Dorsch v. Industrial Commission

• Decision Date: 20 November 1973
• Docket Number: No. 73--159,73--159
• Citation: 33 Colo.App. 168,518 P.2d 954
• Parties: Robert R. DORSCH, Petitioner, v. INDUSTRIAL COMMISSION of the State of Colorado et al., Respondents. . II
• Court: Colorado Court of Appeals

Page 954

518 P.2d 954

33 Colo.App. 168

Robert R. DORSCH, Petitioner, v. INDUSTRIAL COMMISSION of the State of Colorado et al., Respondents.

No. 73--159.

Colorado Court of Appeals, Div. II.

Nov. 20, 1973.

Rehearing Denied Dec. 11, 1973.

Certiorari Granted Feb. 25, 1974.

J. F. Brauer, Arvada, for petitioner.

Richard G. Fisher, Jr., Fred B. Dudley, Denver, for respondents Lake Eldora Corp. and State Compensation Insurance Fund.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent Industrial Commission of the State of Colorado.

PIERCE, Judge.

This is a review of a final order of the Industrial Commission denying the petitioner's claim for benefits under the Colorado Workmen's Compensation Act. After holding two hearings, the referee issued an order finding that the claimant was not entitled to benefits because the injury sustained did not arise out of an accident 'in the course of his employment.' In a supplemental order, the referee set out in detail his findings of fact and again concluded that claimant was not entitled to benefits. The supplemental order was affirmed by the Industrial Commission, and claimant new seeks review of the final order of the Commission.

The facts in this case are basically undisputed. The claimant objects only to the conclusions drawn from those facts by the referee. The referee found that the claimant was employed as a bartender by the Lake Eldora Corporation at the Lake Eldora Ski Lodge; that, in addition to his wages of $2.25 per hour plus meals while working, claimant received a ski lift ticket pass for $5 for the season which was otherwise worth $110; that the employer used the season ski pass as an incentive to attract employees to its ski area; and that the season pass was a part of the remuneration for claimant's employment. The referee further found that the claimant was injured while skiing for his own recreation and while using the lift itcket pass furnished him by his employer. The referee concluded that:

'(claimant's skiing) did nothing in furtherance of the employer's business. That when the claimant skied there was no benefit derived by the employer. The dollar value of the ski pass was insignificant and the incident of higher morale is, by itself, inadequate to consider this free skiing as an incident of employment. That, therefore, the claimant was not within the scope and course of his employment at the time he was skiing.'

The claimant now argues that he was entitled to workmen's compensation benefits because the ski pass was a significant inducement leading to his employment; the ski pass was a significant part of the remuneration received for his work; the pass constituted and overall significant benefit to the employer; and the employment contract contemplated claimant's use of the employer's recreational premises on his free time.

The claimant has cited various authorities for the proposition that recreational or social activities may well fall within the course of employment. He relies on Denver v. Lee, 168 Colo. 208, 450 P.2d 352, in which a workmen's compensation award to a police officer who sustained a back injury while playing on a department basketball team was affirmed. In that case, the court noted that there are 'several variables which will determine by their presence or absence whether a particular recreational activity is within the scope of employment.' Those variables included:

'Whether the activity occurred during working hours; whether it was on or off the employer's premises; whether participation was required; whether the employer took the initiative in sponsoring or organizing the team . . .. In addition, other factors . . . which indicate whether the employer is sufficiently close to the activity to identify with it and make it incidental to employment.'

Among the 'other factors'...