Skiing on Thin Ice

By Judge Robert V. Durham, Cookeville

Robert DurhamAs we crawl toward spring (I don’t care what the calendar says; February is never the shortest month) and leave the possibility of snow behind, I am reminded of the part of the Workers’ Compensation Act that has always intrigued me the most: the exemption for voluntary “ski patrolpersons” in section 50-6-106(B)(7). In Tennessee, if you are hurt performing ski patrols in exchange for food, lodging or skiing privileges, you can’t receive work comp benefits.

Now, while Tennessee encompasses some of the most beautiful and diverse geography in the country, it’s hardly a skiing mecca. In fact, if you google “ski resort” and “Tennessee” you’ll only find one, Ober Gatlinburg. I can’t imagine there was ever a time when volunteer ski patrolpersons were dropping like flies all over the slopes of Ober Gatlinburg, and the legislature decided it was time to take a stand against this threat to Tennessee’s economy. A case law search failed to turn up a single case in Tennessee where a ski patrolperson, volunteer or otherwise, sought workers’ compensation benefits.

So—why volunteer ski patrolpersons?

I’m afraid I might never know the answer. While I suspect some astute politicking on the part of the Gatlinburg town fathers, the fact is that it has been a part of the law ever since I’ve been a lawyer, which means more than 25 years. The online archives detailing a statute’s legislative history only go back 20 years. While I’m intrigued, I’m not curious enough to travel to Nashville to spend the day physically searching for the section’s legislative antecedents. It seems I’m doomed to be forever flummoxed.

However, on a whim, I broadened my search beyond Tennessee and made some interesting discoveries. For example, North Carolina, where the rest of the Great Smoky Mountains lies, has an almost identical statute on its books. Some of the western states—California, Nevada, Oregon, and Idaho–where you would expect the issue to be a more pressing concern, have similar statutes; however, many other western states don’t appear to have bothered. (As with most of my musings in these blogs, this “research” is hardly conclusive, and I would not advise you to rely upon it as a source you might wish to cite.) Finally, I found a reference to a Wisconsin case where the Tennessee legislators’ greatest fear appears to have been realized—a ski patrolperson, compensated only with meals and skiing privileges, was determined to be an employee for purposes of workers’ compensation.

So, take heed, voluntary ski patrolpersons: Ski with both eyes open. While you may swoosh down Wisconsin slopes safely under the wing of workers’ compensation, it’s a different matter altogether in Tennessee. I just wish I knew why.

sunburst

Ski patrol at Sunburst in Kewaskum and elsewhere in Wisconsin may rest assured knowing they are eligible for workers’ compensation benefits, but patrolpersons in Tennessee are out of luck.

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