Today's blog is about a case I read that turned on the wiggle of someone's derriere; yes it was all about throwing ice and ass-shaking leading to the ultimate legal question of: How do I get paid when horseplay is a part of the history for a workers’ comp injury?

This is a news item from out of the Business Insurance site discussing the “horseplay doctrine” in the context of a restaurant worker suffering a shoulder injury caused when he raised his arm for protection from ice being thrown by a co-employee. I actually disagree with the characterization that raising one’s arm can cause this injury. I suspect the waiter or server’s shoulder was injured from a wear and tear injury first caused by lifting heavy bus trays and the raising the arm simply put it over the edge of tearing completely or seriously. It should be noted the server did not win his case because of pre-existing shoulder conditions from previous shoulder dislocations. But let us move on so we can get to the ass-shaking case. Anyone who's every worked as part of a wait-staff knows that bussing tables is not easy work.

Here is a quote from the article and this very conservative court.

However, the Virginia Court of Appeals ruled in 2009 that even though Mr. Sims was an innocent victim of horseplay, there was no connection between his employment conditions and the ice attack. The ruling sided with the Virginia Workers' Compensation Commission, which had overturned the deputy commissioner's decision.

The writer does a good job of explaining the actual risk test and does cite the Iowa ruling doing a distinguishing and tortuous fact-splitting analysis. Get ready for a major headache when trying to apply this holding. I can hear it now,

• Q by the Defense Lawyer: How much did you shake your butt?
• A by injured worker: Not much.
• Q: How much is not much?
• A: Not much.
• Q: Can you show me?
• A: Are you asking me to shake my butt for you?
• Q: Yes, just like you did on the job that day.
• A: Well I can't do it like I did then because I hurt my back.
• Q: Well just do it as close as possible.
• A: ... all lawyers watch as the injured worker shakes their butt.
• Q: Defense lawyer: Let the record reflect the witness shook his butt vigorously.
• Objection by the worker's lawyer: For the record I strenuously object, the butt shaking was not vigorous, what I saw was not very vigorous at all. In fact it appeared more like a calm butt shaking sort of like you'd see if someone were just maybe a little cold. For the record I'm gong to demonstrate. [Shakes butt and gets a back injury that is covered under his own work comp insurance policy although in that deposition they will discuss whether he was smiling at the time because perhaps it was horseplay. Now did the fact he was demonstrating a non vigorous butt shaking keep him within the wc comp statute? And was the demonstration considered horseplay? Stay tuned for that deposition in a later case.]

Another quote concerning this writers understanding of the actual risk test:

But in its ruling last week, Virginia's Supreme Court applied an “actual risk test,” in which an injury falls within workers comp law “only if there is a causal connection between the employee's injury and the conditions under which the employer requires the work to be done,” court records state.

The state high court also relied on a theory of recovery, which has found that joking actions of co-workers are a risk of employment because humans are playful and from time to time engage in pranks, which can be dangerous.

The Iowa Supreme Court case is Xenia Rural Water District and Emacasco Insurance Co vs Norma Vegors and involves a machine operator. The Iowa Supreme Court carved out an exception for those workers injured if they instigated or aggressively participated in the horseplay. I the case of Vegors the case was remamded back for additional findings.

The Supreme Court found that “a claimant cannot recover for injuries stemming from an employee's instigation or aggressive participation in horseplay that constitutes a substantial deviation from his employment.”

Therefore, the high court said the claimant bears the burden of proving he did not substantially deviate from his employment by instigating or aggressively participating in the horseplay.

The Supreme Court remanded the case.

The ruling just adds one more uncertainty to the process but saves the employers from having to foot the bill for work injuries when employees are involved in horseplay that goes beyond…. Hmmm, goes beyond what? Oh yeah, that’s the problem with this decision the wording is vague enough that these cases will never get resolved. Welcome to the practice of law. As for the Businesss Insurance website, this is actually a pretty good site for insurance law discussion. I posted the decision on my website. You can always go the Iowa Supreme Court decision as well.

Maybe this is what is meant by the law is an ass. Can't we just go back to beating each other up over the gay-marriage decision?

The phrase "the law is an ass" originates in Charles Dickens' Oliver Twist, when the character Mr. Bumble is informed that "the law supposes that your wife acts under your direction". Mr. Bumble replies "If the law supposes that ... the law is a [sic] ass—a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience."

• 'Horseplay doctrine' entitles worker to comp: Va. court
  Business Insurance
• In a contrary ruling last year, the Iowa Supreme Court ruled an injured worker must prove his injury was not a result of horseplay in order to receive ...
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