Horseplay and Worker's Compensation Coverage

If an employee is involved in "horseplay" at work and suffers an injury, is that covered by worker's compensation legislation?  The Denver Post puts it quite succinctly with this headline: Court: Workers' comp covers horseplay.  The case discussed in the article is Panera Bread LLC v. Industrial Claim Appeals Office of the State of Colorado and Julio Medina. 

According to the Colorado Court of Appeal, "to obtain compensation for an injury, an injured employee must, at the time of injury, have been “performing service arising out of and in the course of the employee’s employment."  This is a similar test to that found in the Ontario Workplace Safety and Insurance Act ("A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.")

What about horseplay?  The Court seems to apply a four part test:

(1) the extent and seriousness of the deviation;(2) the completeness of the deviation, i.e., whether it was commingled with the performance of a duty or involved an abandonment of duty; (3) the extent to which the practice of horseplay had become an accepted part of the employment; and (4) the extent to which the nature of the employment may be expected to include some horseplay.

The question is whether "the claimant’s conduct constituted such a deviation from the circumstances and conditions of the employment that the claimant stepped aside from his job and was performing the activity for his sole benefit."

In this case, the Court found that the "horseplay" was not such as to disentitle the employee from coverage.  So the title of the article (Worker's Comp Covers Horseplay), is an overly broad characterization of what the Court did here.

There are a number of Ontario cases on the issue of whether an injury occurring by reason of horseplay is covered under the Act.  In fact the Workplace Safety and Insurance Board has a policy on this(Operational Policy Manual, Document 15-03-11 "Fighting, Horseplay, and Larking"):

Similarly, the Act does not provide coverage for workers injured while participating in horseplay and larking.

An injured worker who is an innocent victim has entitlement if the worker

• does not participate in the horseplay or larking, and
• does not retaliate.

As with fighting, those who initiate the horseplay take themselves out of the course of their employment. As such, any innocent injured worker has a right of third party action.

The Workplace Safety and Insurance Appeals Tribunal has recently dealt with this issue in Decision No. 71/04 and Decision No. 2403/03.  The leading Ontario case is Decision 804/89.  The situation in Ontario seems to be more straightforward than in the US where, according to the Denver Post article, there is a growing recognition that "workers injured by horseplay or pranks can receive workers' comp."