Delaware Superior Court affirms an Industrial Accident Board decision that a claimant injured while performing an employer-related volunteer activity was not within the course and scope of employment.

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. 

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