Traditionally in Virginia if a worker was injured as a result of innocent horseplay by a fellow worker, he or she could file a claim for workers’ compensation. Typically, the injury would arise out of simple mischief between fellow workers. Unfortunately, an injury would sometimes result from this horseplay.
This is what happened to Mr. Simms, an employee of Ruby Tuesdays on June 3, 2006. He was working at the restaurant when fellow employees started pelting him with ice cubes. Simms threw up his arm to protect himself and by accident dislocated his left shoulder. He filed a workers compensation claim for this injury since he was at work and his injury was caused by a fellow employee.
The Commission said the unauthorized use of ice in a playful manner by Simms’ fellow employees was horseplay. The Commission said there was no connection between the conditions under which the work was to be performed and the assault on Simms by his fellow co-workers. Thus, the Commission said horseplay would not be compensated. In a decision by the Virginia Court of Appeals on July 28, 2009 this decision of the Commission was affirmed and Mr. Simms was denied any workers’ compensation for his injury.
Previously, Virginia had compensated employees who were injured due to horseplay. In the leading Dublin case in 1986, Virginia had ordered an employee to be compensated who was injured due to a playful shove by a fellow employee. This all changed in 2008 when the Virginia Supreme Court decided the Hilton Case. In Hilton v. Martin, 275 Va. 176, 654 S.E.2d 572 (2008), the Virginia Supreme Court had ruled: "If the assault is personal to the employee and not directed against him as an employee or because of his employment, the [resulting] injury does not arise out of employment" and thus is not eligible for workers compensation.
As a result if an employee is injured by a fellow worker and the injury is characterized as horseplay the employee has only one remedy. He can sue the fellow employee who injured him. However, this may not be much of a remedy since the fellow employee will not have liability insurance and often will have no assets. It is clear that the Hilton case marks a sea change in the way that Virginia courts will handle injuries from horseplay-related incidents. Future claimants will need to provide evidence to the court that the horseplay was the result of some employment-related action or decision that the claimant made so as to tie the horseplay to the claimant’s status as an employee.
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Jerry Lutkenhaus is a practitioner of Workers’ Compensation and Social Security in the Richmond, Virginia area for over 30 years. He was awarded an "AV" rating by Martindale-Hubbell in 2003, for other information see www.virginiadisabilitylawyer.com and www.geraldlutkenhaus.com .
Virginia no longer allows workers compensation benefits for horseplay injuries.