CP# 99-35379 Patterson v. Frito Lay
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
C.P. # 1999-35379
HENRY S. PATTERSON,
vs. FINAL DECISION
By: MONCHER, J.W.C.
FRITO LAY ,
For the Petitioner: CORNELIUS W. DANIEL, III, Esq.
For the Respondent: ROTELLA & SORIANO, Esquires
by: GERALD D. ROTELLA, Esq. & JOSEPH M. SORIANO, Esq.
Mr. Patterson was a route salesman for Frito Lay who delivered potato chips and similar product to supermarkets. He delivered product to his assigned customers 5 days a week for a wage of $550 per week plus commissions. Occasionally he would work over time on other routes. He claims that he injured his low back while playing golf on June 16, 1999 in a company golf outing. The injury required surgery leaving him with serious permanent physical impairment. Mr. Patterson now seeks medical and disability benefits. The question for resolution is whether participation in this golf outing was within the scope of petitioner’s employment or whether it falls within the statutory bar against coverage for recreational activities.
Both parties presented witnesses. There were two evidential exhibits, one was a list of attendees, the other was compilation of documents from the golf course including the a copy of the contract, deposit receipt and invoice. Counsel for each party was a capable thorough, articulate advocate. Each filed impressive written letter briefs which presented the facts and law in a light most favorable for their respective clients.
During the Spring of 1999, one or more of respondent’s local managers decided to organize “The first Annual Frito-Lay Golf Outing” at Ocean Acres Golf course for employees of the company. Announcements were placed on the bulletin board at the respondent's facility in Toms River and Burlington. The outing was scheduled for a Wednesday which was the normal day off for most driver salespersons. Apparently the drivers normal work week was 4 week days and a Saturday. Approximately 60 drivers and managers were eligible to attend, only 21 employees elected to attend. Only persons employed by Frito-Lay attended the golf outing. Although petitioner testified that customers, supermarket store managers or buyers, participated in the outing, he could offer no corroboration. The respondent’s managers testified no such persons were present or invited. I find respondent’s proofs to be more persuasive on this issue. I have no reason to believe Mr. Patterson while at the golf outing engaged in marketing or networking with present or potential customers.
The cost of the golf outing to each participant was set at $40 per person for the greens fee and golf cart rental fee. A manager who had control of the profits generated by a soda machine used by employees at the Toms River depot, used that fund to rebate $20 to each golfer. Following the round of golf, the golfers were treated to food and beer at a nearby restaurant. This was not a formal scheduled dinner, it appears to be an impromptu affair, a continuation of a day of fun and companionship for the attendees. The cost of the meal was paid for by Frito Lay, a district supervisor used his company issued credit card. Each golfer was given a company shirt. A regional supervisor congratulated the drivers for their performance over the past year.
Considering that only one-third of the drivers attended, I can not draw an inference that there was any particular pressure placed on the drivers to attend. Mr. Patterson testified he hoped to obtain a personal benefit by ingratiating himself with management which perhaps in the future, might lead to his being considered for overtime and more advantageous assignments. While the driver-salesmen while on the course may have discussed business issues or concerns, this certainly did not rise to the level of a training exercise or business meeting. It is not surprising that persons with a common employer and business endeavor might engage in discussion of their common interest while also engaging in typical golf course conversation. Was this an activity that could be considered to be within the scope of the employees work assignment or was it a social or recreation activity whose predominate feature was at best employee health and morale. I find that it was the latter, not the former.
Compensability of the injury is governed by N.J.S.A. 34:15-7, the pertinent language being
[C]ompensation for personal injuries . . . arising out of and in the course of the employment shall be made by the employer without regard to the negligence of the employer . . . in all cases except . . . when recreational or social activities, unless such recreational or social activities are a regular incident of employment and produce a benefit to the employer beyond improvement in employee health and morale are the natural and proximate cause of the injury. . .
This provision was added to the compensation statute in 1979 as a part of an overall reform of the compensation law which in part increased benefits for seriously disabled persons and as a balance for these increased costs ended benefits for several controversial areas. L. 1979 c. 283. The clear intent was to end the award of benefits for injuries occurring during recreational and social events unless a clear and obvious relationship to the very nature of the employment could be shown. Cotton vs. Worthington Corp., 192 N.J. Super. 467, 471 (App. Div. 1984); Sarzillo vs. Turner Construction Co., 101 N.J. 114, 118-122 (1985).
In Sarzillo, an employee of a construction company was injured while participating in a paddle ball game during lunch hour on the respondent’s premises. The company clearly had knowledge that its workers were eating on the premises and that they played this game during lunch time. The Court considered and rejected some of the very employment relation arguments offered here. It noted that the mutual benefit theory no longer applied in social or recreation situations. There must be a real connection to the employment duties.
Here, Frito Lay, the employer, exercised no compulsion to participate. This was not an incident of petitioner’s employment. Even if customers were present, I found there were none, Mr. Patterson was not engaged in marketing his employer’s products. He was not engaged in building good will with customers. His participation was not a form of compensation for services rendered. The only benefit to the employer was improvement in employee morale. The incidental association of the golf outing to the employment was so minor that it can not overcome the factual nexus to criteria which the legislature intended to bar the award of compensation benefits. Cotton vs. Worthington Corp., supra.192 N.J. Super. at 471 n. 2.
For all the foregoing reasons, I am required by the terms of the compensation law to dismiss the claim.
August 19, 2002
Lawrence G. Moncher, J.W.C.