Horseplay: Still a Viable Defense Work Injury
In a recent panel decision, the WCAB upheld the horseplay defense under Labor Code section 3600(a)(2). (Clevidence v. WCAB 11 WCAB Rptr 11,350, see also Hodges v WCAB (1978) 82 CA3d 894). As you know, Labor Code 3600(a)(2) requires that the employee is performing a service growing out of and incidental to his or her employment and is acting within the course of his or her employment. In this case the applicant was a warehouse stocker who got on a bike of a co-employee. The applicant lost his balance while riding the bike and was taken to a nearby hospital by ambulance. Fortunately for the employer, the applicant agreed at trial that riding a bicycle was an unsafe activity and that his employer did not condone riding a bicycle at work. The applicant tried to connect riding the bicycle as outside the horseplay doctrine because the employer condoned the storage of bicycles on their premises. The court rejected this argument.
The court correctly reasoned that the applicant’s act of riding a bicycle took him outside the scope of his work activities. Even if the incident happened during work hours and on the employer’s premises, the injury did not arise out of the applicant’s employment.
Simply put, injuries to the horseplay instigator or to a willing participant are not compensable so long as the horseplay is not condoned by the employer. (Houston v. WCAB, (W/D-1980); 45 CCC 148)
In our practice, most of the examples of horseplay relate to riding bikes, motorcycles, skateboards or acrobatic activities. However horseplay can relate to pushing, shoving and even dancing activities. However, if the employer condones the action, it may be deemed an industrial action. In one case where the employer allowed dancing, the case was found to be industrial. Consequently, while this case may seem to state the obvious, it should serve as an important reminder of some of the AOE/COE issues we face that need to be handled correctly.
The important fact that needs to be stressed is that the employer does not condone the horseplay. Where the employer allows it, injuries resulting from horseplay will most likely be found to be work related. It is important to make sure employers know they need to specifically disallow and/or prohibit such activities. Should an employer allow the activities to occur, the courts will likely find that is the equivalent to condoning the activities.