Generally speaking workers compensation laws consider on the job horse play with resulting injury as non-compensable. This aspect is true whether the injury involves just the employee or includes other persons. It is considered that the employee stepped out of the employment functions to do practical joking, or playful physical contact with other persons.
Compensable Horseplay Injuries:
Like substance abuse, fraud, or self -infliction, (which are deemed non-compensable under compensation law), the courts have been chipping away at presumed defenses. They are requiring employers prove that the horseplay injury was solely due to the employee’s actions and initiative. Generally, courts are ruling on a case by case basis.
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Currently, courts are applying four tests on testimony facts presented. These are known as the Larson Tests.
- Extent and Seriousness of the Deviation.
- Was the horseplay due to job abandonment or did it include some job performance.
- Acceptance of Horseplay by the Employer
- Was the nature of the job such that horseplay might be accepted.
Weak investigations, or uncorroborated facts, leave room for the judges to interpret compensability in favor the employee.
Policy:
The policy needs to be in writing, and enforced with appropriate penalties for violation. Incorporating the horseplay aspects in other employee behavioral policies is the easiest way to address this issue.
However, if this not possible a simple program addressing the four tests above should be implemented. Professional guidance should be obtained. A zero tolerance program needs to exist.
Investigation:
As soon as the employer becomes aware that the injury is due to horseplay, insist that the claim investigator make a thorough investigation. This requires statements (or affidavits) from all parties involved or who have knowledge of the incident. Onsite inspections, re-enactment of the incident (if possible) photographs, police involvements, and other evidentiary proofs.
Provide copies of policy and violation penalties to show firm enforcement. The investigator should also seek advice from defense counsel for other evidence to gather.
Other Exposures:
Sometimes an injured employee files a claim or law suit against fellow employees that perpetrated the act. When this occurs the investigation should be directed by legal counsel. There can be exposure for employer liability.
Such lawsuits might be dismissed by the courts if the claim is deemed compensable by the compensation court. This is due to the rule that workers compensation is the sole area of recovery. Further, the sued employee may lack sufficient assets to pay a judgement. Homeowner insurance can be asked to intercede, but this will be done under reservation rights to deny coverage if the act proves intentional.
Employers might face legal and financial exposure if the injured employee brings a claim or sues the employer for negligence. They might all edge poor hiring practices, allowing poor employee behavioral activity, or numerous other activities.
In these instances notice to the employer liability carrier, the negligence carrier as well as the Directors and Officer Liability carrier needs to be made at once.
Disposition:
Once all facts and investigation are complete conference with claim handlers, lawyers, and insurance carriers on the course of action for disposition. There must be an honest evaluation on the chances for the employer to prevail in the courts. Do not allow decisions based on emotion or personal desire. Take into account opposing counsel strengths if there is one or more.
If the decision is to try the case goes forward, watch the proceedings very acutely. Should there be any indications that the employer will not prevail, consider settlement before a judicial outcome is made. Judges and juries don’t always abide by fact and law. Be prepared for disposition rather than accept a poor judicial outcome.
Summary:
- The law generally finds that horseplay injuries are not compensable.
- Four steps are currently used by the courts to determine compensability.
- An effective policy, strong enforcement and complete investigations are the way to prepare for defense of horseplay claims.
- Other exposures are possible. Prepare decisively for the eventualities when confronted by them.
Author Michael B. Stack, Principal, COMPClub, Amaxx Work Comp Solutions. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool. He is co-author of the #1 selling book on cost containment, Your Ultimate Guide To Mastering Workers Comp Costs www.reduceyourworkerscomp.com, and Founder of the interactive Workers’ Comp Training platform COMPClub. Contact: mstack@reduceyourworkerscomp.com.
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.
