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Horseplay Doctrine Alive And Well In Virginia

Published by on May 25, 2011

In Simms v. Ruby Tuesday, Inc., Record No. 0091762 (January 13, 2011) the Supreme Court of Virginia considered the issue of whether the actual risk test analysis articulated in Hilton v. Martin, 275 Va. 176, 654 S.E.2d 572 (2008) materially changed the “innocent victim of horseplay” doctrine related to workers’ compensation claims.  More after the […]

In Simms v. Ruby Tuesday, Inc., Record No. 0091762 (January 13, 2011) the Supreme Court of Virginia considered the issue of whether the actual risk test analysis articulated in Hilton v. Martin, 275 Va. 176, 654 S.E.2d 572 (2008) materially changed the “innocent victim of horseplay” doctrine related to workers’ compensation claims.  More after the break.

Matthew Edward Simms filed a claim with the Virginia Workers’ Compensation Commission in which he sought coverage under the Workers’ Compensation Act, Code 65.2-100 et. seq., for an injury that occurred during and at the place of his employment — Ruby Tuesdays in Manassas, Virginia.  During his work shift, Simms walked into the kitchen to enter an order and print a check for a customer.  There were three other employees in the kitchen at the time that started throwing ice at him.  Simms testified that he had contact with the three employees outside of work and considered them friends.

Simms testified that after a piece of ice hit him in the back of the head he turned around and felt a pain in his left shoulder.  As he continued to be pelted in the chest and face with ice he tried to lift his arm to block a piece from hitting him in the face.  He lifted his left arm, while holding the book he used to take orders, and felt his shoulder dislocate.

Simms alleged that after the injury, he was unable to use his shoulder for everyday activities and was unable to work for a period of time.  Simms had been taken to the hospital to receive treatment, was referred to a doctor for follow up treatment and also claimed that he required additional medical treatment for his injury.  This included surgery that resulted in an additional period of temporary total disability.

The deputy commissioner of the Commission concluded that Simms was the innocent victim of horseplay perpetrated by co-employees.  The deputy commissioner concluded that Simms sustained an injury by accident arising out of and in the course of his employment and that Simms’ injury was compensable under the Act.  Simms was awarded a 4 day period of temporary total disability.  Because prior to his injury at work Simms’ shoulder had dislocated on several occasions, that were unrelated to his employment, the deputy commissioner found that the surgery Simms later had on the shoulder and following period of temporary total disability had not been proven to be related to his injury at work.

Both parties appealed to the full Commission.  The Commission stated that even though Simms was an innocent victim of horseplay, the Hilton decision had “materially changed the innocent victim of horseplay law.”  The Commission stated that there was “no connection between the conditions under which the employer required the work to be performed and the assault by the co-workers” as required by Hilton and reversed the deputy commissioner finding the injury did not rise out of employment.

On appeal, the Court of Appeals affirmed the Commission agreeing that Hilton called into question the continued viability of the horseplay doctrine as originally as set forth in Dublin Garment Co. v. Jones, 2 Va App 165 (1986) (and first argued by Judge Cardozo in New York in 1920). It therefore declined to apply the horseplay doctrine and concluded that even though Simms was the innocent victim of horseplay, the “arising out of” prong of the test for whether an injury comes within the Act requires that there be an additional causal connection between the employee’s injury and the conditions under which the employer requires the work to be done.  The Court of Appeals affirmed the Commission’s finding that no such causal connection existed in Simms’ case, and that Simms’s injuries therefore, did not arise out of his employment and were not covered under the Act.

Simms argued to the Supreme Court that the Court of Appeals erred in applying the Hilton analysis in the case, which involves an innocent victim of horseplay.  Simms contended that Hilton is not controlling in determining whether his injury arose out of his employment because Hilton concerned an assault.  The coverage of Simms’ injury under the Act hinged upon whether Simms’ injury “arises out of” his employment.

The Supreme Court clarified that Hilton did not reference the horseplay doctrine or related precedent.  Rather, the co-workers act in Hilton (turning the power to a cardiac defibrillator to 150 joules and touching the claimant with them resulting in death by cardiac arrest) was considered an assault.  The Court in Hilton therefore relied upon precedent involving assaults on employees.  The Court did not intend to scuttle the horseplay doctrine or impose additional burden of proof upon claimants found to be victims of workplace horseplay.

The Supreme Court distinguishing the playful act of pelting Simms with ice from the facts of Hilton, remanded the case.  Under the actual risk test, an injury comes within the Act only if there is a causal connection between the employee’s injury and the conditions under which the employer requires the work to be done.  In essence, the Court stated, the playful or joking actions of the fellow employee are an actual risk of the employment because horseplay is a natural incident of work contemplated by a reasonable person failure with the whole situation.  The workplace horseplay doctrine has withstood the test of time and was not altered by Hilton.  Therefore, the Court reversed the Court of Appeals and remanded the case to the Court of Appeals to remand to the Commission so that it may consider the claim consistent with the law as stated above.

Full text of the opinion can be found here.

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