IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MORRIS JAMES LLP, )
)
Appellant, )
)
v ) C.A. No. N17A-08-005 FWW
)
)
WILLIAM WELLER, )
)
Appellee. )

Submitted: December 11, 2017
Decided: March 29, 2018

OPINION AND ORDER

On Appeal from the Industrial Accident Board:
REVERSED.

Scott R. Mondell, Esquire; Elissa A. Greenberg, Esquire; Elzufon Austin Tarlov &
Mondell, PA, 300 Delaware Avenue, Suite 1700, Wilmington, Delaware 19801;
Attorney for Appellant Morris J ames LLP.

Gary S. Nitsche, Esquire; William R. Stewart, Esquire; Weik, Nitsche &

Dougherty, 305 North Union Street, Second Floor, P.O. Box 2324, Wilmington,
Delaware 19899; Attorneys for Appellee William Weller.

WHARTGN, J.

I. INTRODUCTION

The Court revisits this case on appeal after remand. Morris James LLP
(“Morris James”) appeals the second decision of the Industrial Accident Board
(“Board”) dated August l, 2017. Morris J ames contends that the Board erred when
it found that Appellee William Weller’s (“Weller”) injury, which he sustained while
playing on an employee softball team, occurred within the course and scope of
employment It also argues that the Board erred when it allowed Weller to present
new evidence outside the scope of the remand proceeding This Court reversed the
Board’s initial decision and remanded the matter to the Board to apply the correct
legal standard to its factual findings and to take into account the appropriate
considerations when determining whether Morris James received a substantial,
direct benefit from having a softball team.

In this appeal, the Court must determine whether the Board’s decision is
supported by substantial evidence and free from legal error. Upon consideration of
the pleadings before the Court and the record below, the Court finds that the Board’s
decision is neither supported by substantial evidence, nor free from legal error.
Accordingly, the Board’s decision is REVERSED.

II. FACTUAL AND PROCEDURAL CONTEXTl

 

1 The Court incorporates the Factual and Procedural Context section from its
previous decision, Morris James LLP v. Weller, 2017 WL 1040713 (Del. Super.

2

On May 25, 2017, prior to the remand hearing, Morris J ames moved in limine
to limit the remand hearing to what it argued was the specific, problematic issue
addressed in this Court’s decision: whether Morris James derived a substantial
benefit from the softball team.2 According to Morris James, new evidence or witness
testimony should be restricted to that issue only.3 Weller responded that he was
entitled to introduce new evidence because the entire case was remanded and
application of the correct legal test required analysis of all factors.4 The Board
initially disagreed with Weller, finding that a party’s ability to introduce new
evidence at a remand hearing is limited to those issues identified as error or
problematic by the appellate court.5 The Board concluded that the specific issue on
remand was whether the Morris J ames derived a substantial benefit from the softball
team.6

The Board held the remand hearing on May 31, 2017.7 At the Start of the

proceedings Weller moved to re-argue the limiting order.8 Weller argued that the

 

Ct. Mar. 16, 2017), and supplements those facts with additional relevant facts from
the hearing on remand.

2 Appellant’s Opening Br., D.I. 7, Ex. D.

3 Id.

4 Id. at 21-22.

5 Appellant’s Opening Br., D.I. 7, Ex. E.

6 Ia'.

7 Appellant’s Opening Br., D.I. 7, Ex. G.

8 Id. at 4-6.

language of the Court required the Board to apply “the Dalton factors, not factor.”9
Therefore, new evidence and witnesses could be offered on all pertinent factors.
Morris James maintained its previous position that remand was limited to the
problematic issue identified by the Court.10 The Board reversed itself and allowed
Weller’s new evidence and witnesses, but noted that the substantial benefit factor
was the “key factor that the judge wanted [the Board] to look at” among all the
Dalton factors.11

Teresa Atwell (“Atwell”), an employee in Morris James’ Accounting
Department, testified at the remand hearing.12 She stated that she was injured twice
while playing softball for Morris James.13 In each instance she was told by Morris
J ames to submit her claim under workers’ compensation, and in both times her claim
was accepted.14 Atwell also testified that she felt pressured to play softball.15 In
order to field a team for a game each team needed to have three female players.16
As there were not many female players she felt obligated to play and, after agreeing

to play, was told she needed to be there on occasion.17

 

9Id. at 5-6.

10 Id. at 9.
11Id. at ll.

12 Id. at 51.

13 Id. at 53.

14 Id.

15 Ia'. at 54-55.
1610'.

17 Ia'.

Jamie Dawson (“Dawson”), a paralegal at Morris James, confirmed coverage
of Atwell’s injuries under workers’ compensation.18 She also testified to the
pressure she felt to play softball.19 Dawson stated that she would be “haggled” by
her supervisors at work if she did not participate,20 and that pressure to play came
from as high up as the Executive Director Herweg.2l The pressure to play was a
reason she no longer participated.22

Eric Monzo (“Monzo”), an equity partner at Morris J ames in Weller’s
department, testified at the remand hearing before the Board.23 Mr. Monzo stated
that employees were encouraged to play sof`tball.24 He further added that during job
interviews he inquired whether a candidate played softball.25 Monzo also testified
about the benefit to the Morris James. He believed that the softball games fostered
strong relationships within the legal community and were a beneficial form of social
engagement.26 However, Monzo did not believe Morris J ames benefitted

economically, through new clients or new business, from the softball games.27

 

18 Id. at 66.

19 Id. at 67-69.

20 Id. at 68-69.

21 Id. at 67.

22 Ia'. at 66.

23 Id. at 21.

24 Id. at 24-25, 27.
25 Id. at 49.

26 Id. at 37.

27 Id. at 43-45.

Sherry Pema (“Pema”), Morris James’ Executive Director, Controller, and
softball coach, testified that she regularly encouraged softball participation28 She
sent a firm-wide e-mail gauging interest at the beginning of each season,29 ensured
there was enough people to field a team for each game,30 and inquired whether job
candidates played softball.31 Pema also testified that the softball events benefitted
Morris J ames as a team building exercise, “it helps people get together” and “learn
about other people that they work with.”32 Other than increased morale, Pema did
not believe Morris James received any other benefit from the softball team.33
Additionally, Pema testified that Morris J ames allows non-employees to play on the
team, including other attorneys and vendors.34

On August l, 2017 , the Board issued a new decision concluding that Weller’s
injury occurred in the course and scope of his employment.35 The decision found
that Weller met his burden of proof by establishing the second and third factors of
the Dalton standard, which are:

(2) the employer, by expressly or impliedly requiring

participation, or by making the activity part of the services
of the employee, brings the activity within the orbit of

 

23 Id. at 80.

29 Id. at 81.

30 Id. at 83.

31 Ia'. at 99.

32 Id. at 91.

33 Id. at 9l.

34 Id. at 85-86, 94-95.

35 Appellant’S Opening Br., D.I. 7, Ex. F.

6

employment and (3) the employer derives substantial
direct benefit from the activity beyond the intangible value
of improvement in employee health and morale that is
common to all kinds of recreation and Social life.36
As to the second Dalton factor, the Board found that “there was sufficient evidence
to show there was pressure put on employees to play that by implication [softball]
was an employee related activity”37 The Board reasoned that: (l) pressure was put
on members of the team to play and for certain employees to join the team, (2) Morris
J ames asked job applicants whether they played softball, (3) Morris J ames told an
injured employee to submit a workers’ compensation claims for two prior softball
injuries and both claims were accepted, and (4) Morris James told Weller to submit
a workers’ compensation claim.38 By taking these actions, the Board concluded that
Morris J ames brought “participation in the softball team within the sphere of
employment related activity.”39
Regarding the third Dalton factor, the Board held that Morris J ames met the
third prong because it derived a substantial and direct benefit from the softball

team.40 In reaching its conclusion the Board relied on: (l) the testimony of Herweg,

Morris James’ Executive Director, that Morris J ames “realized a benefit in the form

 

36 State v. Dalton, 878 A.Zd 451, 456 (Del. 2005).
37 Appellant’s Opening Br., D.I. 7, EX. F. at ll.

38 Id.

39Ia'.

40 Id.

of increased productivity”; and (2) the fact that the Morris James allows non-
employees, such as vendors, to play on the team and “several vendors on the team

can provide a business benefit for the firm.”41

III. THE PARTIES CONTENTIONS

On appeal, Morris J ames argues that the Board’s decision should be reversed
for three reasons. First, Morris James argues that the Board erred by considering
new evidence on factual issues which were not appealed.42 According to Morris
James, the scope of issues to be addressed during a remanded hearing is limited to
the issues raised on appeal.43 In its first appeal Morris James challenged: (l)
whether the Board applied the proper legal standard;44 (2) whether a standard-use-
of-premises or “Hold Harmless” contract demonstrated a modicum of Morris James’
control over the recreational event;45 and (3) whether there were sufficient facts to
demonstrate Morris James derived a benefit in the form of increased employee
productivity from its employees’ participation in softball.46 Therefore, the scope of
the remand hearing should have been limited to applying the correct legal framework

to the previously litigated facts and only considering new evidence related to the

 

41 Id. at 12.

42 Appellant Opening Br., D.I. 7, at l4.
43 Id. at 15.

44 Id.

45 Id. at 16.

46 Id.

appealed issues (the “Hold Harmless” contract and whether there was any employer-
derived benefit.)47

Second, Morris James argues that the Board erred when it concluded that
Weller met his burden to show an employer-based benefit from the softball team.48
In reaching its conclusion the Board relied on Herweg’s prior testimony about
productivity and evidence of non-employee vendor participation According to
Morris James, the Board’s continued reliance on Herweg’s productivity testimony
contravened this Court’s previous admonition to disregard it and, further, such
evidence failed to demonstrate a direct and tangible benefit.49 Morris James also
contends that mere evidence of non-employee vendor participation, without more,
is insufficient to demonstrate any substantial, direct benefit to Morris James.3°

Third, the Board erred in concluding that Morris James took action to bring
Softball participation within the sphere of “employment related activity.” In
particular, the Board relied on: (l) the fact that Weller was told to submit a workers’
compensation claim, (2) prior softball injury claims by Morris James’ employees
were covered under workers’ compensation, and (3) pressure was put on members

of the team to play. Morris James argues that the Board erred in relying on prior

 

47 Id. at l7.

48 Id. at l7-26.
49 Ia'. at 18-24.
30 Id. at 24-26.

workers’ compensation coverage because prior coverage was due to its prior
insurance carrier’s errors and Morris J ames should not be bound by those mistakes.51
Morris James also argues that its instructions to report softball injuries were
statutorily obligated and therefore did not expand the scope of Morris James’
employees’ services.52 Lastly, Morris James contends that the Board’s reliance on
subjectively-felt pressure was insufficient to meet Dalton ’s second factor because
softball participation was optional and evidence of subjective pressure is
distinguishable from required participation.53

In response, Weller argues that the Board correctly considered new evidence
at the remand hearing.54 According to Weller the scope of the remand hearing relates
to the issues on appeal and remand: whether softball was a work-related activity at
the time of Weller’s injury and correct application of the Dalton factors.55 Weller
contends that the new testimony dealt with the second and third Dalton factors.56
Therefore, according to Weller, because the Dalton test and whether his injury was
work-related were the issues on remand, evidence_including new evidence-on

those issues was well within the scope of the remand hearing.57 Weller also asserts

 

51 Id. at 26-29.

52 Id.

55 Ia'. at 29-33.

54 Appellee’S Answering Br., D.I. 9, at 17-20.
55 Id. at 20.

56 Id. at 17-18.

57 Id.

10

that the Board’s decision was supported by substantial evidence and free from legal
error.58
IV. STANDARD OF REVIEW

The Board’s decision must be affirmed so long as it is supported by substantial
evidence and is free from legal error.59 Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion.60 While a
preponderance of evidence is not necessary, substantial evidence means “more than
a mere scintilla.”61 Questions of law are reviewed de n0v0,62 but because the Court
does not weigh evidence, determine questions of credibility, or make its own factual
findings,63 it must uphold the decision of the Board unless the Court finds that the
Board’s decision “exceeds the bounds of reason given the circumstances.”64

V. DISCUSSION

I. THE BOARD CORRECTLY CONSIDERED NEW EVIDENCE AT THE
REMAND HEARING.

 

58 Id. at 21-34

59 Conagm/Pilgrim ’s Pride, Inc. v. Green, 2008 WL 2429113, at *2 (Del. June 17,
2008).

66 Kelley v. Perdue Farms, 123 A.3d 150, 153 (Del. Super. 2015) (citing Person-
Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009)).

61 Breeding v. ContractorS-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).

62 Kelley, 123 A.3d at 152-53 (citing Vincent v. E. Shore Markets, 970 A.2d 160,
163 (Del. 2009)).

63 Bullock v. K-Mart Corp., 1995 WL 339025, at *2 (Del. Super. May 5, 1995)
(citing Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965)).

64 Bromwell v. Chrjysler LLC, 2010 WL 4513086, at *3 (Del. Super. Oct. 28, 2010)
(quoting Bolden v. Kraft Foods, 2005 WL 3526324, at *3 (Del. Dec. 21, 2005)).

ll

The Delaware Workers’ Compensation Statute states “[i]n case any cause
shall be remanded to the Board for a rehearing, the procedure and the rights of all
parties to such cause shall be the same as in the case of the original hearing before
the board.”65 Thus, it appears on remand of a workers’ compensation claim that all
evidence previously taken becomes part of the record on remand, and that the parties
may augment that record by offering additional evidence or legal argument.66 The
Court in State v. Steen found similarly, stating “the statutory scheme for conducting
a hearing on remand is unambiguous The Board is to decide the matter, after the
remand hearing, on the basis of the evidence from the prior hearing plus any new
evidence and legal arguments the parties decide to present.”67 The scope of evidence
properly presentable on remand was then narrowed by Johnson Control, Inc. v.
Haines.68 There the Superior Court held, “Steen does not require the Board to hear
the entire case anew on remand, but rather, allows the parties to revisit the issue
identified by this Court as problematic.”69 Therefore, the Court concludes that on
remand parties are entitled to introduce new evidence and new legal argument with

respect to the issue identified as “problematic.”

 

65 19 DCl. C. § 2350(b)

66 Mullens v. Worthy Const. Co., 2001 WL 1738868, at *4 (Del. Super. Ct. Oct. 15,
2001).

67 State v. Steen, 719 A.2d 930, 934 (Del. 1998).

68 Johnson Controls, Inc. v. Haines, 1999 WL 1568334 (Del. Super. Ct. Oct. 12,
1999).

69 Id. at 2 (emphasis added).

12

Here, the problematic issue was the application of the Dalton factors. This
Court previously stated “the Court remands this case to the Board for it to apply the
Dalton factors,” and “[o]n remand, the Board shall take these considerations into
account when it applies the Dalton factors.”70 The Court identified the problematic
issue. Therefore, the Board correctly considered new evidence on the Dalton
factors.

Morris J ames contends that Blue Hen Lines, Inc. v. Turbitt limits the scope of
the remand hearing to the issues on appeal.71 As a result, the Board was restricted
to: (l) applying the correct legal framework to the previously litigated facts; and (2)
considering new evidence related to the appealed facts.72 However, Morris James’s
reasoning and reliance on Turbitt is misplaced. The natural consequence of Morris
James’s formulation would be to require a prevailing party to appeal all of the issues
on which it was unsuccessful even though the overall outcome was favorable to it.
Moreover, the weight of case law suggests a broader scope of the hearing on remand.

To the extent there was any uncertainty in the scope of the hearing on remand, the

 

70 Morris James LLP v. Weller, 2017 WL 1040713 at *7 (Del. Super. Ct. Mar. 16,

2017).
71 Appellant’S Op. Br., D.I. 7, at 15. Blue Hen Lines, Inc. v. Turbitt, 787 A.2d 74

(Del. 2001) (if an appellate court orders a remand to an administrative agency,
there is no reason to reopen other issues that are not related to issues to be resolved
on remand and which were not raised on appeal.).

72 Appellant’s Opening Br., D.I. 7, at 17.

13

Court finds it was properly resolved by the Board in favor of allowing the Weller to
present additional evidence and legal argument73
II. THE BOARD’S CONLCUSION THAT MORRIS JAMES DERIVED A
SUBSTANTIAL BENEFIT FROM SOFTBALL IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE.

In determining whether an injury at a non-company sponsored recreational
event occurred within the course and scope of employment the standard set out by
the court in Dalton is disjunctive. A claimant need satisfy only one of the three
Dalton factors to find an activity within the course and scope of employment.74 The
third Dalton factor evaluates whether “the employer derives substantial direct
benefit from the activity beyond the intangible value of improvement in employee

health and morale that is common to all kinds of recreation and social life.”75

This Court noted, with particularity, that the weight of authority holds that
intangible benefits alone are not enough to bring a recreational event within the
course and scope of one’s employment.76 A “direct benefit” to an employer in a

social context generally includes “the benefit a business gains from having its

employees entertain clients, the participation of employees in business-related clubs

 

75 Mullens, 2001 WL 1738868, at *6.

74 State v. Dalton, 878 A.2d at 456 (Del. 2005).

75 Id. at 456.

76 Morris James V. Weller, at *6 (citations omitted).

14

and organizations or social activities . . . .”77 In the context of a recreational event,
such as a softball game, a “direct benefit” to an employer includes business
advertising, publicity, and monetary gain.78 lt is that kind of direct, substantial, and
tangible benefit that Dalton requires.

The Board concluded that Morris J ames derived a “substantial direct benefit”
from the softball team in the form of increased productivity.79 In its decision, the
Board cited Herweg’s testimony “that [Morris James] realized a benefit in the form
of increased productivity,” and that it relied “on his representation as an officer of
the firm.”80 Such enhanced productivity is a consequence of the increased morale,
camaraderie, and health of the employees resulting from participating on the softball
team and is the very type of benefit this Court admonished the Board to disregard.81
Enhanced morale and health are the exact benefits Dalton and the majority of courts
have deemed insufficient to demonstrate a substantial, direct benefit to an
employer.82 Dalton requires “substantial direct benefit from the activity beyond the

intangible value of improvement in employee health and morale.”83 Furtherrnore,

 

77 See Ostrowski v. Wasa Elec. Servs., Inc., 960 P.2d 162, 171 (Haw. Ct. App.
1988); Larson ’S at § 22.05[1].

78 See Ostrowski, 960 P.2d 162, 171-72; Larson ’s at § 22.05[2].

79 Appellant’s Opening Br., D.I. 7, Ex. F.

80 Id.

81 Appellant’s Opening Br., D.I. 7, Ex. A. at 72, 77-78.

82 State v. Dalton, 878 A.2d at 456 (citations omitted).

83 Id.

15

this form of enhanced productivity is unlike the business-specific benefit described
in Dalton. Morris J ames is a law firm; its goal is to bring in legal business. Morris
James derives no business benefit by having Weller participate in softball. Morris
J ames does not advertise its legal services at games, its clientele does not attend or
participate at games, and softball has no beneficial monetary impact on the firm.
There are other problems with the Board’s reliance on this snippet of

Herweg’s testimony. The first is that it ignores its context. That context is:

MR. GROUNDLAND: Mr. Weller [sic], do you believe

that enhancing morale, enhancing camaraderie, enhancing

good will, all those three things combined, would enhance

ultimate productivity for the firm?

THE WITNESS: Yes.

MR. GROUNDLAND: Would it enhance productivity?

THE WITNESS: lt would. I mean that’s the goal, that’s

the hope of it. It’s the attitude that I’ve tried to foster since

I’ve been there.84
When viewed in its proper context, Mr. Herweg’s testimony was clearly referring to
those intangible benefits that improved morale, camaraderie and good will provide,
in other words, the very considerations the Court cautioned the Board against taking

into account. The second problem is that the Board failed to cite any evidence that

this productivity benefit is “substantial.” At best, it is aspirational, as evidenced by

 

84Appellant’s Opening. Br. D.I. 7, Ex. C at 77:25-78:9.
16

Mr. Herweg’s qualifying comments that enhanced productivity was his “goal” or
“the hope of it.” There is no evidence that his “goal” or “hope” ever was realized in
fact. The final problem is that the Board ignored Mr. Herweg’s more extensive
testimony on the actual considerations the Board was to take into account regarding
productivity. That testimony was:

Q. What benefit does Morris James derive from
supporting these games?

A. l think it’s just morale, camaraderie, there’s some
exercise, promote health. But we get So many people that
aren’t playing that just go because it is a fun event to be at.

Q. And when you refer to employee health, does that
include mental health?

A. Mental health, physical health, get out of the office,
clear your brain, don’t worry about the case tomorrow for

two hours, and just have some fun, you can relax a bit.

Q. ls there any other benefit the firm derives from these
games?

A. l mean, not that l’m aware of.

Q. Has the firm ever used the softball games as a means
by which to solicit business?

A. No.

Q. Do any of the firm’s clients or prospective clients
participate?

A. Not that l’m aware of. l mean, there could be

somebody playing on one of the teams, but l -the teams
are either law firms or court/judicial groups.

17

Q. Does the firm derive any direct business benefit by
putting its name on the uniforms?

A. No.

Q. And what is the purpose of that?

A. To identify us. Every team has shirts, every team

likes to have their name on their shirt. lt identifies which

team you’re on.85
Thus, the only relevant testimony bearing on whether Morris James received a
Substantial, direct benefit by virtue of its employees playing on a softball team,
consistent with Dalton, establishes that it did not.

The Board also “believes that having several vendors on the team can
provide a business benefit for the firm, for example as in cost savings for vendor
services.”86 The Board’S conclusion is entirely conjecture as the Board failed to
identify any actual benefits Morris J ames received from any vendors.87 There is no
evidence in the record that of that the vendors on the team provided any business
benefit to Morris James, including any of the supposed cost savings the Board
speculated it might receive. Conjecture is not substantial evidence. lt does not

provide even a mere scintilla of evidence to support the conclusion, nor would a

reasonable mind accept it as adequate. Accordingly, the Board’s conclusion that

 

85Id. at 72:1-73:5.
86 Appellant’s Opening. Br., D.l. 7, Ex. F. at 12.
87 Id.

18

Morris J ames derived a substantial, direct benefit from softball participation is not
supported by substantial evidence.

III. THE BOARD COMMITTED LEGAL ERROR WHEN IT MISAPPLIED
THE SECOND DALTON FACTOR.

Because the Dalton standard is disjunctive, Weller may prevail upon satisfaction
of the second factor only. The second Dalton factor requires substantial evidence
that “the employer, by expressly or impliedly requiring participation, or by making
the activity part of the services of the employee, brings the activity within the orbit
of the employment.”88 ln essence, an action will be “within the course or scope of
employment” when an employer takes action, either expressly or implicitly, that
makes participation in an activity a required part of the employee’s job.

The Board concluded that Morris James took action that brought softball
participation “within the sphere of an employment related activity.”89 The Board
misconstrues the applicable Dalton factor and, in effect, makes up a new factor.
“[E]mployment related activity” is not the correct factor and is not congruent with

the correct factor - “expressly or impliedly requiring participation” or “making the

 

88 Appellant’s Opening Br., D.I. 7, Ex. F. at ll.

89 Appellant’s Opening Br., D.l. 7, Ex. F. at 11. The Board wrote, “First the Board
finds that there was sufficient evidence presented to show that there was pressure
put on employees to play that by implication it was an employment related activity;
and (2) Thus there was clearly some actions taken by Employer to bring
participation in the softball team within the sphere of an employment related
activity.”

19

activity part of the services of the employee” so as to bring “the activity within the
orbit of the employment.” An “employment related activity" may be many things.
lt may be optional or discretionary. “Employment related activities” may include
the social and recreational aspects of employment In the Dalton context, it is a
meaningless term. The Board cited as evidence supporting its conclusion that
softball was “employment related” the “pressure put on members of the team to play
and for new employees, in particular female employees, to join the team” and the
fact that Morris James told injured employees to submit workers compensation
claims (one of whom did so successfully.)90 But, this evidence proves nothing,
because absent this evidence, softball would still be “employment related.” Simply
by virtue of the fact that the team represented Morris J ames and was predominately
composed of Morris J ames employees would make softball “employment related.”
The factor adopted by the Board is simply too elastic to comport with Dalton, and is
legal error. Further, as a result of its failure to apply the correct Dalton factor, the
Board never actually made a finding that Morris James expressly or impliedly
required participation or, made softball part of Weller’s services as an employee, so
as to bring softball within the orbit of his employment

IV. THERE WAS NOT SUBSTANTIAL EVIDENCE TO SUPPORT A

CONCLUSION THAT MORRIS JAMES TOOK ACTION TO BRING
SOFTBALL WITHIN THE ORBIT OF EMPLOYMENT.

 

901d.
20

Here, the Board concluded that softball participation was an “employment
related” activity for two reasons. First, pressure was put on employees to play, and
second, Morris James told Weller and one player who was injured previously to
submit workers’ compensation claims. In the earlier case the employee received
benefits. Here, there is no evidence that participation was a pre-requisite or required
activity of employment Rather, participation was a matter of personal choice.91
Current team members inquired and extended invitations to potential participants.92
lnvitees could accept or decline. Furthermore, any objective pressure came from
team members in their individual capacities in an effort to encourage their teammates
to keep the commitment they made to play for the team, The evidence illustrates
independent actions by employees not attributable to Morris J ames as employer.

In reaching its decision, the Board focused on female team members’
subjectively-felt pressure.93 The subjective feelings of employees, however, are not
what Dalton addresses. Dalton addresses the actions of the employer to bring the
activity within orbit of employment Otherwise, it would be the employee, not the
employer who defines the orbit of employment The Court also notes the lack of
evidence regarding Weller himself. The Board failed to even mention whether the

Weller, the subject of the litigation, was exposed to Such pressure. Based upon the

 

91 Appellant’s Opening Br., D.I. 7, Ex. G. at 59, 72, 85.
92 Id. at 35, 41-42, 46-48, 54, 81.
93 Appellant’s Opening Br., D.l. 7, Ex. F. at 12.

21

evidence, or lack thereof, pressure to participate does not demonstrate that softball
was a required activity within the orbit of employment

The Board also concluded that softball participation was an “employment
related” activity based upon the coverage of prior workers’ compensation claims.
This conclusion is curious. Morris J ames was required to report the injuries pursuant

t.94 Morris

to 19 Del. C. § 2362(a), which has a mandatory reporting requiremen
James’s simply followed Section 2362(a)’s mandatory requirements Weller was
told to submit his injury claim.95 The firm’s insurance carrier determined whether
to accept or deny coverage.96 Because Morris James simply followed its mandatory
reporting requirement its actions cannot be construed as an affirmative action
bringing the activity within the orbit of employment Additionally, there was
unrebutted testimony that Morris James’ prior workers’ compensation carrier
mistakenly covered the previous softball injuries.97 The fact that a previous

insurance carrier mistakenly paid another employee’s workers compensation claims

provides no support for, and in fact is irrelevant to, a conclusion that Morris J ames

 

94 19 Del. C. § 2362(a) states that: An employer or its insurance carrier Shall within
15 days after receipt of knowledge of a work-related injury notify the Department
and the claimant in writing of: the date the notice of the claimant’s alleged
industrial accident was received; whether the claim is accepted or denied; if
denied, the reason for the denial; or if it cannot accept or deny the claim, the
reasons therefor and approximately when a determination will be made.

95 Appellant’s Opening Br., D.I. 7, Ex. A. at 40.

%ld.

97Ia'. at 119.

22

brought softball into the orbit of Weller’s employment lt would be a curious result
indeed if the prior mistakes of a third party, no longer involved in any way with any
party here, were to define for Morris J ames the orbit of Weller’s employment The
Court finds that there is not substantial evidence that Morris J ames took action to
bring softball participation within the orbit of employment
VI. CONCLUSION

The Court finds that there is not substantial evidence to support the Board’s

decision, nor is that decision free from legal error. Therefore, the decision of the

Board is hereby REVERSED.98

IT IS SO ORDERED.

')
/…/V

Ferr"is W. Wh 1't0111, Judge

/

 

98 The matter is not remanded to the Board for a third hearing. After two full
hearings, the Court believes that the parties have had ample opportunities to
develop the facts, and that those facts are simply inadequate to support a finding of
compensability. ln reaching this conclusion, the Court has accepted all of the
factual findings of the Board, e.g., that certain employees felt pressured to play
softball and that an employee was compensated previously under workers’
compensation The Court does not accept, however, the manner in which the
Board applied those facts to the Dalton factors in reaching its decision,

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