Ezzy v. Workers' Comp. Appeals Bd

In Ezzy v. Workers' Comp. Appeals Bd. (1983) 146 Cal. App. 3d 252 , the employer expected the employee to play on the law firm's softball team in a regularly scheduled game, and that is what she was doing when she was injured. (Ezzy, supra, 146 Cal. App. 3d at pp. 257-258, 263-264.) In Ezzy, a partner of the law firm handed the employee a t-shirt and schedule and said the team would see her at the next game. While this was less than a direct order, it was not a mere invitation to play should she so desire. (Ezzy, supra, 146 Cal. App. 3d at pp. 257, 258.) The Court of Appeal noted that what is now subdivision (a)(9) was added by the Legislature in reaction to decisions that had allowed workers' compensation for injuries suffered by employees during off-duty activities where the activities "were reasonably foreseeable or expectable in the work setting." (146 Cal. App. 3d at p. 261.) The court concluded the subdivision was "intended to draw a brighter line delimiting compensability by replacing the general foreseeability test with one of 'reasonable expectancy' of employment" (ibid.), a test that is met when the employee subjectively believes his or her participation in the activity is expected by the employer, and the belief is objectively reasonable. (Id. at p. 260.) The claimant in Ezzy was injured while playing in a regularly scheduled league softball game sponsored by her employer's law firm. (Ezzy, supra, 146 Cal. App. 3d at p. 257.) While the Court of Appeal considered the case to be close, it found the injury was compensable because (1) the claimant, a part-time law clerk in her second year of law school, was particularly vulnerable to pressure or suggestion that she play, (2) she felt she was essentially "drafted" to play when a partner handed her a t-shirt and schedule and told her that the team would see her at the next game, (3) female employees were pressured to play so the team would not forfeit due to the league's requirement that a team have four women on the field at all times during a game, (4) the firm paid for all equipment, T-shirts, and post-game refreshments, and hosted an awards banquet for players, (5) the firm benefited through improved office cooperation, spirit, morale, and camaraderie, and (6) the firm had not posted or read to its employees the provisions of what is now subdivision (a)(9). (Id. at pp. 257-258, 263-264.) The Court noted that the statute "was ... intended to draw a brighter line delimiting compensability by replacing the general foreseeability test with one of 'reasonable expectancy' of employment." (Id. at p. 261.) In Ezzy, a second-year law clerk sustained an injury while playing softball on her firm's softball team. The Ezzy court concluded that the injury was compensable, because the evidence showed that the employee reasonably believed her employer expected her to play on the team. (Ezzy, supra, 146 Cal. App. 3d at p. 263.) The Ezzy court explained that an injury is not excluded from the compensation bargain under subdivision (a)(9) if the employee subjectively believed that the employer expected the employee to participate in the recreational, social, or athletic activity, and the employee's belief was objectively reasonable. (Ezzy, supra, 146 Cal. App. 3d at p. 260.) "The effect of this test is to recognize only expectations which are objectively reasonable." (Ibid.)