W.C. No. 4-226-506Industrial Claim Appeals Office.
February 28, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ) which denied and dismissed his claim for workers’ compensation in connection with an injury sustained during a recreational softball game. We affirm.
To recover workers’ compensation benefits, the claimant is required to prove that his injury arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. (1995 Cum. Supp.). The claimant concedes that the test for determining whether a recreational activity falls within the course and scope of employment is set forth in City and County of Denver v. Lee, 168 Colo. 208, 450 P.2d 352 (1969). See also, §8-40-301(1), C.R.S. (1995 Cum. Supp.); Karlin v. Conard, 876 P.2d 64
(Colo.App. 1993). In Lee the Supreme Court held that the factors to be considered include: 1) whether the activity occurred during working hours; 2) whether it occurred on or off the employer’s premises; 3) whether participation was required; and 4) whether the employer initiated, organized, sponsored, financially supported, or derived benefits from the activity.
Based upon these factors and the testimony of Mr. Hoysick, the employer’s President and Regional Manager, the ALJ determined that the claimant’s injury did not arise out of and in the course of the claimant’s employment for First Investors Corp. (the employer). The ALJ’s determination was based on the following findings of fact.
The claimant’s participation on the recreational softball team was completely voluntary and participation had no relationship to the claimant’s advancement in the company. The claimant was not performing any duties for his employer at the time of the injury. The claimant was also free to play on another team, in a different league, if he desired. The employer did not initiate the recreational activity, financially sponsor the team, provide transportation to the games, pay the claimant to be on the team or reimburse the claimant for any fees and expenses incurred as a member of the team. Mr. Hoysick provided bats and balls and the City of Denver sponsored the league and provided umpires, and bases. The softball games and all practices occurred off the employer’s premises during non-work hours. Further, the ALJ determined that there was no evidence to suggest that having the employer’s name on the team shirts fostered any good will or brought in any clients to the employer.
On review, the claimant points out that in Lee the Supreme Court also stated that “other factors may be present which indicate whether the employer is sufficiently close to the activity to identify with it and make it incidental to employment.” The claimant suggests that “other factors” present here are that the team had been in existence for over five years, that the team was composed primarily of the employer’s staff and clients, that claimant’s suggestion to get more talented, non-employee team members was rejected by Mr. Hoysick, and that Mr. Hoysick organized the team. The claimant also relies upon Mr. Hoysick’s testimony that the employer benefitted from the recreational softball in the form of team building and incidental advertising. Further, the claimant suggests that he felt an “implied compulsion” to remain on the team, because he was an “excellent player” and the team coach. Therefore, the claimant contends that the ALJ erred in failing to find that the softball games were incidental to his employment. We reject these arguments.
Where the record contains conflicting evidence the existence of factors indicating that the recreational activity is incidental to the claimant’ employment, is a question of fact for resolution by the ALJ City and County of Denver v. Lee, supra; Karlin v. Conard, supra. Accordingly, we are bound by the ALJ’s factual determinations that are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); City of Northglenn v. Eltrich, 908 P.2d 139
(Colo.App. 1995), cert. granted December 18, 1995.
In City and County of Denver v. Lee, supra, the Supreme Court did not expressly state what “other factors” are pertinent to a determination of whether a recreational activity falls within the course and scope of employment. Furthermore, in City of Northglenn v. Eltrich, supra, the Court of Appeals noted that, in Lee, the Supreme Court did not conclude that the presence of any one or more factors compels a conclusion that a recreational activity is within the course and scope of employment. Nor did the Supreme Court dictate the relative weight of the various factors to be considered by the ALJ, although the Eltrich court considered whether the recreational activity was initiated by the employer and occurred during normal work hours on the employer’s premises to be particularly significant factors. Therefore, we understand the sufficiency and weight of the expressly stated factors, and the “other factors,” to be the prerogative of the fact finder.
Insofar as the evidence in this case is subject to conflicting inferences, it was the ALJ’s sole prerogative to resolve the conflicts against the claimant based upon his determination to credit the testimony of Mr. Hoysick. See Wells v. Del Norte School District C-7, 753 P.2d 770
(Colo.App. 1987). Furthermore, the ALJ’s factual determinations are supported by substantial evidence and plausible inferences drawn from the testimony of Mr. Hoysick.
We may not interfere with the ALJ’s credibility determinations or the probative weight he afforded the evidence he found persuasive. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988). Consequently, the existence of some evidence which, if credited, might support the inferences sought by the claimant is immaterial on review F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Moreover, the ALJ’s findings of fact support a conclusion that the claimant’s injury did not arise in the course and scope of his employment Lindsey v Public Service Co. of Colorado, 362 P.2d 407 (1961); Karlin v. Conard, supra. Therefore, the ALJ did not err in denying the claim. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).
The claimant’s further arguments to the contrary do not alter our conclusion. In Karlin v. Conard, supra, the employer’s business was providing golf tournaments. Under these circumstances, the court concluded that the claimant’s participation in a recreational golf tournament, where he was subsequently injured, benefitted the employer because it promoted the very activity which was the employer’s business. Unlike the facts i Karlin, the claimant concedes that his employer’s business was not softball. Rather, the employer’s business was the provision of investment and financial services. Therefore, evidence that the softball team provided an indirect benefit to the employer by “fostering team spirit and cooperation,” does not compel a finding that the claimant’s participation promoted the very activity which the employer was in the business of providing. Accordingly, we are not persuaded that the ALJ erred in finding that the indirect benefit received by the employer from the softball team was insufficient to bring the activity within the course and scope of the claimant’s employment. See Lindsey v Public Service Co. of Colorado, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 16, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed February 28, 1996 to the following parties:
Steven T. Sherman, 8636 Yukon St., Arvada, CO 80005
First Investors Corp., Attn: James Hoysick, 7400 E. Orchard Rd., Englewood, CO 80111
Liberty Mutual Fire Insurance, Attn: Leona Zuffoletto, 13111 E. Briarwood Ave., Ste. 100,
Englewood, CO 80112
Amado L. Cruz, Esq., 6000 E. Evans, Ste. 1-428, Denver, CO 80222 (For the Claimant)
Jonathan S. Robbins, Esq., 1120 Lincoln St., Ste. 1606, Denver, CO 80203 (For the Respondents)
BY: _______________________