Can Employer Deny Comp for Broken Ankle Caused by Horseplay?

When a childish chase leads to broken bones, the court must decide whether the injury is covered by workers' comp.
By: | January 11, 2019

A booking specialist for the Curry County Adult Detention Center worked the night shift. None of her direct supervisors worked the night shift, so a supervisory sergeant was the supervisory employee for the facility.

The specialist and sergeant established a history of interacting in a “lighthearted” way when downtime arose. They had previously attempted to mark each other with markers and spray each other with bug spray. The specialist said that a lot of people engaged in horseplay.

On the day of the accident, the specialist was sitting in the booking area. She and the sergeant began to mark each other with markers as they had in the past. The sergeant withdrew, stepped into a bathroom, and returned with a can of bug spray. He pretended to spray the specialist and then retreated out of the booking area.

The specialist ran after him, but she tripped on a staircase and fell, sustaining a broken ankle and fibula. She reported the accident to the detention center and sought workers’ compensation benefits. She initially gave a fabricated account of the events, but a surveillance video showed the horseplay.

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Courts use two tests to determine whether horseplay is compensable. A worker can prevail if she can satisfy either one. The first test asks whether the activity giving rise to the injury had become a result incident of the employment rather than an isolated act. The second evaluates whether the activity giving rise to the injury amounts to a substantial deviation from employment.

The workers’ compensation judge found that the specialist had engaged in horseplay, but her injury was compensable. The detention center appealed.

Did the WCJ properly determine that the specialist’s injury was compensable?

  • A. Yes. The activity giving rise to the injury constituted a regular incident of employment as opposed to an isolated act.
  • B. No. The detention center was not aware of the horseplay.
  • C. No. The injury amounted to a substantial deviation from the specialist’s employment.

How the Court Ruled

B is incorrect. The court found that the evidence showed that horseplay was a regular incident of employment at the detention center. The specialist and sergeant had previously engaged in horseplay, and the detention center had never counseled them regarding the horseplay.

C is incorrect. The court found that any deviation was “narrow in scope and neither grave nor complete.” The specialist said that there was frequent downtime at work, and the horseplay often arose during the downtime. The record showed that horseplay had become an expected part of the environment.

A is correct. In Motes v. Curry County Adult Detention Center, et al., No. A-1-CA-36048 (N.M. Ct. App. 11/28/18), the New Mexico Court of Appeals held that the specialist’s injury arose out of and in the course of employment, and she was entitled to benefits.

The court found that the specialist satisfied both tests and explained that her injury arose out of and in the course of her employment. The specialist and sergeant had previously engaged in horseplay, and the detention center did nothing to curtail repeated horseplay. The court said that the activity was reasonably foreseeable.

Editor’s note: This feature is not intended as instructional material or 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]

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