is a five member of the caterpillar team talented and skilled manager in this case involved a terrible tragedy tragedy that is not the issues that were pressing today however  they'll be four main issues or arguments that i'd like to discuss today the first is that the current county circuit court orders of august three in august twenty three two thousand tanner final on field orders for purposes of mr mine sells emitted a business expense tab to that caterpillar pay for the luncheon he was submitted as a business expense and described the luncheon as quote unquote there was no testimony that anybody was ordered her sign was there any evidence of any company policy that impotence that i don't believe there is any evidence presented either way on that issue as this quarter think no is the arbitrator ruled in response favor two separate independent issues section eleven applied and secondly motor vehicle accident cannot rise out of the scenes employment commission adopted the arbitrators decision in its entirety the circuit court reversed issue two orders first order august three two thousand and ten reversed but did not enter an award and then  with regard to standard of review as it relates solely the issue of accident or the arising out of issue i should cited in my brief in the atlantic and pacific tea company that essentially says that this issue that's that is the stand review of the many cases that were cited in athletes brief i could i did not see one case where they suggested that cases involving motor vehicle accidents where the issue is accident arising out of that the standard of review was manifest which to me was to noble review with regard to section eleven and i'm talking about the standard review as it relates to section eleven i believe that there's two general issues that are the focus  one wasn't voluntary when i say voluntary i suppose to be assigned even though it's up there separate language assigned and ordered within that issue and secondly whether this is quote a recreational program close quote i think there's patients that are right on point that i've cited my brief the picket case address specifically the bond hearing this if you and the picket case reviewed that case from a manifest weight standard with regard to the recreational program all that he was ordered her sign of this we had three different witnesses who testified exactly the opposite the argument that the apple lead makes in this case suggests that we should address sort of a t of rationale it's been discarded in numerous cases including the fisher case there was a different standard applied now i suggest it's a very strict interpretation was that a seat order assigned to attend not a lot of guidance on this other than as far as how do you interpret the words recreational program both parties and submitted case law to suggest in these type of circumstances where there's no definition we should we can look to the webster's dictionary just for the court's information this is a book that i pulled off my shelf i did not slacken pick and i use the book consistently for all all the definitions that i  cited in my brief recreation is cited by webster's two college dictionary as follows quote refreshment of one's minor body after work through an amusing or stimulating activity synonyms recreation diversion entertainment i also refreshment is mentioned in the recreation definition so that i went on to cite the definition of refreshment from that same dictionary for an act of refreshing or state of being refresh something is food or drink that refreshes assortment of light fruits a light snack or meal so inherent within the definition of the word recreation affording the websters is refreshment this was a luncheon that i'm going to where they're going to eat the suggest that falls squarely within the definition of refreshment which is absolutely parent and the definition the word recreation according to webster's junior college dictionary letic events parties and picnics do not arise out of the course employment and so on so party is simply listed parties defined as quote a social gathering especially for pleasure amusement a birthday party a group of gather to participate in an activity also inherent also cited as a sentiment of recreation is a word entertainment if we quote that's the very language that mr markey used when he described the lunch in this case now i'd like to address the general issue of did the motor vehicle accident arise out of that scene some point i believe there's two groups or two issues that i would ask the court to look at first whether this was an off premises function and go through that type analysis and secondly whether motor vehicle accident in and of itself creates an increased risk once it's found it employs in the course of their employment first addressing the off premises luncheon issues i cited  club lynch states that the issue when we're looking at this is the guiding principle in turning whether employees injuries compensable for off promised premises activities such as is whether the employee can be deemed to have waived authority over the employee during the interval and so for example in schwartz schwartz it's like this case in that there is no issue that the employers in the course of them point schwartz was the case where the retail manager went with his fiance to a restaurant not in his building ate some apparently bad food that was poisoned and then shortly thereafter died and in the schwartz case the court suggested there must be some causal relationship between the employment and the injury and the cause of nature must be peculiar to the work and not common to the him to the neighborhood club it's a similar case of a teacher that was our lunch break in selter in this lunch hour and we're talking about an employee ask an employee that has i think i might be roughly fifty three people reporting this chain of command and we had mr sibley testify specifically on the relevant my suggestion is it is a program that i believe five i understand your question he's suggesting it's not appropriate and i would call your attention to the  brief and he uses a definition of the word program from his webster's dictionary and focuses on the following language takes place at a community center camp or that morning and said this is david's last day you might want to go by and say say something to a but my month cell said we should go to lunch the first and only mention of the lunch know his origin for the us was in response to the other man saying hey david are you the guy you got a return that this is these last day interesting late when we tried th these comments about what a great recruit or he has been as part of what they paid him for that's part of what they promoted and he knows that when you get people to do that which they didn't think they were going to you know only pay him cash but you give him strokes and that make a difference whose fault is that arises out of one yet that may be true if you listen that he's traveling in the course of work but the question becomes what work related activities are function was he performing at the time of the exit i agree i'm just writing a eleven takes him back out again and three different places she says we've cited those oh so as i look at it section eleven is the only issue and to answer mccullough that's a question of while because it is a matter of statutory interpretation what does it mean what does the phrase voluntary recreational programs mean because we thing some discussion about it was put down as entertainment every meal expense it's entertainment look at our exhibit eleven which is a history of like cells expenses for the hardware every time these guys buy a male to make a difference if he sells or with twenty people that's his favorite computer says just like it says business travel for mileage says entertainment for meals and that may be morts then they go to the cat cafeteria for buffet lunch can understands the value of food in relationship with stroke and we all do too and nobody he's winning fifty nine engineers all these other cases involving fire and then are people going to the machinists going to the company picnic and so forth there will interview sions to their employers ha employee who's out away from his home base and therefore he's sort of on call twenty four hours a day i think the only thing the traveling employee fits here is his back or comment about arising out of because he was that's that's my position on these facts it should be compensable every single time that's right because that was a sole purpose of this one was to thank me for a job well done and to increase the chances that he might come back again should they need him which is you remember he testified arbitration and i said this contributed to you likely to hear coming back and said well i'm back working for him again so i when they come to getting to go to lunch he still completing another interview you know the first time one typed in he said i'm not quite done go ahead i'll join you there this is a guy that's you know the social butterfly and can't gather and shared food they're expanding it beyond the stand and the statutory structure section eleven is contrary to the common law and rules of statutory construction  the statute is going to carve something of the common law must do so expressively and you must construe the exception marilyn and the commission didn't construe it barely reached way out there to make this day a party within the building it's not a program you know the program the other three hours before the program on the strange of a couple of words it's a program and it's not a party two witnesses testified and were asked about you have lunch in the past we talk about these are engineers and talk shop talk about engines and talk about tractors and talk about design and were specifically asked was this one of those type of lunches and the answer was no this was a lunch to thank mr essay and if this is not a social gathering the falls under section eleven if this is a business lunch everyone should caterpillar it's a business was rejected by the courts and secondly every manager of caterpillar has some expectation that they're going to keep their employees and it's there's even records in the evidence of in the p t piece of employment scores should go to lunch but that becomes a business luncheon the example of talking about there is no shop talk about this there was no business purpose other than he wanted to say thank you to employ every expense that's ever been submitted caterpillars entertainment i don't know that to be true at all many of the cases cited and i cited there's about sixteen cases that were mostly string showed there in the course of well if you will but if these are traveling employee cases this court is very familiar with the standard there which is reasonable and foreseeable there is never been any searching by mr walker or anybody else that he was a traveling employ while the court court the only supreme court in court certainly found different they found that you need to look at both they went through an analysis where they said even if you find that this this is the teacher that was in an auto accident going to school and they found that she was not in the course from point a chain knows distinguishable from this case but they said even if you find that there's still got to be more and the and the cases that he cited talks about where the courts go into detail about some of the increased risk of the employees over exposed to for example the benjamin sanborn case which is a case where the employee was directed to go with her employer and they got an accident because slipping on ice simply on a highway in the course employment is not enough and the library of course establishes three additional factors that have to be looked at in determining whether the employee was in the course of in conclusion the and one final issue on the the issue of whether whether should be addressed from a man if this way standard so i suggest that the court would have to make several findings before we reverse the commission in its entirety and suggesting that this was a completely not compensable pace as this court it while familiar with the court would have to find that the opposite result is clearly apparent under duran or that there was some evidence or the issue to another way to look at it was are some evidence and the record to support the commission's decision