11-26-2018; Understanding/Defending Horseplay Claims in WC; Kevin Boyle on Two New IN WC Hearing Members and more

Synopsis: Understanding and Defending WC Claims When “Horseplay” Is Present.

Editor’s comment: I never forget a veteran Claimant lawyer telling me the first and most important rule in determining if a WC claim is compensable/viable is whether the employee was at work when injured. While that is a factor, to be sure, it is not the only one to consider. It is possible for a worker to be on the job and be injured and lose benefits due to the worker being engaged in “goofing off” or what is technically referred to as horseplay.

Please note it is a solid idea to include prohibitions against horseplay or “goofing off” in the employee handbook to reinforce this concept. Signage, as I have placed in this article is real and something to consider. Please also remember most of this defense concept is not contained in legislation, in most states. Most of it is common sense--employers don’t hire or pay people to goof off.

Please consider these facts, Peter Petitioner was at work and decided to play a trick on his co-worker Innocent Bystander. It was a hot day and the workers decided to take a break by sitting in an air-conditioned truck for a short breather. Peter P. made up a story and told Innocent Bystander or IB one of their co-workers on the other side of the job site needed to talk to him about work. Innocent Bystander left the air-conditioned truck to go seek out the other worker. Peter Petitioner took Innocent’s seat inside the cool vehicle.


After about five minutes, Peter P. cooled off and left the truck. When he saw Innocent Bystander, he could tell Innocent knew Peter had fooled him. Peter took off running. Innocent ran after Peter P. who tried to jump across a five-foot wide trench. Peter P. landed awkwardly and broke his ankle. He then applied for workers’ comp benefits. The employer denied coverage under the applicable WC Act for medical expenses, temporary total disability benefits and permanency/impairment.


Peter P. took his case to the State WC Board which ruled his injury arose out of employment but did not occur in the course of employment, therefore he couldn’t receive workers’ comp benefits. On appeal, the initial denial was affirmed.


Next, Peter P. appealed to that State’s Supreme Court. As they are likely to do, the highest court issued a lengthy analysis and opinion that is illustrative for WC students and veterans.


4-part test

The Supreme Court found the State WC Board got it right that Peter P’s injury arose out of employment. To determine whether it was also in the course of employment, the Supreme Court said it would apply a four-part test in cases involving work injuries during horseplay. The four parts they felt we should consider:


1.      the seriousness and duration of the horseplay

2.      whether the horseplay was during work or whether work was completely abandoned

3.      whether horseplay was an accepted part of the job, and

4.      whether the nature of the employment could be expected to include some horseplay.


In Peter P.’s case, the State’s Highest Court ruled:


1.      “Where there are no duties to perform, there is no work to abandon … No doubt running through the job site was dangerous … However misguided, the extent of Peter P.’s momentary and impulsive deviation during a lull in work was insubstantial.”

2.      The evidence shows Peter P. didn’t abandon his duties because there were none to abandon.

3.      Peter P. knew running on the job site was against the safety rules in the employee handbook. There was also no evidence that horseplay was an accepted part of the job, even though workers played innocent pranks on each other occasionally.

4.      “Multiple courts have found that employers whose work requires that men wait upon the job for work conditions, ought not to be heard to say that an accident, occurring out of the very conditions presented by the required waiting, is not compensatory.”


The Court also ruled this test doesn’t require all four questions be answered in the employer’s favor to deny comp benefits.


What do you think the Court’s decision should be? Send me your best thoughts.


Here are further thoughts on the issue:

  • If your employer is aware of and has gone along with this kind of activity in the past, then such an injury may be considered in the course of the employment. Similarly, if someone were horsing around but stopped so a worker could get back to work, and the other person kept messing with them leading to injury, it might meet the standard.

  • In other words, if you were the innocent victim of another person’s horseplay, or if your employer knowingly allows the horseplay to proceed without intervening, the injury may be compensable. Otherwise, a worker injured while participating in horseplay or just goofing off is not entitled to worker’s compensation.

If you have questions/concerns about the horseplay WC defense in a given state, please send a reply and we will provide research and answers. We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Two New Indiana WC Single Hearing Members (Judges) Just Named and Soon To Take Office. Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.

Editor’s comment: Last week, I mentioned that temporary assignments were made for two Single Hearing Member regions. However, here’s the latest: two replacements have just now been picked.

Bridgett Repay will replace the long-serving Northwest Region SHM Gerald Ediger. Ms. Repay has practiced  for over 20 years in the Region on both sides of IN worker’s compensation cases.

In the Southeast Region, Krysten LeFavour will be replaced by new hearing member Kyle Samons. Mr. Samons has been a prominent plaintiff’s WC attorney in Jeffersonville, IN for the last seven years.

I have experience with both new judges, and if you have any questions, please contact me.

Thank you Judge Ediger and Judge LeFavour for all of your time at the IWCB, and we look forward to working with these two fine worthy replacements in the near future.

If you have questions, concerns or just want to reasonably and rapidly close your IN WC claims, no one is faster and better than Kevin Boyle. He can be reached 24/7 at kboyle@keefe-law.com