Safety and OSHA News

Ice cube horseplay causes injury: Does employee get workers’ comp?


It started as innocent horseplay: Employees threw ice cubes at a co-worker. But the horseplay ended with an injury. Does the employee get workers’ comp benefits since he was injured at work?

Matthew Simms was a server at a Ruby Tuesday restaurant in Manassas, VA. During a work shift, he walked into the kitchen to enter an order.

Three other employees in the kitchen at the time threw ice at him. The employees were Simms’ friends.

After some ice hit him in the back of the head, he turned around and felt a pain in his shoulder.

Then as he lifted his left arm to block some thrown ice, he felt his shoulder dislocate.

Simms went to a hospital for treatment. He wasn’t able to work for four days after the incident.

He also claims the injury required him to seek additional medical treatment, including surgery, which resulted in another period when he wasn’t able to work.

Simms applied for workers’ comp benefits.

Interpreting the horseplay doctrine

A deputy commissioner of the Virginia Workers’ Compensation Commission awarded Simms four days of temporary total disability benefits. The commissioner said the injury arose out of and in the course of his employment.

However, Simms had previously dislocated his shoulder several times, unrelated to his employment. For that reason, the commissioner said Simms’ surgery and the period that followed when he wasn’t able to work weren’t related to work.

Simms and Ruby Tuesday both appealed to the full Commission.

The Commission reversed the original ruling, saying Simms’ injury didn’t arise out of his employment even though he was the innocent victim of horseplay by co-workers.

A state appeals court agreed with the Commission, and then the case went to the Virginia Supreme Court.

The supreme court noted that the appeals court had relied upon an earlier case to make its decision. In that case, an employee was assaulted at work, a key difference according to the supreme court.

The court said if an assault is toward a person and not directed against him as an employee or because of his employment, the resulting injury doesn’t arise out of employment.

On the other hand, the court noted that there is a history in many states of accepting innocent horseplay as something that arises in the course of work. Therefore a resulting injury is eligible for workers’ comp benefits.

“The workplace creates a situation where workers, being what they are — fallible and sometimes playful human beings — will from time to time engage in pranks, some of which are dangerous,” the court wrote. “The playful or joking actions of the fellow employees are found to be an actual risk of the employment.”

That’s where the court drew the line: An injury from innocent horseplay is eligible for workers’ comp benefits. An injury from an assault at work that had nothing to do with the work situation isn’t.

The Virginia Supreme Court reversed the appeals court and sent Simms’ case back to the Workers’ Compensation Commission for reconsideration of the claim.

What do you think about the court’s ruling? Should lawmakers address whether injuries from innocent employee horseplay are eligible for workers’ comp? Let us know what you think in the Comments Box below.

(Matthew Edward Simms v. Ruby Tuesday, Inc., Supreme Court of Virginia, No. 091762, 1/13/11.)

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  1. Were they ice cubes, crushed ice or ice blocks?

  2. This is one of those that could go either way. In my opinion, more information is needed – and a lot of questions that aren’t addressed in the article would have to be asked, i.e., was horseplay commonplace, did management condone it by not stopping it, was it an isolated incident. The key question goes to whether the culture of the restaraunt condoned this type of activity. I just don’t know….One other key: Did the horseplay result in some kind of consequence for those involved? Obviously, if there was discipline applied to those employees – it would show that the restaraunt at least did not condone the behavior…

  3. cluelessinky says:

    In such a case I believe that the employer may have some degree of responsiblity. I would hope that the managers of the restaurant had, at least bare minumum, safety meetings with their employees. And during those meetings I assume that the topic of horseplay would come up. The managers should speak to these acts and advise the employees that sanctions up to and including dismissal would be applied if employees engaged in such acts. Failing to have such discussions could , by omission, be understood as at worse, the implicit approval of such actions and, at best, corporate indifference.

  4. If I walked into an area in order to perform my duties and was unexpectanly assailed by something flying at me, whether crushed or cubed, I would take a protective stance to avoid whatever it is. In doing so, if I was injured, I would have expected the employer to have had more control over there employees, and therefore whould hold claim against the employer for workers’ comp benefits.
    If this sort of action was something I also engaged in on a periodic bases with other employees, some of which were now taking their revenge on me, I would be guilty of the horseplay even though I was the victim at that particular “assault.” An ongoing participation in horseplay that can cause injury to the participants is as much the same as a sudden outburst of horseplay and should not be accepted under WC.
    As far as whether the WC should have accepted the surgery, much more information is needed. An employer “takes them as they find them” system of hiring employees has to accept some responsibility of aggravation and/or exacerbation to the non-industrial conditions. The medical question needs to be answered as to whether the new action of protecting oneself caused a temporary aggravation to a pre-existing condition or did it further exacerbate the condition now making it an opperable situation because of the work-place incident.
    As always, every case has it unique details, which we are often not presented in these scenarios. But it is enjoyable to relate these stories to our own claims.

  5. There should be no workman’s comp for this employee. Workman’s comp should be reserved for those who are injured while performing a work duty or based on the dangerous conditions in his workplace. Being the target of an ice attack is not an expected part of his job duty, and the company cannot be held responsible for this dangerous condition with the exception being that it can be shown that they condoned this type of horseplay. It’s an unfortunate event for him, but we all are at risk of unfortunate events everywhere we go. The workplace should not have to pay for it just because he happened to be at work. That may not be the way the law is, but it’s my opinion of how it should be.

  6. If the person was the unwilling victim of “horseplay” by fellow workers, he should get full compensation. It appears he was re-injured by their “playfulness”, so the preexisting condition should not matter – he was injured by fellow workers while on the clock. I agree that there should be discipline applied to the employees that threw the ice, for the man’s injury and the consequent hazard they created with ice on the floor, which endangered many other employees and, if it was in a public area, the restaurant guests. I wonder if a guest slipped and fell on the ice, or was injured trying to avoid flying ice, what their legal standing would be.

  7. Whatmeworry says:

    The injured employee should get comp benefits. There is no indication he was involved in the horseplay; he was doing his job – putting in an order – when he became the victim. Despite all the hoopla with the courts, it seems pretty clear to me it’s compensable.

  8. Rational Won says:

    We do not know the whole story. BUT, if the workplace condoned or promoted (I mean Ruby Tuesday’s is hardly the WWF) this type of behavior then the worker qualifies for WC as the event could be considered part of work. However, this sounds more like a fraternity hazing than a joke. “Friends” threw the ice? However, Im “curious” why the employee did not seek legal action against his “friends” for this event. If management did not condone this type of behavior, this is clearly a case of horseplay that, even in the most strict environment, can hardly be “controlled” by the establishment. In my opinion, the employee is doing a disservice to those of us who want whats right for both employer AND employee. This type of event sets these goals back. If these people truly are “friends” and the management does not condone this type of behavior the “friends” should be approached with suit, not the establishment. Just because an injury happens at work does not mean it is work related.

  9. I guess I will never understand It said in the report that ( Simms had previously dislocated his shoulder several times, unrelated to his employment. For that reason, the commissioner said Simms’ surgery and the period that followed when he wasn’t able to work weren’t related to work.) This man is using the system to fix a problem he has had long before this. Point is he is getting something fix by workman comp. and will not half to pay for it himself…… wake up

  10. It is not surprising why employers have higher number of lawyers than actual workers:):). This case, from the given story, looks more like milking a system.

  11. PO'd Safety Guy says:

    In some states I believe the law says comp applies if the events at work exacerbate a pre-existing condition. This mirrors OSHA 1904.5(a) which states, “You must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in § 1904.5(b)(2) specifically applies.” I don’t think there is an applicable exception per (b)(2).
    Even though Simms had dislocated his shoulder several times, an event at work caused the current injury. I’m not saying I agree with it, but that’s the way the law reads.

  12. The fact that the employee was indeed performing his job tasks when the act that caused the injury took place, does make him eligible for worker’s comp. Because the act aggravated a pre-exsiting injury should also make it coverable by worker’s comp. This employee was a victim of others in the workplace who had no regard for the safety of others. It is the employers responsibility to provide a safe environment for its employees and in that case it was not.

  13. colmansafe workadvocate says:

    This is an important lesson to all employers of labour and safety personnels in work places to always ensure they intervene immediately they observe an unsafe act by any worker and management should make clear in their safety policy that horseplay of what ever form is not condoned in any way within the work environment

  14. colmansafe workadvocate says:

    Sorry, by the OSHA’s regulation cited by one of the contributors, Simms should be compensated, this serves as purnishment to the management of his company for condonning horseplay and the management is free to press charges against those other workers or adopt any disciplinary measure they consider approprate

  15. Captain Safety says:

    Virginia’s got some bass-ackwards laws, but I know for most of the country, if you aggravate a pre-existing condition, you are eligible for WC. And seeing as he was not participating in the horseplay other that as a target for it, seems like a no-brainer to me.

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