This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 7, 1999. With respect to the sole issue before him, the hearing officer determined that the claimed injury did not arise out of voluntary participation in an off-duty recreational activity not constituting part of the respondent’s (claimant) work-related duties; therefore, the appellant (self-insured) is not relieved of liability for compensation. The self-insured appeals, urging that the claimant was not directed or required to participate in the preparation of the party and that the claimant failed to prove by a preponderance of the evidence that her attendance was a reasonable expectancy of employment. The claimant replies that the hearing officer’s decision is supported by sufficient evidence and should be affirmed.
DECISION
Reversed and remanded.
The claimant, an administrative clerk in the technology services department, testified that on ____________, the department was having a retirement party for two of its employees at the administration building. The claimant’s supervisor, (Ms. P), testified that she was scheduled to help with the party, but could not because she had a deadline to meet. Ms. P informed another supervisor, (Ms. M), that she could not participate, but that the claimant would assist. The claimant testified that the first knowledge of her involvement with the party was when Ms. M asked her if she was ready to go to the store. The claimant testified that she then went to Ms. P and told her that she was going to go with Ms. M. She said that it appeared that arrangements had been made for her to help with the party, and she “took it as an order” that she should help with the party. Ms. P testified that she told the claimant it was okay for her to go and help. The claimant went to the store with Ms. M, then went to Ms. M’s house to pick up food trays. The claimant testified that as she was carrying a tray into the boardroom of the administration building, she slipped on a wet floor and fell, injuring her low back and knees.
The self-insured’s position was that the evidence established that the claimant was not in the course and scope of her employment but was performing a social, voluntary activity that was not in furtherance of her employer’s business. Ms. P testified that the claimant’s participation in the preparation for the retirement party was voluntary, that the claimant had the option to help, and that if she declined there would be no repercussions. According to Ms. P, the claimant was not directed to participate and it was not a requirement of the employer that the claimant participate.
A compensable injury is defined as an “injury that arises out of and in the course and scope of employment for which compensation is payable. . . .” Section 401.011(10). An insurance carrier is not liable for compensation if the injury “arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the employee’s work-related duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employment; . . . ” Section 406.032(1)(D). Under the 1989 Act, participation in an off-duty recreational, social, or athletic activity is a reasonable expectancy of the employment if the reasonable expectancy emulates from the employer, rather than from the employee’s own conscience. Texas Workers’ Compensation Commission Appeal No. 960515, decided April 26, 1996.
The hearing officer made findings that the claimant was injured while at work on ____________, and that the claimant’s participation in the school district’s retirement party preparation was not voluntary and was not off duty. The hearing officer states in the Statement of Evidence:
Of course, Claimant was not told that her participation was voluntary, or that this work would not be considered part of her duties. She understood that she was being told to help with preparations for this party, and she complied. Certainly she was paid for her time spent in participation. While the primary function of a school district is the education of students, the hiring and retention of employees is a key part of accomplishing that mission, and certainly that is recognized by the fact that a retirement function was held on school district property. Claimant was injured not while attending the party, but during her normal work hours in helping to set up the room.
The hearing officer, without reaching a determination of whether the activity was a reasonable expectancy of or was expressly or impliedly required by the employment, resolved that the activity was not voluntary and not off duty. After careful review of the record, we agree with the self-insured that there is no evidence to support the statement that the claimant was paid for the time spent in preparation of the party, that the party was held during normal work hours, or that the activity was not off duty. If the activity was not off duty, the carrier cannot be relieved of liability under Section 406.032(1)(D). We reverse the hearing officer’s decision that the claimed injury did not arise out of voluntary participation in an off-duty recreational activity not constituting part of the claimant’s work-related duties, as not being supported by the evidence, and remand for further consideration and development of the evidence on the issue of whether the claimant was involved in an off-duty activity at the time of the claimed injury.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s Division of Hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Dorian E. Ramirez – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Tommy W. Lueders – Appeals Judge