Divided SC Supreme Court Says Injuries Sustained Playing Kickball Were Compensable

In a divided decision, the Supreme Court of South Carolina today held that an employee’s injuries sustained in a game of kickball arose out of and in the course of the employment [see Whigham v. Jackson Dawson Communications, 2014 S.C. LEXIS 367 (Aug. 27, 2014)]. The majority held that under the facts of the case, the employee was required to attend the kickball game since he had organized it for the employer.

Whigham was employed as Director of Creative Solutions at his employer, a marketing, advertising, and public relations company. As part of his employment, Whigham attended meetings wherein the managers discussed, among other things, the importance of team-building events. Whigham conceived the idea of having a company kickball game. The idea was approved by Whigham’s superior and Whigham went about planning it. The employer budgeted $400 for special T-shirts, drinks, and snacks. Once the event was organized, Whigham used the company intranet to promote it and encourage attendance. Roughly half of the firm’s employees attended. Whigham was injured while playing the game, landing awkwardly on his right leg, shattering his tibia and fibula. He was taken away in an ambulance and eventually underwent two surgeries. His doctor later informed him he would need a knee replacement. The single commissioner denied compensability on the grounds that the injury did not arise out of or in the course of Whigham’s employment. Specifically, she found Whigham was neither required to attend the event, nor was there any benefit beyond general employee morale to the company. The full commission affirmed, essentially adopting the single commissioner’s order. The court of appeals affirmed in a memorandum opinion, citing cases involving the substantial evidence standard.

The majority disagreed. Quoting Larson’s Workers’ Compensation Law, § 22.01, the majority held that Whigham was impliedly required to attend the kickball game he organized; it became part of his services. The majority added that while the event may have been voluntary for company employees generally, the undisputed facts unequivocally indicated Whigham was expected to attend as part of his professional duties. According to the majority, because the event was part of Whigham’s employment, it did not need to consider whether the employer drew any level of benefit from the kickball event.