The provisions of Section 287.120.7 RSMo applicable to an injury occurring on 5/16/03 provide as follows:
Where the employee's participation in a voluntary recreational activity or program is the proximate cause of the injury, benefits or compensation otherwise payable under this chapter for death or disability shall be forfeited regardless that the employer may have promoted, sponsored or supported the recreational activity or program, expressly or impliedly, in whole or in part. The forfeiture of benefits or compensation shall not apply when:
(1) The employee was directly ordered by the employer to participate in such recreational activity or program;
(2) The employee was paid wages or travel expenses while participating in such recreational activity or program; or
(3) The injury from such recreational activity or program occurs on the employer's premises due to an unsafe condition and the employer had actual knowledge of the employee's participation in the recreational activity or program and of the unsafe condition of the premises and failed to either curtail the recreational activity or program or cure the unsafe condition.
As was pointed out by the court, the term "voluntary recreational activity" is not defined by statute, nor does the statute provide examples of activities contemplated by its forfeiture provisions. Graham v. La-Z-Boy Chair Company, 117 S.W.3d 182, 185 (Mo. App. S.D. 2003). In Graham, the court concluded that the activity involved is not to be deemed "recreational" for purpose of the statute, and the forfeiture not to be in effect, if the involved activity engaged in by the employee results in a mutual benefit to the employee and to the employer, citing the "mutual benefit doctrine" as articulated in Brenneisen v. Leach's Standard Serv. Station, 806 S.W.2d 443, 448 (Mo. App. E.D. 1991). The interplay between Section 287.120.7 and the mutual benefit doctrine was further discussed in Custer v. Hartford Insurance Company, 174 S.W.3d 602, 615-616 (Mo. App. W.D. 2005), where the court cites to Graham and states, "More specifically, where an employee's participation in golf tournaments benefits his employer's business in some way, the golf tournament cannot be considered to be purely recreational so as to trigger the provisions of Section 287.120.7."
The court in Custer, at p. 615, further ruminated over the case law as it applies to injuries sustained while attending or traveling to or from employer sponsored social or recreational functions, and stated as follows:
The cases reveal that no general rule has been developed which can be
applied to all situations for the determination of the circumstances under which the injury may be considered to have arisen out of and in the course of employment, with the result that the determination is made by the consideration of various relevant factors, accorded varying degrees of weight, applied to the particular facts and circumstances of each case. In as much as injuries sustained by an employee in connection with an employer-sponsored event usually occur while the employee is not performing the duties for which he was employed, the inquiry is whether the social affair is sufficiently related to the employment to justify the conclusion that the injury arose out of and in the course of employment. Whether an employee injured while attending or traveling to or from an employer-sponsored social affair was compelled, directly or indirectly to attend, whether the employer derived some benefit from his sponsorship of the function, the extent to which the employer sponsored, controlled, or participated in the activity, and whether the social affair was a benefit or consideration of employment to which the employee was entitled, have been recognized as the primary elements to be considered in determining the compensability of the injury. Ludwinski, 873 S.W.2d at 892 (quoting Riggen v. Paris Printing Co., 559 S.W.23d 625, 629 (Mo.App. W.D. 1977)
The recreational activity involved in this matter, a paintball competition, was so integral to the agenda of the employer that a roster of teams was created and disseminated to the employees prior to the business meeting, and the business meeting itself was held at a paintball facility secured by the employer for the exclusive use of the employer during the business meeting and recreational activity that followed. When asked whether the meeting was different from the typical monthly meeting, John Woodhead responded as follows:
What the meeting was, my boss, Rich Frey, who is the vice president/general manager, he wanted to have his whole division in for a meeting and afternoon of fun to kick off the summer and do all the, you know, rah-rah stuff and have a good time, as well as kind of do a business review as to what happened and what's upcoming. (Employer and Insurer's Exhibit No.2, at page 7).
The employer had an interest in the competitive balance of the respective teams captained by upper management, and left it to Ms. Lohman to draw up the rosters accordingly. The employer also had an interest in promoting participation, which was not mandatory, but which was clearly expected of the employees, as suggested by the comments of Mr. Woodhead in the following from his deposition:
Q: When you got to the meeting, were there any announcements made with regard to the agenda or what was going to happen that day?
A: Yes.
Q: Do you recall what was said?
A: I believe the agenda was put up on the screen. We had, like, an area where we all sat and then a big screen where we did the presentation. And it was all outside, so it was- you know, we had like this overhang that we were in.
And Rich, my boss, put up on the agenda, "Here's what we're going to do. We're going to go through what happened and what's going to happen"-you know, each of us captains took a piece of the meeting-"and then at the end, we're going to go out and have some fun and play some paintball." And that's what the agenda said.
It seems to this fact finder that the purpose of both the business agenda and the paintball was to allow upper management and lower management to recognize common goals in anticipation of working together in a competitive environment to reach those common goals. The business portion of the meeting and the paintball portion of the meeting blended in seamlessly together through the efforts of the company to organize the meeting at the paintball facility and to provide a ready list of captains and team rosters. The following is the test articulated by the Missouri Supreme Court as to the nature of the benefit required to invoke the mutual benefit doctrine:
Each case turns on its own facts under the mutual benefits doctrine. The test is not whether any conceivable benefit to the employer can be articulated no matter how strained, but whether the act that resulted in the injury is of some substantive benefit to the employer. That is not to say the benefit needs to be tangible or great. Bybee v. Ozark Airlines, 706 S.W.2d 570, 572 (Mo.App.1986). But the benefit cannot be so remote that it deprives the mutual benefit doctrine of meaning. Blades v. Commercial Transport, Inc., 30 S.W.3d 827, 831 (Mo banc 2000)
The employee and the employer are found to have received a mutual benefit from the paintball activity that led to the meniscus injury suffered by Mr. Jackson on 5/16/03. The claimant is found to have sustained an injury by accident arising out of and in the course of his employment.