Safety and OSHA News

Worker injured during horseplay: Should he get workers’ comp?

A worker engaged in horseplay that was specifically prohibited in his employee handbook. He was injured and applied for workers’ comp benefits. Did a court grant them?

Jason Petrik worked for JJ Concrete Inc. in South Dakota. His job included idle time when he and his co-workers waited for other work to be completed before they could continue their own.

On Aug. 23, 2012, Petrik and his co-workers completed all their work and were waiting for a truck to arrive to pour concrete. They took their lunch break and waited on site.

It was hot, and some workers sat in a company truck because it was air-conditioned.

Petrik played a trick on his co-worker, Kevin Cole. He told Cole one of their co-workers on the other side of the job site needed to talk to him. Cole left the truck. Petrik took his seat inside the vehicle.

After about five minutes, Petrik cooled off and left the truck. When he saw Cole, he took off running. Cole ran after Petrik who tried to jump across a five-foot wide trench. Petrik landed awkwardly and broke his ankle. He applied for workers’ comp benefits. JJ Concrete denied coverage for his medical expenses and temporary total disability benefits.

Petrik took his case to the South Dakota Department of Labor which ruled his injury arose out of employment but not in the course of employment, therefore he couldn’t receive workers’ comp benefits. A circuit court upheld the DOL opinion.

Next, Petrik appealed to the South Dakota Supreme Court.

4-part test

The court found the DOL got it right that Petrik’s injury arose out of employment. To determine whether it was also in the course of employment, the supreme court said it would apply a four-part test in cases involving work injuries during horseplay. The four parts consider:

  1. the seriousness and duration of the horseplay
  2. whether the horseplay was during work or whether work was completely abandoned
  3. whether horseplay was an accepted part of the job, and
  4. whether the nature of the employment could be expected to include some horseplay.

In Petrik’s case, the state’s highest court found:

  1. “Where there are no duties to perform, there is no work to abandon … No doubt running through the job site was dangerous … However misguided, the extent of Petrik’s momentary and impulsive deviation during a lull in work was insubstantial.”
  2. The evidence shows Petrik didn’t abandon his duties because there were none to abandon.
  3. Petrik knew running on the job site was against the safety rules in JJ Concrete’s employee handbook. There was also no evidence that horseplay was an accepted part of the job, even though workers played innocent pranks on each other occasionally.
  4. “Multiple courts have found that employers whose work requires that men wait upon the job for work conditions, ought not to be heard to say that an accident, occurring out of the very conditions presented by the required waiting, is not compensatory.”

The test doesn’t require that all four questions be answers in the employer’s favor to deny comp benefits.

The court found, “The facts of this case present a close question.”

But ultimately the South Dakota Supreme Court ruled Petrik’s injury arose out of and in the course of employment. “Petrik’s act of horseplay was not a substantial deviation from his employment,” the court wrote.

What do you think about the court’s decision? Let us know in the comments.

(Jason Petrik v. JJ Concrete Inc., Supreme Court of South Dakota, No. 27173, 6/3/15)

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  1. Wow, that is the most convoluted logic I’ve seen recently. The supreme court said up front that there was not a presumption that just because it happened on the job that it was work related. Yet at the end, they ignored all the findings and ruled in the employees favor, for no other reason than it happened at the jobsite during a lull in work. It seems to me that they are saying that because there was physical work being performed then all the company rules can be ignored and that the employees are not responsible for their actions in ignoring the rules. I disagree with their verdict, and completely disagree with their logic.

  2. Most all companies have a no horseplay policy in place while on duty. If a panel of judges or a court can over turn those policies in the employee’s favor no matter what, then why have policies in place. The employee clearly failed to follow policy and got injuired on his own doing , why should the company be penalized?

    • NavymanBill says:

      Agreed. Reminds me of the old Dickens quote: “Then the law is an ass!” Obvious horseplay, and if the company had a “No horseplay” policy, that is all there is to it. The thinking and the logic behind the court’s decision is fouled up.

  3. Seriously, the company should appeal to a higher court. I agree, this is the most convoluted logic applied. The courts 4 part test was answered to read as if they were going to uphold the denial… then they subjectively just ruled the opposite. If the laws that say a worker must be injured in the course of performing their job duties is so flimsy that it can be overturned by subjectivity; then what is the purpose of the law? Clearly, I’ve never been on a site where running on a job-site is allowed – it is against sub contractors rules and the general contractor running the job – the guy should not get comp because clearly, he isn’t a professional. Further upholds the degradation of society in that there is no personal responsibility for our actions.

  4. williammckevitt says:

    What sort of message does this broadcast – that despite the companies efforts to create a safety culture on site, people can ignore the regulations and act foolishly. Their actions may or may not have been considered work but the fact is that horseplay was banned on site and they broke that rule – they should all have been disciplined. What would have happened if an innocent had been hurt?

    • An appeal to this decision is warranted and the employee should be terminated for willful violation of company policy regardless of the court decision…………

  5. Bad decision .. Bad law.

  6. Extremely poor decision. And we all pay the consequence thru workmens comp insurance fee’s.

  7. David Makaroff says:

    If we consider almost anything in real world, the court probably made the right call. Firstly, you almost have to leave horseplay out of the equation, especially since the guy guilty of horseplay was sitting comfortably in an air conditioned truck. The worker was only guilty of getting angry about being the brunt of a joke. Sure he broke some rules, but so what. Are you covered by insurance if you are going slightly over the speed limit and crash your truck? I work in the electrical trade. Workers cut themselves way too often even though we have a strict rule about wearing Kevlar gloves. They’re still eligible for compensation.

  8. Mezmerized says:

    Why have established rules of conduct if a court can over rule them with a very bad decision? It undermines the safety mission of the company!
    At no time during the course of a workday should horseplay be allowed or tolerated.

  9. Although I believe the court was wrong in their decision the one thing that stuck in my mind was that the court said that he did not abandon his work because there was no work to abandon. If this was a regular occurrence, that employees sat at the site waiting, it would have been a good idea for the company to assign employees a place to be under these circumstances. If he had been assigned to wait in the construction office, then he would have abandoned his assigned duties. Could consider this a supervision problem, although it would be nice not to have to treat adult workers like children and have to watch them all the time. Most horseplay policies are too broad and are open to interpretation.

  10. good decision otherwise he could sue in superior court for more that medical and wages.

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