This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On July 8, 1998, a contested case hearing (CCH) was held. With regard to the only issue before her, the hearing officer determined that respondent (claimant) was acting in the course and scope of her employment at the time of the motor vehicle accident (MVA) which resulted in her injuries, and had sustained a compensable injury.
Appellant (carrier) appealed, contending that the trip to (City 2, State), was not mandatory; was, in fact, a reward or voluntary social activity; and that the employer had not derived a direct or substantial benefit, other than improving employee health or morale, citing Mersch v. Zurich Insurance Co., 781 S.W.2d 447 (Tex. App.-Ft. Worth 1989, writ den’d). Carrier requests that we reverse the hearing officer’s decision and render a decision in its favor. Claimant responds, urging affirmance.
DECISION
Affirmed.
This case was decided with two other companion cases, (Ms. H, deceased) and (Ms. M), because all three individuals involved were in the same vehicle and in the same MVA. The issue in all three cases was whether that individual was in the course and scope of her employment at the time of the MVA.
All of the employees were managers or assistant managers for the employer property management company. (Ms. K) is the employer’s president and clearly the active top manager. Ms. K testified that, for the last year and one-half or so, the employer has had monthly managers’ luncheon meetings in (City 1) to discuss business and disseminate business information. At some time prior to February 20, 1998 (all dates are 1998) Ms. K decided that the February monthly meeting would be held in (City 2, State), which is about 150 miles from (City 1), and where Ms. K owned a large house. Ms. K and the involved employees all agreed that while Ms. K did not say the monthly meeting in (City 2, State) was “mandatory,” all of the managers, including the three employees involved in these cases, were expected to be present “unless they had a ‘reasonable’ excuse for not being able to make the trip.” Ms. K agreed that part of the trip was as a reward to the employee managers for the work they had done. Two managers were unable to make the trip because they were unable to obtain childcare for their children. It is undisputed that children and spouses were not invited and were not allowed on the trip since it was a reward for the employees, as well as a business trip. Ms. K testified that although she would not take disciplinary action against the two managers who did not attend, she “would not have looked highly on that [not attending the meeting].” The employees all gathered at Ms. K’s (City 1) home on Friday evening, February 20th, where Ms. K took a company van and one of the employee’s took her car. All the employees involved in these three cases were riding in the coworker’s car. Everyone arrived in (City 2, State) sometime between 6:00 and 7:00 p.m., and they went to a restaurant for dinner. Everyone paid for their own meal. After dinner, the employees were on their own and could go to the casinos or wherever they chose, at their own expense. All the employee managers stayed at Ms. K’s house the evening of February 20th, and had breakfast there the morning of _______. At about noon on the ____, everyone attended the monthly business luncheon meeting at a restaurant. Ms. K testified that she had some staffing changes that she discussed with the employees, as well as other business. The employer paid for the luncheon and everyone sat at one large table. After the luncheon meeting, the employee participants could stay in (City 2, State) and stay the night in Ms. K’s home, or they were free to return home to (City 1). Claimant, and three other participants, decided to return to (City 1) in the coworker’s car. About one-half hour after the meeting, while going home, the car was involved in an MVA, in which Ms. H was killed and the others injured.
Carrier, both at the CCH and on appeal, contended that the trip was not mandatory and was a social activity intended to reward the employees and, so, was not within the course and scope of employment. The hearing officer, in her discussion, and carrier, in its appeal, both cite Mersch, supra, as the controlling appellate court decision. In Mersch, the employee was injured at a company-sponsored picnic while playing softball. Mersch cited several Texas Workers’ Compensation cases and stated that injuries sustained by an employee while engaged in a recreational or social activity sponsored by the employer are not in the course and scope of employment, unless:
(1) participation in such activity is expressly or impliedly required by the employer; (2) or the employer derives some benefit from the activity, other than the health and morale of the employee; (3) or where the injury takes place at the place or immediate vicinity of employment while the employee is required to hold himself or herself in readiness for work, and activity takes place with the employer’s express or implied permission.
The hearing officer, in her discussion, correctly noted that the “Mersch test” is in the disjunctive, meaning that if any one of the situations is met then the injury would be compensable. The hearing officer further commented:
In this case, the employees believed they were required to attend, the employer derived some benefit from the activity since important information was shared at the business meeting on Saturday and the activity occurred with the express permission of the employer.
The hearing officer made appropriate findings of fact to include that the employees were required to attend monthly meetings, that the claimant believed that she was required to attend the meeting in (City 2, State) and that the claimant was furthering the interests of the employer by attending the meeting “to discuss staff changes within the company.” Carrier, in its appeal, emphasizes that the meeting was “not mandatory” and that the trip was a reward “for a job well done.” Carrier emphasizes the dinner the evening of (day before injury), the visit to the casino, all “paid for by the individual employees” and the voluntary social aspects as showing “there was no compelling business reason to hold a weekend luncheon” in (City 2, State). While an argument could be made either way, we have often held that the hearing officer, as the finder of fact, is the sole judge of the weight and credibility to be given to the evidence. Section 410.165(a). We note that Mersch does not require the activity to be “mandatory,” only that the activity “is expressly or impliedly required by the employer.” The hearing officer could, and apparently did, believe that the fact that Ms. K “did expect them to go” meant that the employer was impliedly requiring attendance. Because two employees did not attend because of lack of childcare does not mean that the employer was not impliedly requiring attendance. In any event, we cannot say that the hearing officer’s decision on this point is, as a matter of law, incorrect or is against the great weight and preponderance of the evidence.
The hearing officer made further findings that this case would also be compensable as a “special mission” under the standards enunciated in Evans v. Illinois Employers Insurance of Wausau, 790 S.W.2d 302 (Tex. 1990); however, since that point was not addressed, and no error alleged, by the carrier, we need not further comment on whether this is, or is not, a special mission.
Upon review of the record submitted, we find no reversible error and we will not disturb the hearing officer’s determinations unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not so find and, consequently, the decision and order of the hearing officer are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Alan C. Ernst – Appeals Judge