How to get paid when horseplay is a part of the history for a workers’ comp injury.

There is a news item out of the Business Insurance site discussing the "horseplay doctrine" in the context of a restaurant worker suffering a shoulder injury caused when he raised his arm for protection from ice being thrown by a co-employee. I actually disagree with the characterization that raising one's arm can cause this injury. I suspect the waiter or server's shoulder was injured from a wear and tear injury first caused by lifting heavy bus trays and the raising the arm simply put it over the edge of tearing completely or seriously. It should be noted the server did not win his case because of pre-existing shoulder conditions from previous shoulder dislocations.

Here is a quote from the article.

However, the Virginia Court of Appeals ruled in 2009 that even though Mr. Sims was an innocent victim of horseplay, there was no connection between his employment conditions and the ice attack. The ruling sided with the Virginia Workers' Compensation Commission, which had overturned the deputy commissioner's decision.

The writer does a good job of explaining the "actual risk test" and does cite the Iowa ruling having a distinguished fact-splitting analysis. Get ready for a major headache.

Another quote concerning this writers understanding of the actual risk test:

But in its ruling last week, Virginia's Supreme Court applied an "actual risk test," in which an injury falls within workers comp law "only if there is a causal connection between the employee's injury and the conditions under which the employer requires the work to be done," court records state.

The state high court also relied on a theory of recovery, which has found that joking actions of co-workers are a risk of employment because humans are playful and from time to time engage in pranks, which can be dangerous.

The Iowa Supreme Court case is Xenia Rural Water District and Emacasco Insurance Co vs Norma Vegors and involves a machine operator. The Iowa Supreme Court carved out an exception for those workers injured if they instigated or aggressively participated in the horseplay. I the case of Vegors the case was remamded back for additional findings.

The Supreme Court found that "a claimant cannot recover for injuries stemming from an employee's instigation or aggressive participation in horseplay that constitutes a substantial deviation from his employment."

Therefore, the high court said the claimant bears the burden of proving he did not substantially deviate from his employment by instigating or aggressively participating in the horseplay.

The Supreme Court remanded the case.

The ruling just adds one more uncertainty to the process but save the employers from having to foot the bill for work injuries when employees are involved in horseplay that goes beyond.... Hmmm, goes beyond what? Oh yeah, that's the problem with this decision the wording is vague enough that these cases will never get resolved. Welcome to the practice of law. This is actually a pretty good site for insurance law discussion. I posted the decision on my website. You can always go the Iowa Supreme Court decision as well.

'Horseplay doctrine' entitles worker to comp: Va. court
Business Insurance

In a contrary ruling last year, the Iowa Supreme Court ruled an injured worker must prove his injury was not a result of horseplay in order to receive ...
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