A farmhand who fell when he was grabbed from behind by a co-worker cannot collect workers’ compensation for a knee injury, the Virginia Workers’ Compensation Commission ruled Sept. 1.
The deputy commissioner awarded benefits to Brandon Phipps, 22, who worked for a turfgrass farm in Franklin. But the full commission reversed, and said Phipps’ injury did not arise out of his employment, since it happened while a co-worker was “just horsing around.”
A commissioner who dissented warned the majority’s decision would leave the employer vulnerable to a civil action by the farmhand.
In explaining the injury, Phipps said he was trying to jump-start a tractor when the co-worker grabbed him and Phipps lost his balance. “[W]e kind of fell to the side and my leg folded up and popped,” Phipps testified. A physician diagnosed “a rather severe knee injury with MCL tear,” and later recommended arthroscopic surgery.
The doctor released Phipps to a sedentary job, which his employer could not provide. Phipps was released to full duty and returned to work several months later.
If an assault is personal to an employee, a resulting injury does not arise out of employment, the commission said, drawing on the Richmond Newspapers “goosing” case decided by the Supreme Court of Virginia in 1995. In Richmond Newspapers Inc. v. Hazelwood, the high court upheld a $140,000 jury award to a newspaper pressman who was “goosed” by his supervisor, as the pressman had no workers’ comp remedy.
The Supreme Court said earlier this year it had not “scuttled” the horseplay rule, and in Simms v. Ruby Tuesday, it sent a claim back to the commission to consider whether a restaurant employee could collect comp for dislocating his shoulder when he tried to shield himself from ice thrown by co-workers.
Phipps’ claim was more like Hazelwood’s claim than Simms’, the majority commission opinion said. Simms did not change the law announced in Hazelwood, the majority wrote. If the assault is personal to the employee and not directed at him as an employee or because of the employment, it does not arise out of the employment.
In this context, a “hug is no different than a goose,” the commission said.
Commissioner Virginia Diamond dissented, saying Phipps was “an innocent victim of horseplay” who was entitled to medical benefits for treatment of his knee. Diamond cited Simms’ pronouncement that “workplace horseplay is an actual risk of the workplace …
“This decision means that the employer is now open to legal action against it in civil court since the Majority has concluded that the claimant’s injuries did not arise out of his employment,” Diamond warned.
By Deborah Elkins