Employment: Course and Scope: Recreational Activities

MONTANA SUPREME COURT DECISIONS
Michalak v. Liberty Northwest Ins. Corp. [01/03/08] 2008 MT 3, 341 Mont. 63, 175 P.3d 893 The WCC properly focused its Courser analysis on the company picnic as the “activity,” rather than the employee’s ride on the wave runner, to determine whether the employee’s injury occurred within the course and scope of his employment. This is consistent with Courser itself which focused on the “activity” of attending graduate school, and not on the motorcycle accident that took place during the employees commute.
Connery v. Liberty Northwest Insurance Corp., 280 Mont. 115, 929 P.2d 222 (1996).) WCC correctly interpreted section 39-71-118(2)(a), MCA (1995) to include two-part analysis: first, whether activity leading to accident was recreational; second, whether injured person was relieved of and not performing duties of employment at the time of the accident. WCC did not err in using a course and scope analysis to decide second issue. Where ski instructor was engaged in warm-up run specifically recommended by employer in training manual, from which both employee and employer benefitted, and would finish her run at the place where she would begin a pre-assigned lesson, she was in course and scope of employment and injury was compensable.
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS
Michalak v. Liberty Northwest [03/22/07] 2007 MTWCC 14 The Court concludes that an employee injured while riding a wave runner at a company picnic was acting in the course and scope of his employment where the employee attended the picnic at the request of his employer, was directly or indirectly compelled to attend, the employer controlled or participated in the picnic, and both the employer and employee mutually benefitted from the picnic.
Haarer v. Liberty Northwest Ins. Corp. [4/11/03] 2003 MTWCC 28 A ski lift operator at an exclusive ski club who is permitted to ski on a break, is paid while skiing, and is required to wear his uniform and answer questions of and render assistance to members while skiing, was in the course and scope of employment while skiing on his break. The recreational activity exception therefore did not apply and an accident occurring while he was skiing was a covered industrial accident.
Deigert v. Liberty Northwest Ins. Corp. [10/16/98] 1998 MTWCC 74 Skiing is a recreational activity within section 39-71-118, MCA (1995). However, to resolve the question whether a ski instructor skiing while not instructing is covered by the WCA, the Court must determine whether he was acting within the course and scope of employment when skiing. To do so, the Court applies the four-factor test set out in Courser v. Darby School Dist. No. 1, 214 Mont. 13, 16-17, 692 P.2d 417, 419 (1984), looking to (1) whether the activity was undertaken at the employer's request; (2) whether the employer, either directly or indirectly, compelled employee's attendance at the activity; (3) whether the employer controlled or participated in the activity; (4) whether both employer and employee mutually benefitted from the activity. The presence or absence of each factor may or may not be determinative and the significance of each factor must be considered in the totality of all attendant circumstances. Here, the WCC finds claimant was not in the course and scope of employment where he was not teaching a lesson, had not been asked by the employer to perform warm-up runs, the employer received only insubstantial benefit from the claimant's skiing in his "official" resort parka, and claimant was not in fact warming up to teach a lesson, but was skiing a hard run for his own enjoyment. The WCC distinguished Connery v. Liberty Northwest Ins. Corp., 280 Mont. 115, 929 P.2d 222 (1996), where the ski resort employer had encouraged ski instructors to take warm-up runs and the employee had been injured during such a run.

Zarn v. Liberty Mutual Fire Ins. Co. [10/9/98] 1998 MTWCC 70 The "recreational activity" exception from the definition of employee within section 39-71-118, MCA (1995) does not apply to a ten to fifteen minute conversation between two employees where the conversation included some subjects relating to work for Glacier Park, the injured employee had already started work, and the fall actually occurred as the employee left to commence work. The words "recreational activity" do not in their usual and ordinary sense encompass conversation. Moreover, the legislative history of the exception indicates the exception began as a limitation applicable to ski resorts (employees skiing as recreational activity) and, although the exception was expanded to include all employments, the focus of legislative concern were "recreational activities" such as skiing, golfing, hunting and dude ranching.

Zarn v. Liberty Mutual Fire Ins. Co. [10/9/98] 1998 MTWCC 70 The course and scope requirement is not so strict as to deny coverage where an employee engages in a minor deviation from his duties. As noted in Larson's treatise, under the modern trend of decisions, even if the activity cannot be said to advance the employer's interests, it may still be in the course and scope of employment if, in view of the nature of the employment environment, the characteristics of human nature, and the customs and practices of the particular employment, the activity is in fact an inherent part of that employment. At least some ministrations to the personal comfort and human wants of the employee must be included within the course and scope of employment.
Connery v. Liberty Northwest Insurance Corp. [7/22/96] WCC No. 9602-7507 Section 39-71-118(2)(a), MCA (1995) requires a two-part analysis: first, whether activity leading to accident was recreational; second, whether injured person was relieved of and not performing duties of employment at the time of the accident. Where ski instructor was engaged in warm-up run specifically recommended by employer in training manual, from which both employee and employer benefitted, and would finish her run at the place where she would begin a pre-assigned lesson, she was in course and scope of employment and injury was compensable. (Note: WCC affirmed in Connery v. Liberty Northwest Insurance Corp., 280 Mont. 115, 929 P.2d 222 (1996).)