On appeal from Division of Workers' Compensation.
Botter, Pressler and O'Brien. The opinion of the court was delivered by Botter, P.J.A.D.
Petitioner James Cotton, an employee of appellant Worthington Corporation (Worthington), was injured on June 26, 1980, while playing in a softball game after work on a team composed of Worthington employees. The judge of workers' compensation held that Cotton's injury was compensable despite the stricter criteria incorporated in N.J.S.A. 34:15-7 by amendment that became effective on January 10, 1980. L. 1979, c. 283, § 1. We disagree with this holding and reverse the judgment below.
Petitioner was employed by Worthington at its East Orange plant on the day of the accident. He testified that he had been
playing on the "company" team for approximately three or four years. He said he "volunteered" to play when one of the foremen came around and asked employees who would like to play. The team played teams from other Worthington facilities and Worthington distributors. The team played approximately once every two weeks during the spring and summer. On the day in question petitioner finished work at 3:45 p.m. and the game started at approximately 4:30 p.m. in a public park. There were no facilities on company property on which softball games could be played, so employees would drive to nearby public parks where the games were held. Worthington did not supply transportation for these employees.
Petitioner's employer provided players with baseball caps with the Worthington logo (a large "W" with Worthington in small print written underneath), which were distributed at the plant. The company also supplied balls and bats, and, according to petitioner's proofs, refreshments such as drinks and hotdogs. Ronald Eriksson, a former industrial relations manager employed by Worthington, testified that the company had purchased softball equipment for use at its annual picnic which employees could borrow, but that the company did not sponsor a softball team. He testified that he had agreed to furnish 20 or 24 caps when asked to do so by one of the players, a foreman, but that he refused to furnish uniforms for the players. He also testified that there was a fund which annually amounted to approximately $15,000 to $20,000 from which funds were drawn to defray the cost of recreational activities for company employees. The fund was comprised of profits from vending machines as well as contributions made by Worthington. He denied that he had authorized the use of money from the fund for refreshments at softball games. According to Eriksson's testimony, the company sponsored an annual picnic attended by blue collar and white collar employees, a Christmas party for employees' children, a bowling team and a golf league. He denied that Worthington sponsored the softball team, describing the players as "a group of employees who liked to play softball." He also
testified that he never solicited the employees to play, nor did he ask "my people" to organize the games or anything else. He also said that he never attended a softball game in which the team participated. He testified that the company sponsored certain recreational activities because of their impact on morale and, consequently, on production. For that reason he said he encouraged employees to attend events which were sponsored by the company. He specifically denied that he purchased softball equipment because of the anticipated impact on production. As an example of the expenditures which came from the fund, he testified that the Christmas party for employees' children cost approximately $7,000 annually.*fn1
From the evidence concerning the large amount of money spent for employees' recreational and social activities at the East Orange plant, the judge below concluded that Worthington derived corporate benefits "over and above any improvement in employee health and morale." He concluded, therefore, that petitioner satisfied the test for compensability for injuries suffered during recreational or social activities within the meaning of N.J.S.A. 34:15-7. As amended this statute provides in part:
When employer and employee shall by agreement, either express or implied . . . accept the provisions of this article compensation for personal injuries to . . . such employee by accident arising out of and in the course of 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. . . . [Emphasis supplied] [192 NJSuper Page 471] The italicized portion of this statute was part of the amendment added by L. 1979, c. 283. The legislative intent was to restrict the class of compensable injuries occurring during recreational and social activities related to employment. Compare Joint Statement to Senate Committee Substitute for Senate Bill 802 and Assembly Bill 840*fn2 with Complitano v. Steel & Alloy Tank Co., 34 N.J. 300 (1961), rev'g on dissenting opinion below 63 N.J. Super. 444, 456 (App.Div.1960) (Conford, J.A.D. dissenting) and Tocci v. Tessler & Weiss, Inc., 28 N.J. 582 (1959). This restriction was accomplished by adding two criteria for compensability, namely, that the recreational or social activity be (1) "a regular incident of employment" and (2) "produce a benefit to the employer beyond improvement in employee health and morale." Aside from the brief reference in the joint statement quoted in note 2 above, the Legislature did not expressly state what it meant by these criteria, and the courts will have to furnish the needed interpretation. It is clear, however, that the Legislature intended to overcome the holdings in Complitano and Tocci, which broadened the test for compensability from that which had once prevailed in this State. See Stevens v.