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Muddying the Waters on What Constitutes Horseplay

In Trujillo v. Lowe’s, W. C. No. 4-932-395 (July 29, 2014), the claimant was injured when he engaged in a “chest bump” with a co-worker to celebrate the completion of a particular job duty. It has long been settled law that an injury caused by “horseplay” does not arise out of or occur within the course of employment and, therefore, is not a compensable injury. In finding that the chest bump was horseplay, the Administrative Law Judge therefore denied compensability of the claim. The Industrial Claim Appeals Office affirmed the decision of the Administrative Law Judge, but the decision is so convoluted that it leaves open the possibility that a celebration “chest bump” by two other employees of this same employer could be a compensable injury under a different set of facts.

In Trujillo, the claimant and his co-worker had just successfully completed the preparation of a large order with the final application of shrink wrap and, in order to note their achievement, agreed to perform a “chest bump” (which the claimant admitted entails two individuals running toward each other and jumping into the air to bump chests). The Administrative Law Judge found that the impact from the chest bump caused the claimant to fall and injure his arm. The Administrative Law Judge concluded that the practice of running and jumping into each other to bump chests deviated from employment so substantially as to remove the claimant from the course of employment. To reach that conclusion, the Administrative Law Judge first found that the chest bump occurred while the claimant still had further work to perform in order to get the designated order complete. The Administrative Law Judge relied upon this finding to establish that the chest bump activity was a deviation from work.

On appeal, the claimant argued that he was engaged in a brief celebration with his co-employee due to the completion of the largest part of a difficult task required before the end of their shift, and that, because the celebration had to do with the work activity and it was a brief and insubstantial deviation, it did not remove the claimant from the course of employment. In affirming the Administrative Law Judge’s decision, the Industrial Claim Appeals Office observed that the evidence on appeal must be considered in the light most favorable to the prevailing party, and that the panel must defer to the Administrative Law Judge plausible inferences drawn from the record. Thus, even though the Administrative Law Judge did not specify a list of factors which led him to conclude the “chest bump” deviation was a serious abandonment of duty, the panel found that the facts that (1) there was a significant size difference between the employees engaged in the chest bump and (2) the employees attempted to conceal what actually happened after the chest bump, were sufficient to support the inference that the employees themselves perceived that a chest bump could be seen as a substantial deviation from work duties. Therefore, the Industrial Claim Appeals Office affirmed the denial of benefits under the horseplay doctrine.

While the Industrial Claim Appeals Office appears to have affirmed the decision because it was required to defer to the Administrative Law Judge’s plausible inferences in the record, it is debatable whether the facts in the record support the “plausible inference” that the activity was a substantial deviation. First, the Administrative Law Judge relied upon the finding that the chest bump occurred while the claimant still had further work to perform in order to get the designated order complete to support the conclusion that the chest bump was a substantial deviation from work activities. This finding makes no logical sense. If the celebration chest bump would not have been a substantial deviation if it occurred at the conclusion of the completion of the duties, then the same celebration chest bump at the completion of one portion of the job duties also cannot be a substantial deviation. Second, the size of the parties involved in the chest bump should be irrelevant – the activity is either a deviation for all employees or for none. To allow the size of the parties involved in the activity to determine if the activity was horseplay is to permit two employees to engage in the activity based on their relative size, without any way to judge when the size difference takes the activity outside of the course of employment.

The effect of this decision essentially establishes that it is possible that two similar-sized employees from this same employer could engage in a celebration chest bump after concluding the project and that activity would not be a substantial deviation from employment. This result appears completely inconsistent with the idea behind the horseplay doctrine.

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