Yesterday, the Tennessee Workers’ Compensation Appeals Board reversed a trial judge’s determination that an employee’s injury, sustained during participation in a charity “mud run” alongside co-workers, was compensable. The Board held the employee wasn’t “impliedly required” to race, nor was it part of his work duties.

In Pope v. Nebco of Cleveland, Inc., d/b/a Toyota of Cleveland, Gregory Pope, a salesman, testified at the compensation hearing that he felt pressured to join the team and that the dealership’s general manager was like a “father figure” to him. Toyota of Cleveland was a co-sponsor of the event.

Tennessee Code Annotated section 50-6-110(a)(6) (2016) generally doesn’t allow compensation for injuries stemming from an employee’s voluntary participation in athletic activities, unless the participation is “impliedly required” by the employer or participation was part of the employee’s work duties, among other exceptions. Judge Thomas Wyatt, Chattanooga, found both those exceptions applied to Mr. Pope and awarded workers’ compensation benefits.

Toyota of Cleveland appealed.

Attorneys Jennifer Locklin and William Brown engaged in a lively but civil discussion about their case after arguing the merits before the Appeals Board on Nov. 3 in Nashville.

At oral argument before the Appeals Board, Toyota of Cleveland emphasized it wasn’t the general manager who tapped employees to join the team, but a peer in Mr. Pope’s sales group.

“He was work-out buddies with the two other guys he asked,” said Toyota’s attorney, Jennifer Locklin. “He asked Mr. Pope because he knew he was in shape and he was a good friend of theirs. It wasn’t because he was going around asserting authority.”

The Board agreed in a 12-page opinion penned by Presiding Judge Marshall Davidson, which concluded the evidence “preponderated” against a presumption of correctness to Judge Wyatt’s findings.

The Board began its analysis by tracing the cases that led to the General Assembly adopting the statute at issue in 2009. The judges then reasoned, “Although Employee may have felt peer pressure to participate, such pressure is an inherent part of most competitive events of this nature. Whether Employee felt peer pressure to participate is not the determinative issue. Rather, the question is whether pressure was applied by the employer amounting to an express or implied requirement to participate.  Based on this record, it did not.”

The Board additionally found no evidence to support a finding that running the race was part of Mr. Pope’s work duties. The judges observed that Mr. Pope wasn’t paid for his time away from the dealership to participate in the event, nor was he required to attempt to sell vehicles, network, staff Toyota of Cleveland’s tent, or wear a t-shirt identifying him as its employee.

Judge Davidson wrote:

“Employee did not identify any work duty he was expected to perform at the mud run. Instead, he merely expressed his opinion that participation was part of his work duties and that he was there in a representative capacity. However, it is unclear how he could have been representing Employer, as it was not readily apparent to anyone attending the event that he worked for Employer.”

Because the Board concluded the injury was not compensable, it did not have to decide whether the attorney fee award was appropriate.

The Appeals Board, Judge Timothy Conner, Presiding Judge Marshall Davidson, and Judge David Hensley (left to right), listened intently to the arguments.