May 25, 2020

Horseplay During Lull in Workday Found Compensable

The Supreme Court of South Dakota recently found a case involving an employee who was injured while engaging in “horseplay” with a coworker, while at work, to be a compensable. Petrik v. JJ Concrete, Inc., 2015 S.D. 39 (June 3, 2015), involved concrete laborers who had idle time during their work day while they waited for concrete trucks to arrive or for other work to be completed before they could continue their own. Petrik testified at trial that during these lulls in work, he and others often played jokes and tricks on each other.

On this particular day, Petrik and others had completed their work and were waiting for a concrete truck to arrive. It was a hot day and some of them sat in one of the employer’s air-conditioned trucks. Petrik wanted to sit in the truck to cool off, so he told a co-worker that one of the workers on the far side of the work site needed to talk to him. When the co-worker left the truck, Petrik took his seat inside the cool cabin. After a while, he got out and saw his co-worker coming back. Petrik started to run and the co-worker pursued him. During the short chase, Petrik attempted to jump a five-foot wide trench and landed awkwardly and broke his ankle.

Petrik filed a workers’ compensation claim, but this was promptly denied by his employer and insurer, on the basis that his injury did not arise out of and in the course of his employment.  Additionally, his employer prohibited horseplay by employees during work hours. The Department of Labor found that Petrik’s injury arose out of the course of employment, but did not occur in the course of that employment. The circuit court affirmed.

The Supreme Court of South Dakota focused their analysis on whether or not the horseplay was a serious deviation from employment, and whether it was commingled with the performance of duty or involved an abandonment of duty. The Court acknowledged that running on the job site was against the employer’s safety rules and Petrik testified he knew it was such a violation. However, the Court indicated that Petrik’s impulsive running and jumping during a definite lull in work was not such a deviation as to be substantial.

In New Jersey, the Workers’ Compensation statute doesn’t address the issue of compensability of an injury to an employee engaging in horseplay. NJSA 34:15-7.1 states that “an accident to an employee causing his injury or death, suffered while engaged in his employment but resulting from horseplay or skylarking on the part of a fellow employee, not instigated or taken part in by the employee who suffers the accident, shall be construed to have arisen out of and in the course of the employment of such employee and shall be compensable under the act.”

The issue of whether an instigator of horseplay is covered for workers’ compensation purposes was addressed by the Appellate Division in Wasik v. Borough of Bergenfield, No A-794-02T3 (App. Div. December 1, 2003). In Wasik, the petitioner, a sanitation worker, was injured after he made insulting comments and pelvic thrusts towards a co-worker while the two were completing their duties. The co-worker responded to this provocation by punching the petitioner in the mouth.

The Appellate Division indicated that N.J.S.A. 34:15-7.1 does not bar an instigator from coverage for workers’ compensation purposes. In holding the incident was covered, the court placed limits by finding the horsing around was neither extensive nor serious, and was commingled with the performance of job duties. The court also found that horseplay was part of the “nature of the employment” of the work crew and “may be expected.”

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