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:
- the seriousness and duration of the horseplay
- whether the horseplay was during work or whether work was completely abandoned
- whether horseplay was an accepted part of the job, and
- whether the nature of the employment could be expected to include some horseplay.
In Petrik’s case, the state’s highest court found:
- “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.”
- The evidence shows Petrik didn’t abandon his duties because there were none to abandon.
- 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.
- “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)
