By Ronald W. Ryan

A ski instructor, who sustained a neck injury after taking a jump in the terrain area, despite wearing a resort ski jacket and otherwise being “on-the-clock” as an instructor, was in pursuit of his own vanity at the time of the injury and therefore was not entitled to worker’s compensation benefits say the Courts in Michigan. Generally employees are entitled to worker’s compensation benefits when their injuries arise out of the course and scope of employment. However if their injuries arose out of a social and recreational activity, their claims are barred.

The ruling comes out of a 2007 alleged work injury filed against Swiss Valley Ski Resort of Jones, Michigan. The matter was hotly litigated. It twice found its way before the trial Magistrate and twice into the appellate system through a period that spanned six years. Initially the Worker’s Compensation Magistrate ruled in the favor of the plaintiff ski instructor. The Magistrate found that the ski instructor had discussed taking the ski jump earlier in the day in order to have his picture taken, took an indirect route to the ski lodge – and through the terrain park – to sign his time card, and then took the ski jump, all to accommodate a personal desire to have his picture taken. Despite having made these findings, the Magistrate was sympathetic to the plaintiff’s injuries and awarded benefits, finding him within the course and scope of his employment because he was wearing his ski instructor’s jacket and was on the premises when injured.

The matter was affirmed, in a split decision, on appeal to the Worker’s Compensation Appellate Commission. However, it was the dissenting opinion from one of the appellate judges that initially changed the tide toward the Swiss Valley Ski Resort. The dissenting appellate commissioner noticed that the Magistrate had made some very specific factual findings which should have constrained his result and should have led to a denial of benefits.

“The magistrate found that plaintiff learned in advance that his co-worker would be taking pictures in the terrain park. The magistrate did not believe the plaintiff came upon the picture taking activities by chance. The magistrate did not believe the plaintiff’s plan to ski a different route was changed in the moment. The magistrate found the plaintiff planned in advance to go to the terrain park to have his picture taken, because having his picture taken would ‘please him’.”

The dissenting commissioner found that she was “constrained by the specific factual findings of the magistrate” to apply the social and recreational bar.

“If we leave the magistrate’s findings unaltered, and we must, application of the law should lead to the reversal of benefits. The magistrate’s findings leave no alternative. How could the ski jump have anything other than recreation as its “major” purpose, given the magistrate’s conclusive findings that the plaintiff discussed the ski jump ahead of time with a co-worker, planned ahead of time to go over the jump, purposely took an indirect route to return to the ski lodge, all to accommodate a personal desire, fueled by pride and vanity, to have his picture taken?”

Convinced that the courts were now starting to understand its position, Swiss Valley requested leave to appeal to the Michigan Court of Appeals which, despite the dissenting opinion, affirmed the award of benefits to the plaintiff ski instructor. The Michigan Supreme Court then had its chance to weigh the matter and, in a one paragraph Order, sent the case back to the Worker’s Compensation Magistrate and ordered him to render an opinion consistent with its prior holding in Eversman vs. Concrete Cutting. The Supreme Court held that the Magistrate and the majority of the Appellate Commission “had applied an improper legal framework in analyzing the facts of the case by assessing whether the major purpose of the plaintiff’s overall activities were work-related.” However in Eversman, the Court held, “the major purpose of the plaintiff’s activity at the time of the injury determines whether the social or recreational bar applies.”

Despite specific direction from Michigan’s highest court, the Magistrate thumbed his nose and again wrote another sympathetic opinion in favor of the ski instructor. The matter was re-appealed to the Appellate Commission who, this time, reversed the Magistrate and issued an opinion consistent with Eversman vs. Concrete Cutting, thus applying the social and recreational bar. The ski instructor then sought leave to appeal to the Michigan Court of Appeals, however, leave was denied and the matter was then resolved in Swiss Valley’s favor.

It is important to examine the details of how an injury occurred. An employer needs to examine the circumstances of the injury and ask, what was the employee doing at the moment they were injured? Not all injuries that happen at work are compensable. If the employee sustains injury while doing something to benefit themself – if it was something of a social or recreational nature – rather than something to benefit their employer, benefits may be denied. In this matter it was particularly important to have the trial judge make findings of fact that compel himself to reach only one conclusion once the law was applied to the facts, despite his sympathies and preference to award benefits.

Ron Ryan, a Michigan attorney who focuses his practice on Workers Compensation litigation with the law firm of Lewis, Reed & Allen PC of Kalamazoo, represented Swiss Valley.

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