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Grather v. The Gables Inn2/18/2000
On Appeal from Department of Labor & Industry May Term, 1999
Claimant Joseph Grather appeals from a Vermont Department of Labor and Industry Commissioner's decision denying him workers' compensation benefits for an injury sustained while skiing. The Commissioner has certified two question for our review: (1) whether claimant suffered an injury by accident arising out of and in the course of employment with the Gables Inn while skiing at Stowe on March 17, 1994, and (2) whether the amateur sports exclusion of 21 V.S.A. § 601(14)(B) bars this claim. Because we find that claimant's injury arose in the course of employment and that the amateur sports exclusion does not bar this claim, we reverse.
During the fall of 1993, claimant went to Stowe hoping to find a job for the winter that would enable him to ski. When he inquired at the Gables Inn, he learned that it had just advertised for a position as a "ski bum." The "ski bum" was expected to live at the Gables, prepare and serve breakfast in the mornings, and serve food and drinks at "apres ski" and dinner in the late afternoons. The position also entailed helping out with other chores, such as bringing in wood and shoveling snow. The compensation was $100 per week, room and board, tips, and a restricted ski pass that allowed the "ski bum" to ski Stowe Mountain, but only during the middle of the week. The job was designed to leave time free to ski between late morning and 4:00 P.M. in the afternoon. Claimant applied for the position and was hired within a few days. When he arrived for work, his employer encouraged him to become acquainted with the town and the slopes. Throughout the winter, claimant skied during his time off, using his "ski bum" pass. On Thursday, March 17, 1994, claimant worked the breakfast shift, then went skiing, where he crashed into a tree and incurred severe injuries.
Claimant was disabled for some time, and unable to continue his work at the Gables. He filed a claim for workers' compensation , alleging that his skiing injury arose out of and in the course of his employment because his skiing at Stowe Mountain benefitted his employer. See 21 V.S.A § 618(a) (personal injury compensable by employer if worker receives a personal injury by accident "arising out of and in the course of his employment").
I. Course of Employment
We consider first whether claimant's injury occurred during the course of his employment. In analyzing this question, the Commissioner applied the three-alternative test for injuries incurred during recreational or social activities outlined in 2 A. Larson & L. Larson, Workers' Compensation Law § 22.01 (1997).
According to Larson, recreational or social activities are within the course of employment when:
(1) they occur on the premises during a lunch or recreation period as a regular incident of the employment; or (2) the employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or (3) the employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.
Id. § 22.01. Quickly rejecting the first and second alternatives as inapplicable in this case, the Commissioner focused on the third alternative. The Commissioner found the claim failed there as well, because the Gables received no benefit from providing its employees with a ski pass beyond a general boost in morale. The Commissioner's inquiry was limited to whether the employer received any advertising or business adv
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