Thought Leadership

Ms. Testa-Carr worked as a customer service representative for Sallie Mae. On March 21, 2022, she was fell down some stairs and was injured while delivering Meals on Wheels to an apartment in Newark. This volunteer work was arranged via Sallie Mae’s Employee Volunteer Program (EVP). The injury occurred during work hours, and the claimant was paid PTO for the volunteer work pursuant to the EVP. The employer denied workers’ compensation benefits on the basis that the volunteer activity was not within the course and scope of her employment. Ms. Testa-Carr filed a petition with the Industrial Accident Board alleged a work injury.

The Board held an evidentiary hearing and determined that the claimant failed to meet her burden to prove she was within the course and scope of her employment. The Board determined that the correct legal standard was the analysis for non-sponsored recreational activities and reasoned that the claimant failed to satisfy any of the three factors established by the Larson’s treatise under a totality of the circumstances.

On appeal, the claimant contended that the Board incorrectly applied the second and third factors of the Larson’s test. Specifically, the claimant argued that: (1) Sallie Mae impliedly made the volunteer activity part of the services of an employee, thus, bringing it within the orbit or employment; and (2) Sallie Mae derived a substantial direct benefit from the EVP. The court agreed with the Board’s conclusions and rationales on both issues. The Board emphasized that volunteering was optional, employees were not treated better or worse based on their decision to volunteer, and the employee had complete discretion about what volunteer activity he or she wishes to perform. Moreover, while the employer derived some benefit from employees’ volunteerism, the claimant’s outing did not reach the level of “substantial direct benefit” required by the third Larson’s factor. Ms. Testa-Carr chose Meals on Wheels on her own, was not required or encouraged to wear Sallie Mae apparel or identification, was not required to communicate with the recipients of the meal, and she had performed this volunteer activity on her own in the past and conceded she often does not even see the recipients. The court found that the Board’s decision was supported by substantial evidence and affirmed. 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 2, February 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}