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Lesuer-Johnson v. Rollins-Burdick Hunter of Alaska (4/12/91), 808 P 2d 266
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Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
JUDI J. LESUER-JOHNSON, )
) Supreme Court No. S-3493
Appellant, )
) Trial Court No.
v. ) 3AN-88-9367 Civil
)
ROLLINS-BURDICK HUNTER ) O P I N I O N
OF ALASKA and NATIONAL )
UNION FIRE INSURANCE CO., )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Ralph Stemp, Judge.
Appearances: Chancy Croft, Anchorage,
for Appellant. Patricia L. Zobel, Deirdre D.
Ford, Staley, DeLisio, Cook & Sherry,
Anchorage, for Appellees.
Before: Matthews, Chief Justice,
Rabinowitz, Burke, Compton, and Moore,
Justices.
PER CURIAM
Appellant Judy LeSuer-Johnson (LeSuer) was injured on
June 4, 1986, while playing softball at an Anchorage ballpark for
the Rollins-Burdick Hunter (RBH) team against an "insurance
league" opponent. The injury occurred after work hours, on a
field rented by the insurance league. LeSuer, an employee of
RBH, filed a claim for workers' compensation, alleging that the
injury arose out of and in the course of her employment. An
Alaska statute enacted in 1982 defines "arising out of and in the
course of employment"to include
employer-required or supplied travel to
and from a remote job site; activities
performed at the direction or under the
control of the employer; and employer-
sanctioned activities at the employer-
provided facilities; but excludes activities
of a personal nature away from employer-
provided facilities.
AS 23.30.265(2).
LeSuer's argument that her injury arose out of and in
the course of her employment is based on her employer's
connection to the softball team. RBH provided balls, bats, T-
shirts and caps for the team members. It paid $250 to the
league's organizers who rented the ballfield and purchased bases.
RBH encouraged its employees to either play on the team or attend
the game as spectators. In her job interview LeSuer was asked if
she played softball and if she would like to play on the company
team. She stated that joining the team was voluntary, but she
personally felt pressured to play by co-employees who wanted to
be sure that RBH had enough players to field the team each week.
The Workers' Compensation Board found for LeSuer. The
board concluded that participation on the softball team was both
employer-sanctioned and that it occurred at an employer-provided
facility:
We find RBH gave support and encourage
ment for their employees to participate on
the team. By paying the league fee,
providing part of the uniform, providing bats
and balls and permitting employees to perform
activities such as picking up the T-shirts
and hats as part of their work duties RBH
sanctioned the activity. . . .
Next we consider whether the injury
occurred at an employer-provided facility.
Defendants argued that the injury was not on
Employer's premises. However, the
legislature chose to use the term "facility"
and not premises. We find this terminology
distinction is important. Thus the injury
does not have to occur on an employer's
property to be compensable.
The term "provide"is defined in
Webster at 1144 as "to make available,
supply, afford; furnish with . . . ." We
find that paying the league fee RBH made
available to its employees a field on which
to play softball. We conclude that the
softball game was at an employer-provided
facility.
RBH appealed the board's decision to the superior
court. The court held that where, as here, a remote job site was
not involved, a four-part test rather than the two-part test set
out in the statute was appropriate. The court stated:
The criteria analyzed in Larson, 1A The
Law of Workman's Compensation 22.24(a)-(f),
for determining whether an injury on a
company team is compensable are the
appropriate factors to weigh in deciding this
case. They are primarily the time and place
of the recreation, the degree of the employer
initiative and encouragement, the financial
support and equipment furnished, and the
benefit to the employer.
The court remanded this case to the board for an
analysis using these factors. On remand, the board found in
favor of RBH with one member dissenting.
LeSuer then appealed to the superior court, which
affirmed the board's decision on remand. LeSuer now appeals this
decision.
In our view, the first decision of the board was
correct. That portion of AS 23.30.265(2) which pertains to
employer-sanctioned activities at employer-provided facilities is
not limited to remote job sites as the statute is written. If
the legislature had intended such a limitation it could have
easily been expressed. The board's conclusions that playing for
the RBH softball team was employer-sanctioned and that the injury
occurred at an employer-provided facility are supported by
substantial evidence.
For the above reasons, the decision of the superior
court is REVERSED and this case is REMANDED to reinstate the
first decision of the board.
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