Jones v. Multi-Color Corp. , 108 Ohio App. 3d 388 ( 1995 )

I commend the majority for its attempt to craft a result which provides for the deceased's widow and family, but I cannot accept its analysis. Therefore, I must respectfully dissent.

R.C. 4123.01(C)(3) provides that if an employee signs a recreational waiver, then any injury experienced by that employee as a result of his or her voluntary participation in an employer-sponsored recreation or fitness activity is not an injury covered by the Workers' Compensation Act. Without a compensable injury, it follows that there can be no basis for paying workers' compensation benefits to either the employee or the employee's dependents.

The majority, however, concludes that it cannot "allow this interpretation" because the common law of torts would then apply to any injury suffered by the employee. According to the majority, such a result would be "completely at odds with the entire workers' compensation scheme." The only reason offered by the majority to support this statement is the general principle of exclusivity which holds that workers' compensation is in lieu of all other rights to damages or benefits for a coveredinjury. It is a complete non sequitur, however, to suggest that the exclusivity principle prohibits an employer from being sued under the common law for a noncovered injury. This is particularly true where the employer, pursuant to legislative authority, has voluntarily removed the injury from the workers' compensation scheme by having the employee sign a waiver.

Phillip J. Fulton, in his treatise on Ohio's workers' compensation law, acknowledges that one possible effect of a recreational-release waiver is to "expose the employer to potential liability in a civil action for negligence since the injury no longer falls within the exclusivity protection of workers' compensation legislation." Fulton, Ohio Workers' Compensation Law (1991) 155, Section 7.11. The author of the law review article cited by the majority, Wambaugh, Comment, Recreational Injuries: Ohio Employers' Dilemma Resolved? (1989), 16 N.Ky. L.Rev. 593, 601, arrives at the same conclusion, noting that the compromise effect of the recreational waiver is to place the employer back "within the purview of negligence concepts rather than under no-fault workers' compensation." Significantly, neither author finds this result antithetical to the workers' compensation scheme.

I grant that the workers' compensation statutes "shall be liberally construed in favor of employees and the dependents of deceased employees." R.C. 4123.95. It is well settled, however, that the principle of liberal construction cannot be used to provide compensation for an injury falling outside the system.Georgejakakis v. Wheeling Steel Corp. (1949), 151 Ohio St. 458,461-462, 39 O.O. 276, 277-278, 86 N.E.2d 594, 596.

I also consider misplaced the majority's heavy reliance on analogies to insurance waivers and releases in private contracts of insurance to judge the sufficiency of the waiver in this case. Such analogies are inappropriate since the workers' compensation system is a statutory compensation scheme and is "neither charity, nor pension, nor indemnity, nor insurance, nor wages" although containing certain elements common to all. (Emphasis added.) Austin Co. v. Brown (1929), 121 Ohio St. 271,277, 167 N.E. 874, 876.

As a practical matter, the majority's holding that Jones "cannot, in law, waive his dependents' death benefits" by signing a recreational waiver will most likely effectively eliminate its use. The Act makes no express provision for a recreational waiver signed by dependents. Absent such a provision, employers will presumably stop employing recreational waivers, and sponsoring the activities they involve, since they offer no protection from dependents' benefits. Even if it is assumed that such a provision could be found for dependents to sign on to such a waiver, this would require the employee to, in effect, get permission from all of his or her dependents,including minor children, before participating in a company picnic for which the employer requires an waiver. In fact, under the majority's holding, the dissenting minor children, or children too young to make an intelligent decision, would arguably be entitled to the appointment of a guardian or next friend. The result is Orwellian.

The canons of construction enlisted by the majority to ignore the plain meaning of R.C. 4123.01(C)(3) are simply inapplicable here. The statute is neither ambiguous nor shaded by nuance. It provides clearly that a waiver, once signed by Jones, removes the injury incurred at a recreational activity from the definition of workplace injuries covered by the Act. While conceding to the majority that a dependent's right to death benefits is an independent right derived from statute, I note that it is also a right — as the majority acknowledges but then ignores — which depends entirely for its existence upon the employee suffering a compensable injury. According to statute, once Jones signed the waiver in this case, his subsequent injury at the recreational activity of his employer was unequivocally not compensable.

As noted by Wambaugh in his article, recreational waivers are the legislature's attempt to restore "equilibrium to the compensable status of injuries sustained by employees during employer-sponsored recreation in Ohio." Wambaugh, supra, at 602. The majority's holding, I believe, disrupts that equilibrium and sends the whole process reeling. I would, therefore, overrule both assignments of error in this case and affirm the judgment of the trial court.