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The Injured Reserve: Determining the Scope of the Recreational Waiver

1/29/2015 | Category: Workers Compensation-Allowance
Ross, Brittain & Schonberg often receives great questions regarding the “Recreational Waiver” or the “C-159” form.  As you know, an injured employee means a potential workers’ compensation claim.  But, because no one wants to rain on a picnic, the BWC allows employees to waive their rights to a workers’ compensation claim if they sign the C-159 form.

Here’s what we know about the waiver.  The BWC provides a copy of the C-159 on its website (  The form gets its authority from the Revised Code Section 4123.01(C)(3).  The statute reads, a compensable injury does not include an injury incurred in voluntary participation in an employer-sponsored recreation or fitness activity if the employee signs a waiver prior to engaging in the recreation or fitness activity. 

To complete a valid waiver, the following requirements must be met.  One, participation in the employer-sponsored recreation or fitness activity must be voluntary.  Two, the waiver must specifically list all the employer-sponsored activities and fitness programs for which the employee wishes to waive workers’ compensation coverage (this eliminates the possibility of a global waiver signed at hiring).  Three, the employee must sign and date the form prior to the date of injury, or, in an occupational disease claim, the date of disability.  Four, the employer must retain the original executed form and provide a copy to the employee.  And five, the employer should submit a copy to the BWC only if a claim is filed for an injury or occupational disease sustained in the employer-sponsored recreational activity or fitness program, and the employer contests the claim on the basis of the waiver.

There are two important limitations to this waiver:  
  1. The waiver is only valid for two calendar years; and 
  2. The waiver may not bar any workers’ compensation claim filed for death benefits by the employee’s dependents.  
Unfortunately, this does not answer all of our questions.  Generally speaking, the questions we receive boil down to this: how far can we extend the waiver?  If we imagine a spectrum, at one end would be activities completely unrelated to employment and a waiver would be unnecessary because the injury would not be compensable regardless of the waiver.  At the other end of the spectrum would be activities related to employment but not considered recreational activities or fitness programs and, therefore, compensable despite having a waiver.

For example, what if the employer sponsored a charity walk among lots of other employers?  First, we can probably assume a charity walk would be considered a recreational activity or fitness program.  The real issue for this scenario is whether a waiver is necessary because the injury may not have arisen out of or in the course of employment.

For this question, Ohio case law may be of some assistance.  In Kohlmayer, the claimant broke his neck after diving off a pier during the company picnic.  The Ohio Supreme Court held that an injury sustained by an employee attending a picnic that is sponsored, paid for, and supervised by the employer for the purpose of generating friendly relations with the employees is sustained in the course of employment. 

On the other hand, in Henderson, the claimant suffered an injury while participating in a bowling league with coworkers and non-coworkers alike.  The Court of Appeals in that case held the claimant’s injury did not relate to his employment because
  1. The employer did not derive any benefit from the employee’s participation in the league, 
  2. Membership was not limited to employees, 
  3. There were no company uniforms or logos, 
  4. The employer did not supervise the activity or pay any participations fees, and 
  5. The bowling occurred after work hours and away from the employer’s premises.
From the above two cases, the Courts will be less likely to hold an employee’s injury compensable if the charity walk takes place during non-work hours, off the premises, with non-employees as well, and the employer does not provide uniforms with logos, supervise the walk, nor pay entrance fees. This makes for a long checklist. Rather than waste time analyzing the situation, we suggest that if the employer wants to sponsor a charity walk and anticipates employees attending, have your employees sign a waiver.

In case you forget to execute a waiver, another Court of Appeals case suggests that a charity-walk injury may not be compensable anyways.  In Williams, the employer sponsored a blood drive at which the employee suffered an injury.  The Court in that case held, “acts that are nothing more than the discharge of a person’s duties as good citizen or member of the community are not within the course of employment, even if they take place on the employment premises and may have been requested by the employer.”  Although helpful, this case appears to be narrowly tailored to charitable situations and does not seem to address our main concern about the scope of the waiver.

Another question concerns the infamous holiday party:  what if an employee slips on the dance floor and sustains a knee injury?  Based on the cases cited above, the typical employer-sponsored holiday party would probably be considered related to employment just like a picnic. 

The crux of the holiday-party issue goes to the definition of “recreational activity” or “fitness program.”  Unfortunately, Ohio case law does not provide us with any guidance on definitions.  A court would be hard pressed to consider a one-time dance party as a fitness program. But could dancing be considered a recreational activity? Or could the entire party be considered a recreational activity?  It is this author’s opinion that the courts may attempt to prevent a slippery slope and limit the waivers to physical recreational activities that have inherent risks of injuries, like dancing and other sports.  The best advice would be to list the holiday party on the waiver but then elaborate on the specific physical activities that will be available such as dancing.

To sum up our advice, it is better to be safe than sorry! Accidents happen and can be costly. The courts do not provide us with a lot of guidance but the only way to make a waiver argument is to have the waiver properly executed ahead of time.  If you have any further questions about waivers or would like advice in filling one out, please do not hesitate to contact the attorneys at Ross, Brittain & Schonberg.  We are glad to help and look forward to hearing from you.  

Ross, Brittain & Schonberg Co., L.P.A.

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