Opinion
W.C. No. 4-622-484.
June 22, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant sustained a compensable injury. The respondents contend the ALJ erred in determining that the claimant's injuries arose out of and in the course of his employment. To the contrary, the respondents contend the ALJ's findings compel the conclusion the claimant was injured during noncompensable horseplay. We affirm.
The ALJ's findings may be summarized as follows. The claimant was employed in a bakery and worked in and around a cooler. His duties involved moving bread racks. The floor of the bakery would become greasy, wet and slippery, and the employer supplied the workers with special shoes to counteract these conditions. On July 27, 2004, the day before the injury, the claimant complained to the facilities manager that his shoes were slippery.
On July 28, 2004, approximately ten feet from the cooler, a coworker (Hill) observed the claimant walking in Hill's direction. The claimant had a "smirk" on his face and "lifted his right leg as if he were going to kick" Hill. The ALJ found the claimant was "far away enough" that he could not have struck Hill, but the claimant's "left leg slipped out from under him and he fell." As a result, the claimant sustained injuries including a wrist sprain and hernia.
The ALJ found no persuasive evidence that "horseplay" was an accepted practice at the bakery, and there was no evidence of prior horseplay involving the claimant and Hill. Nevertheless, the ALJ concluded the claimant's injuries arose out of and in the course of employment. Specifically, the ALJ determined the claimant's injuries were sustained because of the "combination of the slippery floor and shoes and his actions in attempting to kick toward Mr. Hill." The ALJ concluded the claimant's actions did not involve "any extensive or serious deviation from" his duties and described the deviations as "incomplete." Therefore, the ALJ held that the injuries are compensable under principles announced in Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995).
On review the respondents contend the ALJ erred as a matter of law in applying the test set forth in Lori's Family Dining. Analogizing this case to Kater v. Industrial Commission, 728 P.2d 746 (Colo.App. 1986), the respondents contend the findings compel the conclusion that the claimant engaged in a substantial deviation from his employment for the claimant's sole benefit. The respondents further argue that because the ALJ found the horseplay was an isolated incident rather than a regular part of the claimant's employment the claimant failed to establish the third and fourth prongs of the Lori's Family Dining test. We are not persuaded.
At the time of the injury the claimant must be performing service "arising out of and in the course of" the employment. Section 8-41-301(1)(b), C.R.S. 2004. An injury "arises out of" employment if it has its origins in the employee's work-related functions so that the injury may be considered part of the employee's service to the employer. An injury is in the "course of employment" if it occurs within the time and place limits of the employment and during an activity having some connection to the employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991). However, the arising out of test does not require that the claimant's activity provide a direct benefit to the employer or constitute a duty of employment so long as the actions are reasonably incidental to the circumstances of the employment. Similarly, the course of employment test does not necessarily require that the claimant be engaged in work or on the clock if the claimant's activity is a normal "incident" of the employment and not a substantial deviation. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Ventura v. Albertson's, Inc., 856 P.2d 35 (Colo.App. 1992).
Consistent with these principles, the Court of Appeals has adopted a test to determine whether an injury caused by "horseplay" arises out of employment. In Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, supra, the court stated that an analysis whether initiation of horseplay constitutes a "deviation" from the employment requires consideration of the following factors:
(1) the extent and seriousness of the deviation; (2) the completeness of the deviation, i.e., whether it was commingled with the performance of a duty or involved an abandonment of duty; (3) the extent to which the practice of horseplay had become an accepted part of the employment; and (4) the extent to which the nature of the employment may be expected to include some horseplay. 907 P.2d at 718.
The Lori's Family Dining court held that determination of the issue is one of fact for the ALJ and, therefore, the ALJ's resolution must be upheld if supported by substantial evidence in the record. Id. at 718, § 8-43-301(8), C.R.S. 2004.
The test set forth in Lori's Family Dining is the same compensability test advocated by Professor Larson in his treatise. However, Professor Larson considers the issue of horseplay to be more concerned with the "course of employment" requirement than the "arising out of employment" element. 2 Larson's Workers' Compensation Law, § 23.01. He explains that if the controversy concerns a course of conduct deliberately undertaken by the claimant the issue concerns the course of employment. However, if the issue involves the "nature of the source of injury to the claimant there is primarily a question" of "arising out of employment." Under Larson's approach horseplay is analyzed under general principles which govern whether a claimant has deviated from employment so substantially as to remove the claimant from the course of employment. Professor Larson cites the Lori's Family Dining case as one demonstrating a minor deviation insufficient to remove the claimant from the course of employment. 2 Larson's Workers' Compensation Law, § 23.07[1], n. 6.
In our view, it does not matter whether the "horseplay doctrine" best fits under the "arising out of" causation category or the "course of employment" time and place category. Whichever theoretical framework is applied, the issue remains whether the claimant's conduct constitutes such a deviation from the circumstances and conditions of the employment that the claimant stepped aside from his job and was performing activity for his sole benefit. Kater v. Industrial Claim Appeals Office, supra. The Lori's Family Dining test is drawn from Professor Larson's analysis and serves to satisfy both the causation requirement and the time and place requirement. As the Lori's Family Dining court stated, "horseplay regularly occurs in the workplace and frequently results in compensation cases."
Because these issues are factual in nature we must review them under the substantial evidence standard. Section 8-443-301(8). Thus, we must consider the evidence in a light most favorable to the prevailing party and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The respondents' contention notwithstanding, the ALJ was not required to conclude under the first two prongs of the Lori's Family Dining test that the claimant engaged in a substantial deviation from his employment. The claimant's "horseplay" occurred within ten feet of his assigned work station at the cooler, and was of very brief duration. Thus, the evidence and findings support the ALJ's inference that there was not a complete abandonment of duty. Further, the claimant's action was apparently not intended to inflict actual injury or even contact with the his fellow employee; therefore, the ALJ need not have concluded the deviation was "serious." Indeed, the claimant's actions here could be described as analogous to a "playful jab in the ribs" which Professor Larson suggests does not involve a substantial or serious deviation. Moreover, the claimant's injuries were caused at least in part by the conditions of the employment which required him to wear slippery shoes on a wet floor.
Viewed in this light this claim is, as the ALJ held, distinguishable from Kater v. Industrial Commission, supra. There the claimant took an unauthorized break and demonstrated a dance step. Thus, in Kater the claimant's actions were of more than momentary duration and supported an inference that the claimant had completely abandoned her job to perform dance steps for personal reasons.
Further, the ALJ's order is not erroneous because the ALJ found that horseplay was not a regular or accepted part of the claimant's employment. Nothing in the Lori's Family Dining decision suggests that the claimant must prove the existence of every element of the test in order to establish a compensable claim, or that any particular element is decisive. See Wallace v. Personnel Pool, Inc., W.C. No. 4-455-463 (May 8, 2001). Indeed, the third and fourth prongs of the test may be viewed as specific methods of proving that a claimant's actions became part of the claimant's employment. However, the absence of those elements need not rule out the possibility that, under the first two elements, the claimant engaged in such minor "horseplay" that it did not fall outside the scope of the employment even though the horseplay was not common or condoned by the employer.
IT IS THEREFORE ORDERED that the ALJ's order dated January 28, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Robert M. Socolofsky
Julio Medina, Denver, CO, Panera Bread, LLC, Brighton, CO, Kristin Battaglia, Sentry Insurance, Stevens Point, WI, John A. Sbarbaro, Esq., Denver, CO, (For Claimant).
Ted A. Krumreich, Esq., Denver, CO, (For Respondents).