Texas Workers' Comp Defense: Recreational Activity Defense

When Texas established its workers' comp system, it was based on the idea that injured workers traded their right to sue their employer for injury-related negligence, in exchange for a set of guaranteed, no-fault benefits. These benefits are workers' compensation benefits, issued by their employer's insurance carrier, if the employer is part of the workers' compensation system.

Sadly for injured workers, the "no-fault" compensation promised by workers' compensation is not as no-fault as many may believe. When Legislators passed the Texas Workers' Compensation Act, they built into the law several defenses that employers and their insurers were allowed to argue as reasons to deny benefits to injured workers. These defenses are not like other defenses found in the common law which chip away at the compensation that a claimant receives. Instead, when an employer is eligible to use these defenses, the result is a complete bar against the worker's claim, and the injured worker gets nothing. Those defenses are:

• Employee was intoxicated
• Employee hurt themselves on purpose
• Intentional injury from other employee
• Act of God
• Injury caused by horseplay
• Injury not within course and scope of employment
• Contributing injury

Additionally, there is one other defense that employers are eligible to use, which is the basis of this article, and that is the defense that the accident wasn't the employer's doing, but caused by a recreational activity. In this article, Texas work injury attorney, Michael Grossman will address the Recreational Activity Defense as it relates to workers' comp benefits.

While there are common sense reasons that employers should not have to compensate workers who weren't actually at work at the time of the accident or intentionally inflicted an injury upon themselves, one doesn't have to be inclined to conspiracy theories to realize that employers and insurers quickly started using these defenses to contest even legitimate workers' comp claims, by employing any and every defense available to them.

Questions answered on this page:

• What does it mean when an employee was Injured by a Recreational Activity?
• How does the Recreational Activity defense work?
• How do employers and insurers abuse this defense?
• How can an experienced workers' comp injury attorney help protect your rights?

How the Recreational Activity Defense works

The idea behind the Recreational Activity Defense is that injuries workers suffer at company social events like picnics and happy hours are not exactly the work-related injuries that workers' compensation was designed to provide benefits for. In the event that a worker is injured playing pick-up basketball at one of these events, or in a slip an fall accident, employers are able to put forward this defense and it obliterates any claims that an injured worker might have to workers' compensation.

This is perfectly legitimate when the events are voluntary, but with an increased focus on workplace team-building the line between what is a voluntary work event, and what is a mandatory work event, quickly becomes blurred. In many instances companies deliberately blur the line so as to compel employees to attend the event, while retaining the right to fight workers' comp claims in the event that a worker is injured.

What is a recreational activity?

To understand the Recreational Activity Defense, it is important to know what a recreational activity is. Simply put, a recreational activity is darn near any activity that happens outside of normal work but is usually done on the clock. It can at times be difficult to distinguish between the Recreational Activity Defense and the Course and Scope defense. The Course and Scope Defense is one where the employer basically says that they don't have to pay for the worker's injuries because the worker wasn't actually on the clock (not in the "course and scope" of employment). But the Recreational Activity Defense is more a matter of the employee doing something fun or entertaining that usually occurs on the clock. If you think of the Recreational Activity Defense as instead being called the "Company Picnic Defense," you get a better sense of how it's distinct from the Course and Scope Defense.

An Injury Caused by a Recreational Activity

Imagine what kinds of recreational activities seem like they're work-related. You might be thinking of a company picnic, maybe an annual meeting with a team-building game, or various other examples. It's a reality that businesses, in creating a workplace community, will have events that involve recreation. However, that doesn't mean that the employer is on-the-hook if someone gets hurt.

If someone voluntarily participates in a non-work-related activity at a work function, their employer can claim the defense that the injury was caused by the recreational activity. In these scenarios, if the worker engages in the activity--even though it's at a work party--and the recreation is not part of their job description, the employer is not responsible. Think about this way, you're not getting paid to play beach volleyball, are you? Even if it's at a company picnic, that recreational activity is not part of you employment, therefore, it's not your employer's responsibility to ensure that you get benefits if an injury results.

Exceptions to The Recreational Activity Defense

Sometimes, there are jobs where the employee is right in the middle of the recreational activity, but it is actually part of their job description. These jobs are obviously exceptions to this defense, and some examples might include: a ride operator at a theme park or a football player. They are usually engaged in that recreational activity at all times, so the employer who uses this defense does not have solid ground to stand on and their argument would most likely not hold up.

"Voluntary" Team-Building Events

Of course, in today's work environment things can get really complicated, because while these activities may fall outside of the job description, many people do not feel comfortable not attending work social events. Employers are generally looking for team players and when people decide that they would rather not participate in the company flag football game, it can negatively impact their careers. This creates a situation where the distinction between mandatory and voluntary breaks down. If an employer offers incentives to attend an event or rewards those who do with more pay or better positions, they cannot turn around can claim that an event is voluntary, since it directly impacts someone's career.

We are amazed by how many times employers have "voluntary" team-building events, after work, or on weekends, where the expectation is that everyone will attend. Then after someone gets hurt at one of these team-building exercises, the employer disclaims responsibility by claiming that the employee was hurt at by engaging in a recreational activity. If it was mandatory, then it was furthering the interests of the employer and the business and not recreational, by definition.

We all know the cliché that you can't have your cake and eat it too, but that is exactly what many employers try to do when they blur the line between voluntary and mandatory work-events, while trying to assert that any injuries that result from quasi-mandatory company functions are the result of recreational activities.

Company Gyms

As more companies become aware of the link between healthy employees and increased employee productivity and happiness, companies are increasingly investing in on-site workout facilities. With more on-site gyms, comes more on-site gym accidents and worker injuries. In many instances, an employer will assert that injuries that occur in gyms are Injuries Caused by Recreational Activities.

For instance, a salaried worker swings down to the gym as part of their normal schedule, but since working-out is not listed among their job duties, when an injury occurs the employer in many cases will fight the worker's workers' comp claim. It seems a pretty open and shut case of their employee suffering an Injury Caused by a Recreational Activity. However, since many companies who provide gyms also offer monetary benefits such as bonuses and lower health care deductibles to employees who work out in the company gym for a specified amount of time each week, the line between what is a work duty and what is not becomes blurred.

As a general rule, if you are in some way compensated for performing a recreational activity by your employer, or if you the activity is mandatory, this defense is invalid. It won't stop some employers from trying to assert it, but it's hardly recreational and outside of your work duties if it is required by an employer.

Not sure if your injury was caused by a recreational activity?

If there's anything we've learned in our 25 years of practicing, it's that no two work injury claims are the same. There are different variables from case to case. If you're not sure where you lie in your workers' comp claim, and your employer attempts to argue the Recreational Injury defense, don't be afraid to seek legal guidance. We know what the law states your employer can argue and what they cannot argue, too. Call (855) 326-0000 now. We answer the phone 24 hours a day, 7 days a week.

If you have been injured in a work accident, you may be interested in the following related articles:

• Can I Be Fired for Filing a Workers' Comp Claim?
• An Overview of Available Texas Workers' Comp Benefits
• Are Employees Allowed to Opt-Out of Workers' Comp?