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Horseplay Injuries in the Workplace: Are They Covered Under Workers' Comp?
While driving on the Florida Turnpike to Miami recently, I was stuck in traffic in a construction zone and witnessed two members of the construction road crew playfully wrestling in the median area. The first thought that came to my mind was how there couldn’t be too many riskier environments for these guys to be horsing around in. The second thought was how the company’s workers’ comp policy would respond if one (or both) of the workers was injured during the “horseplay”.
Some might call workplace horseplay a form of bullying. Others might call it good clean fun that is all a part of a healthy workplace. Either way, workplace horseplay is nothing new.
The general rule used to be that injuries sustained during horseplay were not compensable under workers' compensation laws because horseplay involves conduct outside the scope of employment. Many courts, however, found exceptions to the general rule to allow compensation. For example, the horseplay was momentary and insignificant … or it was common at a particular workplace … or it was condoned or even practiced by management.
Whether injuries resulting from horseplay at work are compensable under workers' compensation laws depends on a number of factors. Many courts apply the so-called Larson test, named after the well-known treatise,Larson’s Workers’ Compensation Law. The Larson test involves an examination of four factors, any one of which might swing the outcome of a case:
(1) the extent and seriousness of the deviation;
(2) the completeness of the deviation, i.e., whether it was commingled with the performance of a duty or involved an abandonment of duty;
(3) the extent to which the practice of horseplay had become an accepted
part of the employment; and
(4) the extent to which the nature of the employment may be expected to include some horseplay.
An employee of a Panera Bread bakery in Colorado was injured when, attempting to kick at the air in the direction of a fellow employee, his leg slipped out from under him and he fell to the floor. Even though horseplay was not an accepted part of his employment, his injuries were found to be compensable because his actions did not amount to an extensive or serious deviation from his employment duties.
Even horseplay involving more extensive and serious deviations from normal work duties can be found compensable when other factors in the Larson test come into play. For example, horseplay may have become a pattern that was accepted in the workplace.
Nevertheless, some horseplay may be so far removed from any normally expected behavior that it cannot be deemed to have arisen in the course of employment.
In one case, jumping 70 feet from a conveyor belt into a cotton pile was an extreme form of horseplay that was found to be beyond the scope of employment. A recent Delaware case provides another example of an extreme form of horseplay that could fall outside the scope of employment—even at a workplace where horseplay was common and accepted. The claimant worked for a construction firm where horseplay and practical jokes were common. Three coworkers trapped him in a bathroom and wrapped him in duct tape from his ankles to his shoulders. He suffered back and knee injuries. The court ruled that some horseplay “may be so unreasonable and so unexpected that it is not within the co-employees’ course and scope of employment.” Also keep in mind that since work comp is state law, the only precidence that would come into play in Florida would be from Florida courts.
While a workplace policy against horseplay seems like a reasonable precaution, it provides no guarantee against workers' compensation liability for minor and momentary acts of horseplay.
By Kian Ostovar with Work Comp Specialists Agency with information provided from "Horseplay in The Workplace" by Charles Tesner Esq.