You Be the Judge

Is Fall During Horseplay Compensable?

A man working outdoors injured himself falling from a tree. The court was left to decide whether the injury fell within the scope of his employment.
By: | January 9, 2017 • 3 min read

A pipe fitter for Fabricated Pipe worked to assemble pipe parts into larger systems based on isometric drawings. He also occasionally assisted coworkers with moving pipe, cleaning the work yard, or loading and unloading trucks.

The man and some coworkers were cleaning up the work yard. They took a break, and the pipe fitters sat in the shade of a tree and began sending text messages. The coworkers were talking near a water cooler about six feet away.

The pipe fitter said that some coworkers started throwing clumps of dirt at him to aggravate him. The pipe fitters walked to the water cooler, and the men continued talking. Their conversation turned to the subject of climbing trees and about how they climbed trees as children.

The pipe fitter said that two coworkers started to climb the tree. He said a coworker told him to climb the tree. The pipe fitter climbed the tree to a height of approximately 25 feet.

A coworker said that they yelled for the pipe fitter to come down because the tree was shaking, but the pipe fitter denied hearing anyone tell him to come down. The pipe fitter began to shake the tree from side to side. The tree snapped, and the pipe fitter fell 25 feet to the ground.

The pipe fitter was diagnosed with five broke ribs and a spinal cord injury. He sought workers’ compensation benefits. The administrative judge found that he suffered a compensable injury.

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The Workers’ Compensation Commission reversed, finding that the pipe fitter’s fall and injuries did not occur within the scope and course of employment. The pipe fitter appealed.

Was the commission correct in finding that the pipe fitter’s injury was not compensable?

  • A. No. The pipe fitter’s tree climbing was mere horseplay during a lull in his work duties, not a deviation from his employment.
  • B. Yes. The pipe fitter deviated from the course of employment when he climbed the tree.
  • C. No. The nature of the pipe fitter’s employment invited some horseplay during lulls in the workday.

How the Court Ruled

A is incorrect. The court found that the pipe fitter’s tree climbing was a deviation from the course of his employment.

C is incorrect. The court found that although the nature of the pipe fitter’s employment may have invited some horseplay during lulls in the workday, Fabricated Pipe also had a policy against unsafe activities and horseplay.

B is correct. In Haney v. Fabricated Pipe, Inc., et al., No. 2015-WC-01321-COA (Miss. Ct. App. 11/08/16), the Mississippi Court of Appeals held that the pipe fitter’s injury was not within the course and scope of his employment.

The court held that the pipe fitter’s tree climbing was a serious and complete deviation from the course of his employment. The court explained that his action was serious enough that his coworkers became alarmed and called for him to climb down.

Also, the deviation was complete, as none of his duties could have been “commingled” with tree climbing. There was no evidence that such conduct had been an accepted part of the employment.

The court pointed out that 25 feet in the air the pipe fitter was not “present and ready” to further Fabricated Pipe’s business. The court also noted that falling out of a tree was not a risk inherent to the pipe fitter’s employment.

Editor’s note: This feature is not intended as instructional material nor to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

Risk Management

The Profession

After 20 years in the business, Navy Pier’s Director of Risk Management values her relationships in the industry more than ever.
By: | June 1, 2017 • 4 min read

R&I: What was your first job?

Working at Dominick’s Finer Foods bagging groceries. Shortly after I was hired, I was promoted to [cashier] and then to a management position. It taught me great responsibility and it helped me develop the leadership skills I still carry today.

R&I: How did you come to work in risk management?

While working for Hyatt Regency McCormick Place Hotel, one of my responsibilities was to oversee the administration of claims. This led to a business relationship with the director of risk management of the organization who actually owned the property. Ultimately, a position became available in her department and the rest is history.

R&I: What is the risk management community doing right?

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The risk management community is doing a phenomenal job in professional development and creating great opportunities for risk managers to network. The development of relationships in this industry is vitally important and by providing opportunities for risk managers to come together and speak about their experiences and challenges is what enables many of us to be able to do our jobs even more effectively.

R&I: What could the risk management community be doing a better job of?

Attracting, educating and retaining young talent. There is this preconceived notion that the insurance industry and risk management are boring and there could be nothing further from the truth.

R&I: What’s been the biggest change in the risk management and insurance industry since you’ve been in it?

In my 20 years in the industry, the biggest change in risk management and the insurance industry are the various types of risk we look to insure against. Many risks that exist today were not even on our radar 20 years ago.

Gina Kirchner, director of risk management, Navy Pier Inc.

R&I: What insurance carrier do you have the highest opinion of?

FM Global. They have been our property carrier for a great number of years and in my opinion are the best in the business.

R&I: Are you optimistic about the US economy or pessimistic and why?

I am optimistic that policies will be put in place with the new administration that will be good for the economy and business.

R&I: What emerging commercial risk most concerns you?

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The commercial risks that are of most concern to me are cyber risks, business interruption, and any form of a health epidemic on a global scale. We are dealing with new exposures and new risks that we are truly not ready for.

R&I: Who is your mentor and why?

My mother has played a significant role in shaping my ideals and values. She truly instilled a very strong work ethic in me. However, there are many men and women in business who have mentored me and have had a significant impact on me and my career as well.

R&I: What have you accomplished that you are proudest of?

I am most proud of making the decision a couple of years ago to return to school and obtain my [MBA]. It took a lot of prayer, dedication and determination to accomplish this while still working a full time job, being involved in my church, studying abroad and maintaining a household.

R&I: What is your favorite book or movie?

“Heaven Is For Real” by Todd Burpo and Lynn Vincent. I loved the book and the movie.

R&I: What’s the best restaurant you’ve ever eaten at?

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A French restaurant in Paris, France named Les Noces de Jeannette Restaurant à Paris. It was the most amazing food and brings back such great memories.

R&I: What is the most unusual/interesting place you have ever visited?

Israel. My husband and I just returned a few days ago and spent time in Jerusalem, Nazareth, Jericho and Jordan. It was an absolutely amazing experience. We did everything from riding camels to taking boat rides on the Sea of Galilee to attending concerts sitting on the Temple steps. The trip was absolutely life changing.

R&I: What is the riskiest activity you ever engaged in?

Many, many years ago … I went parasailing in the Caribbean. I had a great experience and didn’t think about the risk at the time because I was young, single and free. Looking back, I don’t know that I would make the same decision today.

R&I: What about this work do you find the most fulfilling or rewarding?

I would have to say the relationships and partnerships I have developed with insurance carriers, brokers and other professionals in the industry. To have wonderful working relationships with such a vast array of talented individuals who are so knowledgeable and to have some of those relationships develop into true friendships is very rewarding.

R&I: What do your friends and family think you do?

My friends and family have a general idea that my position involves claims and insurance. However, I don’t think they fully understand the magnitude of my responsibilities and the direct impact it has on my organization, which experiences more than 9 million visitors a year.




Katie Siegel is a staff writer at Risk & Insurance®. She can be reached at [email protected]