Injury Leave Possible After Off-Duty Recreation Accident

On May 27, 2014, arbitrator Tammy Brynie issued an important recreation injury leave award in favor of the Boston Police Patrolmen’s Association. The Boston police officer was seriously injured while participating in the 2012 Boston Police Department Fitness Challenge. (Read the full decision of Arbitrator Brynie HERE.) The BPPA case was presented and argued by Sandulli Grace Attorney Ken Grace.

As background to the case, the Boston Police Department had been increasing its emphasis on improved health and wellness for all officers since 2009. To this end, the Department sponsored an annual one-day Fitness Challenge for which officers were encouraged to train and compete in various physical fitness events. However, the annual challenge was considered a volunteer off-duty activity and no one was required to participate. At first glance, then, one might expect that an officer injured while participating in the Challenge would not be protected by M.G.L. chapter 41, section 111F ( the injury leave law applicable to Massachusetts police officers and firefighters). The BPPA thought otherwise, and ultimately Arbitrator Brynie agreed with the union.

The question in injury cases such as this revolves around a determination of whether the activity causing the injury “arises out of and in the course of employment.” In making that determination, Massachusetts courts and arbitrators look at “the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects.” Under certain circumstances, an employee can be entitled to injury leave for injuries sustained outside regular working hours, even if at the time of injury, the employee is engaged in something only incidental to his/her employment.

For injuries involving employee recreation activities, the Massachusetts Supreme Judicial Court has developed more specific criteria to determine whether the injury “arises out of and in the course of employment”. Those criteria involve such factors as the customary nature of the recreation activity; the employer’s encouragement, subsidization, management and direction of the activity; the pressure upon the employee to attend and participate; and whether the employer receives a benefit from the employee’s participation in the activity.

Here, the Grievant was injured during one of the events at the 2012 Boston Police Department Fitness Challenge. Arbitrator Brynie found there were “sufficient links with the Department, its goals and its mission to consider participation in the Fitness Challenge as an aspect of the performance of the Grievant’s duty, for Section 111F purposes.” Those links included the annual nature of the event from 2009 to 2012; the organizing, planning and direction of the Fitness Challenge by the Department and its personnel; and the benefits resulting from the event including such intangibles as positive publicity (featured within an episode of the CNN television show, “Boston’s Finest”), promotion of the Department’s emphasis on health and well-being, better morale, and enhanced team building. In the Grievant’s situation in particular, the Arbitrator also found that he received substantial pressure to participate in the event.

Upon reflection, there is a certain irony in this case that warrants comment. The Boston Police Department invested considerable resources and personnel since 2009 to promote the health and well-being of its officers, and a key component of that effort was the BPD’s annual Fitness Challenge. Consequently, the number of participants grew each year as more and more officers embraced the overall goal of being better able to physically perform their jobs.  Then, when the Grievant was injured during the 2012 Challenge and the Department denied him injury leave coverage, Boston police officers took notice and participation in the Department’s health and wellness program decreased substantially. For example, a Fitness Challenge was scheduled for 2013, but it had to be cancelled for lack of sufficient registration. In hindsight, the Department’s long term goal of helping officers to become more fit would have been better accomplished if the injury leave claim in this case had been covered under Section 111F from the outset rather than through a grievance.

Now it is clear that officers are entitled to injury leave coverage if they are hurt during a future Fitness Challenge, so we will see if the Boston Police Department really is committed to the future health and well-being of its officers. Going forward, that is the real Challenge from the outcome of this grievance arbitration victory.




Cities and Towns Cheating on Health Insurance Contributions to Self Funded Plans

When cities and towns use self-funded health insurance plans, they have been able to cheat on their required contributions.  We have already found a number of cases where municipalities have failed to make their required contributions, thereby forcing employees to pay a greater share then they had agreed to.

This cheating is possible because of the way premiums are established for self-funded plans.  In such plans the premiums are set by estimating a number which will cover the projected cost of claims and expenses.  The premium payments must also maintain a cushion in the fund sufficient to cover regular variation in claims plus enough to cover claims which will come in after the end of a plan period.  We have found that when there is such a cushion in the fund, employers can be tempted to skip their payments and allow claims to be paid from the cushion and from employee contributions.

To prevent this cheating, union representatives acting under their collective bargaining agreement or working through a Public Employee Committee, where the PEC has a health insurance agreement, must carefully monitor the financial records of the insurance plan.  They should insist on monthly records to be presented quarterly for review.  The records must include the following:

  1. The monthly claims paid.
  2. The monthly expenses of the plan including the fee paid to the plan administrator and the fees for consultants, actuaries, and accountants.
  3. The monthly revenue, showing both the revenue from employee contributions and from employer contributions and income from any other source, like interest on funds.
  4. The monthly fund balance.

Looking at this data the unions should be able to confirm that the total contribution rate is appropriate to cover the claims and expenses of the plan and that the employer is paying its agreed upon share.  Finally, there should be an annual audit report on the plan confirming that the monthly data has been correct.