89 P.R. 570 | Supreme Court of Puerto Rico | 1968
delivered the opinion of the Court.
The question for decision in this case is whether compensation may be had for injuries sustained by two executives of the Department of Labor in an accident which occurred in the parking area of a bowling alley after attending an activity which included dancing, refreshments and snacks, sponsored by the Bowling League of the employees of that Department for the purpose of presenting the trophies to the winning teams. This is a question of first impression in this Court.
The decision of the Industrial Commission granting to interveners Planell and Pérez the full protection of the law from which the Manager of the State Insurance Fund appealed to this Court was based on the testimony of several witnesses and certain documents admitted in evidence. The Secretary of Labor, Frank Zorrilla, testified that Planell is Assistant Secretary of the Department of Labor, acts in the absence of the Secretary, is his administrative assistant, and has supervisory, directive, and controlling powers over the work of the Department, and that Concepción Pérez Pérez is in charge of the Office of Studies on Technological Unemployment. The former had power, to require the services and attendance of the latter; that the Bowling League, composed
In its decision the Industrial Commission reviewed the documentary evidence presented in this case as follows:
“. . . (1) Memorandum of December 23, 1954, of the then Director of the Office of Personnel, Ramón Torres Braschi, addressed to the heads of departments and government agencies, urging all government offices to organize recreational activities through sports tournaments, including all sports, cultural acts, dances and outings; (2) memorandum of February 19, 1960,*575 addressed to the recreation officers of all departments, agencies and public instrumentalities by Antonio Cuevas Viret, Director of the Office of Personnel, inviting them to a meeting to be held on Tuesday, March 1, 1960, at 8:30 a.m., in the conference room of the Board of Personnel, for the purpose of discussing the renewal of interdepartmental sports activities by the organization of tournaments for ladies and gentlemen; (3) letter of July 20, 1960, from Clegg, of the Star Bowling Alley, of Rio Piedras, sent to the Department of Labor offering the services of that bowling alley; (4) letter of August 1,1960, from Alfredo Colón González, Executive Assistant to the Secretary of Labor, addressed to Clegg, granting him an interview for August 5, 1960, to consider the ‘bowling’ matter; (5) letter of September 26, 1960, from the Association of Secretaries of the Department of Labor, addressed to Alfredo Colón González, inviting him, in agreement with Israel Planell, to a meeting to be held on Wednesday, October 5, 1960, at 9:00 a.m., which meeting was held in the office of Planell; according to a document admitted at that meeting, they agreed to organize ‘a bowling team’ of the Secretaries of the Department of Labor; (6) letter of October 18, 1960, from the Association of Secretaries, addressed to the Assistant of the Committee in charge of interviewing Clegg in connection with the organization of a bowling team of the Department; (7) memorandum of the Association of Secretaries reporting on the meeting of the committee with Clegg referred to above, and calling for a meeting to be held in the bowling alley; (8) circular of November 7, 1960, from the Board of Directors of the Bowling League advising that the bowling alley had offered its facilities once again without charge; (9) circular No. 2 of November 14, 1960, informing that the Bowling League of the Department of Labor had been officially organized at the meeting held November 10, 1960, and that the first tournament would commence on November 17, 1960; (10) circular No. 3 of January 10, 1961, addressed to the members of the Bowling League, on the renewal of the tournament on January 12, 1961; (11) schedule [sic] of games of the bowling team and a program-invitation for the activity of April 21, 1961, announcing the presentation of trophies by the Secretary of Labor, dancing to two musical ensembles, refreshments, and appetizers.”
. . Because of the nature of these activities, it is necessary to maintain discipline in order not to bring into discredit the name of the Department which sponsors and encourages such activity, and this is why it is always advisable and prudent that one or two top officers be present so as to prevent the occurrence of unpleasant incidents. This was the main reason for the presence of Planell and Pérez in that place.”
For the reason stated, the Commission concluded that the accident sustained by Planell and Pérez occurred in the course and as a result of work and while in the performance of an activity inherent therein, and consequently it set aside the decision of the Manager of the State Insurance Fund disallowing compensation to the appellees and ordered the latter to extend to them the full coverage of the law. Commissioner De Jesús Mangual, in a concurring vote, added that according to the evidence the interveners attended the activity in question “upon the invitation and because they were bound in the discharge of their office.”
Appellant assigns as errors the conclusions of the Commission that (1) when the accident occurred Planell and Pérez were discharging duties of their employment; (2) that the social activity in question was sponsored by the employer; and (3) that the cases of the interveners are protected by the existing law. We shall discuss these assignments jointly as being closely related.
Section 2 of the Workmen’s Accident Compensation Act, No. 45 of April 18, 1935 (11 L.P.R.A. § 2), provides in part that:
“The provisions of this chapter shall be applicable to all such workmen and employees working for the employers to whom the following paragraph refers, as suffer injury, are disabled or lose their lives by reason of accidents caused by any act or function inherent in their work or employment, when such accidents happen in the course of said work or employment, and as a consequence thereof ....
*577 “This chapter, being of a remedial character, shall be construed liberally, and any reasonable doubt that may arise as to its application with regard to the existence of causal relation between the work or occupation of the workman or employee and the injury, disability or death, or the occupational character of a sickness, shall be decided in favor of the workman or employee, or his beneficiaries.1
“This chapter shall be applicable to all employers employing one (1) or more workmen or employees covered herein, whatever their wages may be. The Commonwealth Government and the several municipal governments, boards, commissions, authorities, instrumentalities, public corporations, and agencies of the Commonwealth shall be considered as employers, and as such shall come under the provisions of this chapter as regards workmen, employees, and officials used by them.” (Italics ours.)
Section 11 of that Act (11 L.P.R.A. § 12) provides that the review of the decisions of the Industrial Commission may be granted only on questions of law, or upon appreciation of the evidence when such evidence is of an expert nature. In the case under consideration the question involves a determination whether the accident which caused the injuries comes within the provisions of § 2 supra. It is, in the last instance, a determination of fact and of law and, consequently, it is reviewable as a question of law.
According to our holding in Montaner, Mgr. v. Industrial Commission, 53 P.R.R. 187, 189 (1938), the three requisites above-mentioned prescribed by § 2 must concur for an accident to be compensable; however, as we said later in Candelaria v. Industrial Commission, 85 P.R.R. 18 (1962), the requisites that the accident “ (1) arising out of any act or function; (2) peculiar to the work or employment; (3) and which occur in the course of said work or employment, were the object, in the past, of subtle interpretations which
Since the Manager of the State Insurance Fund extended administratively the coverage of the said Act to accidents occurring to public employees who participate actively in interagency sports competitions but not to the spectators, we will merely consider whether we would be warranted in law to extend the coverage of that law to the latter in recreational acts such as that held in this case, and more specifically, to the accidents sustained by executives of a government department who attend such act for the purpose of “avoiding incidents . . . and also to maintain good will and fellowship among those present.” The Commission concluded “that the presence of Planell and Concepción in this activity sponsored
The well-known author William R. Schneider sums up the rule applicable to eases such as this as follows:
“Generally, injuries suffered by an employee while watching, participating in, or going to or coming from recreational activities sponsored in whole or in part by the employer, are not compensable, since such injuries are usually sustained while the employee is not performing any • duty for which he had been either expressly or impliedly employed. In other words the injuries cannot ordinarily be said to have resulted from an accident arising out of and in the course of the employment.
“A distinction is made, however, in those cases where the recreation which caused the injury, either directly or indirectly, was sponsored by the employer as a matter of business and not because of altruistic motives. That is, the employer exercised control or domination over the recreation for the purpose of developing better service and greater efficiency among the employees, thereby reaping a direct business benefit from the recreation sponsored.” 6 Schneider, Workmen’s Compensation 519.
In considering the compensability of injuries sustained during recreational activities, the courts have established a number of criteria for determining whether the employment and the recreation are so closely related as to warrant compensation. In Moore’s Case, 110 N.E.2d 764, 766, 767 (Mass. 1953), the court enumerates them as follows:
“(1) The customary nature of the activity.
“(2) The employer’s encouragement or subsidization of the activity.
“(3) The extent to which the employer managed or directed the recreational enterprise.
“ (4) The presence of substantial pressure or actual compulsion upon the employee to attend and participate.
“ (5) The fact that the employer expects or receives a benefit from the employees’ participation in the activity, whether by*580 way of improved employer-employee relationships; through greater efficiency in the performance of the employees’ duties, by utilizing the recreation as partial compensation or additional reward for their work, or for advertising the employer’s business, or as an actual adjunct of his business.”
The presence or absence of any of the factors enumerated does not solve the question. What is necessary in each case is an evaluation of the significance of each existing factor in connection with the activity as a whole. On that evaluation depends ultimately the decision on the proximity of the relationship between the employment and the recreational activity. See note entitled Workmen’s Compensation — Recovery for Recreational Injuries, 25 N.Y.U.L. Rev. 149 (1950).
In Adela Landry’s Case, 190 N.E.2d 208 (Mass. 1963), the same court had occasion to apply the doctrine announced in Moore’s Case, supra, holding that the injury sustained by the employee while dancing at a Christmas party given by the employer to his employees at a hotel at which attendance was optional did not arise out of and in the course of the employment. Compensation was denied.
In Wilson v. General Motors Corporation, 84 N.E.2d 781 (N.Y. 1949), it was held that the injuries sustained by an employee in a sports competition, unrelated to his employment, remote from the place of work and its risk, not compelled or controlled by the employer, was not compensable, notwithstanding the employer provided some financial aid for such activity, adding that “Too tenuous and ephemeral is the possibility that such participation might perhaps indirectly benefit the employer by improving the workers’ morale or health or by fostering employee good will.” (Italics ours.)
In Stout v. Sterling Aluminum Products Co., 213 S.W.2d 244 (Mo. 1948), it was said that the speculative and intangible benefits the employer could obtain from the creation of good will between the employer and the employees, standing
In F. Becker Asphaltum R. Co. v. Industrial Commission, 164 N.E. 668 (Ill. 1928), it was held that a picnic which the employer customarily held for his employees for the purpose of creating a good feeling among them, boosting their morale and aiding business, had no relation to the purpose for which the injured was employed, and, consequently, that the injuries sustained by that employee on his way to the activity were not recoverable.
An analysis of the best-known cases in which compensation was allowed for injuries sustained by an employee in a recreational activity shows that in those cases one or several of the following circumstances have concurred:
(1) The employer organized the activity and subsidized part or all of the cost thereof.
(2) The accident occurred within the employer’s regular work area.
(3) The enterprise concerned was a commercial enterprise (sales, etc.) which may derive a direct benefit from the success of the activity.
(5) The employer effectively induced the employees to participate in the activity by offering to pay for the hours of the celebration.
(6) The employer chose the place for the activity, being therefore responsible for the danger of the place chosen.
(7) The employer provided transportation to and from the place of the activity.
(8) The activity itself was by way of reward by the employer to his employees.
(9) The practice of holding such activity was so deeply rooted as a tradition in the employment that it constituted part thereof for the employees.
(10) The employer took the occasion to address himself to the employees by means of speeches urging them to develop greater work efficiency.
(11) The jurisdiction was one where the statute expressly provides that in any claim of this nature the employee shall be covered by the presumption that the accident is recoverable until it is otherwise shown.
(12) The claimants participated in the activity or sports carried out.
O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504 (1951); Torres v. Triangle Handbag Mfg. Co., 211 N.Y.S.2d 992 (N.Y. 1961); Noble v. Zimmerman, 146 N.E.2d 828 (Ind. 1957) ;
The Industrial Commission did not cite specific case law in support of its conclusion in this case. Commissioner De Jesús Mangual did so in his concurring vote, pointing out the criteria or factors above enumerated which should be taken into consideration in cases such as the present. In support of his conclusion that the risk to which the Department of Labor, the employer herein, exposed Planell and Pérez is reasonably incidental to his employment, he cites the cases of Graves, supra, Turner, supra, and Bocó v. Industrial Commission, 52 P.R.R. 836 (1938). The decisions in these cases do not warrant nor support the conclusion of Commissioner De Jesús Mangual. In Graves, supra, the accident occurred while an employee attended a picnic which the employer conducted every year for its employees and to which his superior insisted that he attend while at the same time he performed stand-by duties of his office keeping in contact by radio with an electric plant of the employer. Compensation was allowed for the death of the employee. The court held that the accident in which the employee was drowned arose from the conditions of the employment and that this condition was foreseeable. Unlike the case at bar, in the cited case the employer provided the activity which was already a practice and a custom in the employment and it chose the place for the activity.
In the case before us the Department of Labor did not choose the place for the party outside the employer’s regular work area, nor conducted it, nor subsidized the expenses, nor required the presence of Planell and Pérez in the discharge of their respective offices. At the most, he required the assistance of Planell for the presentation of the trophies and the latter in turn required that of Pérez. However, after attending personally and then retiring from the
Conceding that the activity in question, as testified by the Secretary of Labor, “promotes greater friendship, good will, among the employees and officers of the Department, which in turn also helps to create a better climate for the work itself,” the possibility that Planell’s and Pérez’ participation in that activity could perhaps benefit the employer indirectly “is tenuous and ephemeral,” as stated in Wilson, supra, and confirmed in other language in Stout, supra, and F. Becker Asphaltum R. Co., supra. In view of the nature of the festivity conducted by the employees in the place and form and manner which they themselves chose, the fact that Planell and Pérez imposed upon themselves, as executives of the Department of Labor, the obligation to maintain order so as to prevent unpleasant incidents which could detract from the purpose thereof, can in nowise warrant the conclusion that such actions on their part were so closely and intimately related to the functions of their respective offices, had such a proximate causal relation, that the accident which caused the injuries arose from an act or function in
The decision entered by the Industrial Commission on November 21, 1962 will be set aside.
This paragraph on liberal construction was added by Act No. 94 of June 22, 1957. This amendment incorporated the former doctrine of this Court to the same effect.
The doctrine of O’Learry, supra, was applied in Noble, supra, in which compensation was allowed for the death of an employee who drowned while attempting to rescue two persons in a channel running along a recreation center in Guam provided by the employer engaged in construction work. The ground adduced in this case for allowing compensation was that the conditions or duties of the employment created a special danger zone from which the danger arose. See the dissenting opinion in Noble.