Worker bears burden to show butt wiggle not horseplay

A worker cannot recover for injuries arising from aggressive participation in horseplay that constitutes a substantial deviation from his employment because such actions do not rise out of and in the course of employment. The worker bears the burden to establish he did not substantially deviate from the employment.

Case name: Xenia Rural Water District v. Vegors, No. 09-0426 (Iowa 07/23/10).

Ruling: The Iowa Supreme Court held that the workers' compensation commissioner applied an incorrect burden of proof of horseplay, and it remanded the case for reconsideration.

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What it means: A worker cannot recover for injuries arising from aggressive participation in horseplay that constitutes a substantial deviation from his employment because such actions do not rise out of and in the course of employment. The worker bears the burden to establish he did not substantially deviate from the employment.

Summary: A machine inspector for a water district was injured at work after a coworker hit him with a pickup truck. The inspector had his hands full and "wiggled his butt" at the coworker to acknowledge him. The coworker attempted to bump the inspector with the mirror of his truck but instead hit him with the truck bed. The inspector testified that he and the coworker commonly acknowledged each other when their hands were full, such as by waving the boom of a track hoe at each other. The water district argued that the inspector could not be compensated because he engaged in horseplay. The parties disputed who had the burden of proof on this issue. The Iowa Supreme Court stated that the inspector retained the burden to show his injury arose out of and in the course of his employment, and remanded the case for reconsideration.

The court also stated that it could not be determined as a matter of law whether the inspector engaged in horseplay that barred recovery. No evidence showed that the inspector instigated or aggressively participated in horseplay to an extent that prevented compensation. The horseplay was initiated by the coworker. The court stated that the inspector's "butt wiggle considered in isolation could be thought a 'harmless act of levity.'"

Iowa workers' compensation statutes bar compensation where a worker's injury was caused by the willful act of a third party directed against the worker for personal reasons. The court held that the statute was inapplicable to this case because the coworker's action of hitting the inspector with a truck was not done for "reasons personal to the employee." No evidence showed that the inspector and his coworker had any relationship outside of work or that the coworker was with the inspector for reasons outside the working environment.

Read more at the WorkersComp Forum homepage.

October 7, 2010

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