claimant was compelled by the employer to attend the Christmas party. The claimant testified that she understood that attendance was mandatory because of the memo circulated by the employer, and because other similar functions were mandatory. (Tr. p. 17). Moreover, the claimant's testimony concerning the mandatory nature of the party was corroborated by three other witnesses. (Tr. pp. 45, 48, 52, 54, 57).
Neither do we agree with the respondents that the ALJ mischaracterized the testimony of their witnesses. Witness Nielsen stated that it was "never expressed" to him that attendance at the Christmas party was mandatory. Thus, the ALJ could construe Nielsen's testimony as reflecting uncertainty concerning whether the Christmas party was mandatory. In any event, the ALJ resolved all conflicts in the evidence against the respondents. Therefore, any error was harmless.
Aside from the mandatory nature of the party, there is evidence to support the ALJ's further findings that the party occurred during regular business hours, was sponsored and paid for by the employer, and was designed to boost employee morale after a particularly difficult year. All of these factors support the ALJ's award of benefits. City and County of Denver v. Lee, supra.
In reaching this conclusion we recognize the respondents' reliance on Lindsay v. Public Service Co., 146 Colo. 579, 362 P.2d 407 (1961), for the proposition that promoting employee morale is an insufficient basis for proving a relationship between the recreational activity and the employment. However, the result in Lindsay was reached because morale building was the only factor indicating that the employer compelled the claimant's participation in the recreational activity. Here, that is not the case, and the ALJ properly considered the employer's motivation as a factor. City and County of Denver v. Lee, supra.
Insofar as the respondents have made other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated May 22, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ David Cain
__________________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed November 19, 1997 to the following parties:
Laura Dickerson, 1215 W. Tufts Ave., Englewood, CO 80110
Dover Elevator Company, 6374 S. Racine Cir., Englewood, CO 80111-6426
Liberty Mutual Insurance Co., 13111 E. Briarwood Ave., #100, Englewood, CO 80112
James E. Elliott, Jr., Esq. Mark D. Elliott, Esq., 7884 Ralston Rd., Arvada, CO 80002-2434 (For Claimant)
Patrick Collins, Esq. Dwight L. Pringle, Esq., 1801 Broadway, #910, Denver, CO 80202 (For Respondents)
By: __________________________