A server for a restaurant walked into the kitchen to enter an order into the computer and print a check for a customer. Three co-workers were in the kitchen and started throwing ice at him. The server considered the co-workers to be friends.
The server testified that, after a piece of ice hit him in the back of his head, he turned around. As he turned around, he felt pain in his left shoulder. The server continued to be hit in the chest and face with ice, and he tried to lift his hand to block his face. He lifted his left arm while holding the book he used to take orders, and he felt his shoulder dislocate.
The server sought benefits.
The workers' compensation commission stated that, even though the server was an innocent victim of horseplay, his injury did not arise out of the course of his employment, so he was not entitled to benefits. The court of appeals agreed with the commission. The worker then appealed to the Virginia Supreme Court.
Was the commission correct in finding his injury did not arise out of his employment?
A. Yes. There was no connection between the conditions under which the restaurant required the work to be performed and the assault by the coworkers.
B. Yes. An innocent victim of horseplay is not entitled to compensation.
C. No. The server's injury as a result of his co-workers' prank was inherent to his employment.
How the court ruled: C.
The Virginia Supreme Court reversed the decision of the court of appeals and sent the case back for a determination of whether the server was entitled to benefits. Simms v. Ruby Tuesday, Inc., et al., No. 091762 (Va. 01/13/11).
The court said that the parties did not dispute that the server's injury resulted from an accident in the course of his employment.
The court said that pelting a coworker with ice in a playful manner is distinguishable from an assault. The court applies the actual risk test to determine if an injury arises out of employment. An injury comes under workers' compensation if there is a causal connection between the worker's injury and the conditions under which the employer requires the work to be done. The court said that unlike assault cases, where a causal connection must be proven between the assault and the employment, when a coworker engages in horseplay by doing something in a playful or joking manner that injures an innocent worker, the injury is inherent to the injured worker's employment or is directed toward the worker as an employee.
A is incorrect. The court explained that under the actual risk test, injuries to a non-participating innocent victim of horseplay have been held to be an actual risk of the workplace because "the workplace creates (the) situation" that results in the injury. Horseplay is "a natural incident of work contemplated by a reasonable person familiar with the whole situation, as a result of the exposure occasioned by the nature of the employment."
B is incorrect. The horseplay doctrine states that when a worker is an innocent victim of a co-worker's playful or joking actions, any injuries are compensable.
is the legal editor of the WorkersComp Forum.
This feature is not intended as instructional material or to replace legal advice.
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February 10, 2011
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