INJURIES SUSTAINED IN EGG TOSS GAME – ARE THEY COMPENSABLE?

            In a case recently decided by the Michigan Compensation Appellate Commission, Heestand v Cintas Corporation #2, 2018 ACO #43, the Commission decided the issue of whether injuries sustained while participating in an egg toss game on the employer’s premises during a safety day event for the employer were compensable.

            The employee began working for Cintas in June 2008. At the time of the injury, she was working as a custodian. Her job duties consisted of cleaning the building. Her job involved physical labor, including lifting bags weighing up to 60 pounds.

            On 06/28/13, the employee was taking her usual 1:00 p.m. break in the breakroom. She was invited by the human resources manager to participate in Safety Day games. The employer always provided free lunch on Safety Day and encouraged people to participate. Prizes were offered for those who won the sponsored contests. One of the games was an egg toss. The general manager of the plant was leading the egg toss game. Following each toss, he would direct the participants to step back several steps to make it more difficult. When the employee was stepping back and the egg was tossed, she had to step back farther and jump in order to catch it. She caught it, but as she leapt to catch it, she collided with a sign behind her, causing her to fall to the ground onto her right side. She applied ice and went home.

            The employee injured her right shoulder and right hip. She treated with an orthopedic surgeon. She underwent injections to her right shoulder and right hip, and physical therapy. She eventually underwent a right shoulder rotator cuff repair surgery. At the time this case was tried on March 4, 2015, the employee was still off work.

            MCL 418.301(3) provides as follows:

An employee going to or from his or her work, while on the premises where the employee’s work is to be performed, and within a reasonable time before and after his or her working hours, is presumed to be in the course of his or her employment. Notwithstanding this presumption, an injury incurred in the pursuit of an activity the major purpose of which is social or recreational is not covered under this Act. Any cause of action brought for such an injury is not subject to §131. (Emphasis added.)

The employee’s claim for workers’ compensation benefits was disputed on the basis that the major purpose of her activity at the time of the injury was social or recreational.

The trial magistrate disagreed and found that the major purpose of the employee’s activities was not social or recreational, and awarded benefits.

The magistrate explained his decision as follows:

Granted, it is a thin line between merely encouraged and being expected to participate in activities, but I do believe in this case the plaintiff did feel somewhat obligated to join in the activities based upon this personal invitation. Here the plaintiff’s decision to “accept” this personal invitation showed her solidarity, her willingness to comply with the employer’s request, which was in fact a reaffirmation of the employer’s authority. Furthermore, she was still being paid during the time that this occurred and I find that all of these factors transform the activity in one that is more occupational than recreational, and therefore arose out of and in the course of employment, taking it outside of the §301(3) defense. I believe it is one thing to give an open invitation to all employees to participate and those who participate of their own volition but are injured would be subject to the exclusion of §301(3). However, when individuals are singled out and more or less prodded into participation, the voluntary aspect disappears. (Emphasis added.)

A three member panel of the Appellation Commission reversed the magistrate’s decision, holding that the magistrate erred by concluding that the major purpose of the egg toss activity the employee was engaged in at the time of her injury was not social or recreational. The Appellate Commission found that it was social and recreational.

The Appellate Commission found the following evidence compelling:

Testimony of plaintiff and defendant witnesses consistently said plaintiff was not ordered to participate. She was invited. All willing and able employees were encouraged to participate. However, all invited employees were also allowed to decline the invitation without consequence. Plaintiff said no incentives, such as extra pay or days off, were given to participants. A number of first shift employees chose not to participate. Plaintiff did not disagree that only 28 of 57 employees on plaintiff’s shift participated in the egg toss game. The record does not show any employee who chose not to participate in the game suffered any negative consequence or detriment for making that choice. Plaintiff said she was not threatened with harm or loss of her job if she chose not to participate, and neither was anyone else. The record does not support [with proper evidence, the magistrate’s] finding plaintiff was singled out from other employees and compelled (or prodded) to participate in the egg toss game. This record fails to support, [with proper evidence, the magistrate’s] finding that Cintas did anything more than invite and encourage plaintiff and all other first shift employees to participate in the egg toss game. Therefore, per §861a(3), we reverse the Magistrate’s findings that Cintas singled plaintiff out and compelled, coerced, or prodded her to participate in the egg toss game.

The Appellate Commission found that the major purpose of the activity the employee was engaged in at the time of her injury was social and recreational. The Appellate Commission found that the employer did nothing more than invite and encourage its employee to participate in a social or recreational activity.

During her testimony at trial, when the employee was asked what the major purpose of the egg toss game was, “she thought it was to get everybody together to help people learn how to work together. When asked if it was for recreational purposes, she responded, ‘I guess’”.

In summary, many employers offer to their employees morale and teambuilding activities and events, including games, community projects, barbecues, etc. This decision informs employers that, if the major purpose of the activity is social or recreational, participation is not mandatory, although encouraged, and employees can decline to participate without consequence, injuries incurred in the course of such activities are most likely not to be found to be compensable under the Workers’ Compensation Statute.

November 28, 2019

Dear Friends and Colleagues,

            The terms of seven of the currently serving 14 Workers’ Compensation Magistrates will expire as of January 25, 2019.  The newly elected governor, Gretchen Whitmer, will have the power to appoint new magistrates or reappoint existing magistrates to fill the seven vacant positions.  Her appointments will be subject to the advice and consent of the Republican- controlled Senate. 

            The seven magistrates up for reappointment are Brian Boyle, David Grunewald, Chief Magistrate Lisa Klaeren, Beatrice Logan, Luke McMurray, E. Louis Ognisanti, and Chris Slater.

            An organization of attorneys representing injured workers (The Michigan Association for Justice) is rumored to be planning to attempt to influence Governor Whitmer’s appointments to the Board of Magistrates for the purpose of obtaining appointment of more “employee-friendly” magistrates.

            Because the advice and consent of the Senate is required, it is likely that there will be negotiations between the Governor’s Office and the Senate, allowing appointment of a number of the Governor’s choices for magistrate and number of the Senate’s choices for magistrate.

            Thus, there is some likelihood that several of the magistrates seeking reappointment will not be reappointed and that new, more “employee-friendly” magistrates may be appointed.

            If you want to have input into the magistrate selection process, call, write or email Senator Mike Shirkey (who will be the new Majority Leader of the Senate in 2019) at www.senatormikeshirkey.com.

            If you have any questions or would like to discuss this information further, please contact John Combs or Len Hickey.

TELEMEDICINE RULES – MICHIGAN HEALTHCARE SERVICES RULES 02-01-19

R 418.10109 Definitions; M to U.

Rule 109. As used in these rules:

(x) “Telemedicine” means the use of an electronic media to link patients with health care

professionals in different locations. To be considered telemedicine, the health care professional must be able to examine the patient via a real-time, interactive audio and video telecommunications system, and the patient must be able to interact with the off-site health care professional at the time the services are provided.

R 418.10901 General information.

Rule 901.

(4) A health care professional billing for telemedicine services shall only utilize procedure codes listed in Appendix P of the CPT codebook, as adopted by reference in R 418.10107, to describe services provided, excluding CPT codes 99241-99245 and 99251-99255. The provider shall append modifier -95 to the procedure code to indicate synchronous telemedicine services rendered via a real-time interactive audio and video telecommunications system with place of service code -02. All other applicable modifiers shall be appended in addition to modifier -95.

R 418.101004 Modifier code reimbursement.

Rule 1004.(14) When modifier -95 is used with a procedure code listed in Appendix P of the CPTcodebook, as adopted by reference in R 418.10107, excluding CPT codes 99241-99245 and99251-99255, the telemedicine services shall be reimbursed according to all of the following:

(a) The carrier shall reimburse the procedure code at the non-facility maximum allowablepayment, or the billed charge, whichever is less.

(b) Supplies and costs for the telemedicine data collection, storage, or transmission shall notbe unbundled and reimbursed separately.

(c) Originating site facility fees shall not be separately reimbursed.

November 28, 2018

Dear Friends and Colleagues,

            On November 6, 2018, Michigan voters passed Proposal 1, the Michigan Regulation and Taxation of Marihuana Act.  The proposal legalized marijuana for adult recreational use.  It will become effective ten days after the election results are certified (December 6^th?).  It may take up to one year for the Department of Licensing and Regulatory Affairs to develop rules and regulations governing the state’s recreational marijuana industry before it begins accepting applications.  Commercial availability of marijuana for sale may be delayed until early 2020.

            Proposal 1 allows adults age 21 and older to possess up to 2.5 ounces of marijuana on their person or up to 10 ounces in their home.  Adults can grow, but not sell, up to 12 plants in their home for personal use.

            Based upon an analysis of the proposal by Steven Kaplan, J.D., Michigan’s Proposal 1 allows the highest marijuana possession limits of all states in the nation.  Also, it does not regulate the potency of marijuana. 

            According to employment and labor attorneys at Miller Johnson, Proposal 1 does not:

• Require employers to permit employees to possess or use      marijuana in the workplace;
• Prohibit employers from disciplining an employee for      violating a workplace drug policy or for showing up for work with      marijuana in his or her system, or;
• Prevent employers from refusing to hire, discharge,      discipline, or otherwise take an adverse action against any person because      of the person’s violation of a workplace drug policy.

According to the lawyers at Miller Johnson, employers may still have policies that say what is, and what is not, acceptable workplace behavior, including the maintenance of zero-tolerance policies for their workforce.  Miller Johnson recommends, however, that employers should evaluate their current prohibited substances policies to address whether there is a clear statement that marijuana is considered an illegal substance, and the form of testing and the penalty for positive tests.  Miller Johnson recommends that employers consider the balance between safety and staffing when evaluating current policies, and determine whether the organization will retain a zero-tolerance policy or consider alternatives such as last change agreements.

With respect to workplace injuries, employers still have the right under MCL 418.305 to determine whether the injury was caused by the intentional and willful misconduct of the employee.  If so, compensability of the injury may be disputed.  If an employer can show that an injury was caused by the employee’s violation of the workplace drug policy, the worker’s compensation claim may be disputed.  If the claim is disputed, it will be the employer’s burden to prove, by a preponderance of the evidence, that violation of the workplace drug policy caused the injury.  Currently, there are no accurate, on-demand impairment tests for THC (marijuana) intoxication.  Therefore, employers will need to do a thorough investigation and obtain circumstantial evidence that the employee was intoxicated by THC/marijuana at the time of the injury, and that the intoxication was a contributing cause to the injury.  Circumstantial evidence could include eyewitness observations of erratic behavior, inattentiveness, carelessness, delayed reaction times, clumsiness, inability to follow directions, the injured worker’s statements relating to intoxication, etc., to persuade a magistrate that the injured worker was intoxicated by THC/marijuana at the time of the injury. 

Where an employer would typically have accommodated work restrictions arising from an occupational injury, but a post-injury drug test is positive for THC/marijuana (even though there is no determination as to a level of toxicity) and the injured worker is properly suspended or terminated under the workplace drug policy, ongoing wage loss benefits may be subject to dispute on the basis that the injured worker’s wage loss is not attributable to the injury, but is attributable to his/her violation of the workplace drug policy, resulting in suspension or termination of employment when restrictions could have been accommodated.

If the employer is accommodating an injured workers’ post-injury work restrictions and the injured worker tests positive for THC/marijuana, resulting in suspension or termination under the employer’s workplace drug policy, reinstatement of worker’s compensation wage loss benefits would also be subject to dispute on the basis of an unreasonable refusal of accommodated work.

In summary, although the passage of Proposal 1 has resulted in freedom from state and local prosecution for possession and usage of small amounts of marijuana, the constitutional amendment does not preclude employers from disputing workers’ compensation claims where it can be proven that THC intoxication was a contributing cause to a workplace injury and/or that a violation of the workplace drug policy for testing positive for THC resulted in removal of the injured worker from available work, resulting in the wage loss. 

If you have any questions or would like to discuss this matter further, please contact us at your convenience.