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Bender v. Dakota Resorts Management Group6/29/2005
eneral inquiry of whether the injury or condition complained of is connected to the employment. Id. Therefore, the factors are prone to some interplay and "deficiencies in the strength of one factor are sometimes allowed to be made up by strength in the other." Id. (quoting 2 Arthur Larson, Larson's Workers' Compensation Law, § 29, 29-1 (1999)).
[ .] In order for an injury to "arise out of" the employment, the employee must show that there is a "causal connection between the injury and the employment." Id. (quoting Canal Insurance Co. v. Abraham, 1999 SD 90, , 598 NW2d 512, 516). The employment need not be the direct or the proximate cause of the injury, rather it is sufficient if "the accident had its origin in the hazard to which the employment exposed the employee while doing work." Id. (quoting Canal Insurance Co., 1999 SD 90, , 598 NW2d at 516). The injury "arose out of" the employment if: 1) the employment contributes to causing the injury; 2) the activity is one in which the employee might reasonably engage; or 3) the activity brings about the disability upon which compensation is based. Id. (citing Grauel, 2000 SD 145, , 619 NW2d at 263).
[ .] "This Court has made it clear that the words 'in the course of employment' refer to the time, place and circumstances of the injury." Bearshield v. City of Gregory, 278 NW2d 166, 168 (SD 1979). An employee is considered within his course of employment "if he is doing something that is either naturally or incidentally related to his employment or which he is either expressly or impliedly authorized to do by the contract or nature of the employment." Id. See also Mudlin, 2005 SD 64, , ___ NW2d at ___; Steinberg v. South Dakota Dept. of Military and Veterans Affairs, 2000 SD 36, , 607 NW2d 596, 603.
[ .] It has also been recognized that when an employee is injured while engaging in recreational or social activities on the employer's premises on a scheduled break, the injury arises out of and in the course of employment as long as the activity is a "regular incident of the employment." 2 Arthur Larson, Larson's Workers' Compensation Law, § 22.01, 22-2 (1999). Professor Larson's treatise, which is often cited by this Court in workers' compensation cases, provides:
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 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. (emphasis added). According to Larson's treatise, if any of these three links to employment are met, compensation should be awarded. Id. at 22-7 to 22-8.
[ .] Professor Larson defines "regular incident of the employment" when "the activity is an accepted and normal one." Id. at 22-6. The recreational activity also "must be shown to have achieved some standing as a custom or practice either in the industry generally or in this particular place" in order for the activity to become an incident of employment. Id. at 22-8. Professor Larson further explains that:
Put negatively, this means that the course of employment does not embrace every spontaneous or unprecedented frolic that might be undertaken on the premises.
At what point the innovation becomes a fixture of the employment is the kind of
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