{16} In horseplay cases, which have not often been examined in New Mexico, we have elaborated on the standard inquiry. Historically, both participants and non-participants were out of luck when it came to recovering for injuries caused by horseplay—their injuries were said not to have arisen from and in the course of employment but from some risk foreign to the employment environment. See Woods v. Asplundh Tree Expert Co. , 1992-NMCA-046, ¶ 7, 114 N.M. 162, 836 P.2d 81. This rule was then relaxed for non-participants, as courts observed the risks created by fellow workers might often constitute risks of the employment environment itself.
Most jurisdictions now allow recovery by a victim who did not participate in the horseplay which caused the injury. Peet, 492 S.W.2d at 107; Woods v. Asplundh Tree Expert Co., 114 N.M. 162, 836 P.2d 81, 83 (App. 1992), cert. denied, 113 N.M. 744, 832 P.2d 1223 (1992). Where the victim participated, courts have not reached consensus.
New Mexico has followed New York's lead, in part because "[t]he sheer number of workers' compensation cases that involve horseplay, and the variety of factual circumstances surrounding the injuries, indicate that horseplay occurs on a daily basis throughout the workplace." Woods v. Asplundh Tree Expert Co., 114 N.M. 162, 836 P.2d 81, 84-85 (1992). In New Mexico, an incident constitutes compensable horseplay either "if horseplay was a regular incident of employment" or if "horseplay was not a substantial deviation from employment, which the judge would find after considering the extent of the deviation, the completeness of the deviation, the extent to which horseplay was an accepted part of the employment, and the extent to which the nature of the employment may include some horseplay."
This is a critical finding because only if Worker was a non-participant in the horseplay that led to her injury, would Worker's injury have arisen out of and in the course of her employment and would therefore be compensable under the Workers' Compensation Act, NMSA 1978, §§ 52–1–1 to –70 (1929, as amended through 2013). See Woods v. Asplundh Tree Expert Co., 1992–NMCA–046, ¶ 7, 114 N.M. 162, 836 P.2d 81 (stating that an accident resulting from a sportive assault on a nonparticipating victim arises out of and in the course of employment); see also 2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 23.02, at 23–2 to –3 (2013) (“It is now clearly established that the non-participating victim of horseplay may recover compensation.”); Jack B. Hood, Benjamin A. Hardy, Jr., & Harold S. Lewis, Jr., Workers' Compensation and Employee Protection Laws 116–17 (5th ed.2011) (“There is little difficulty in providing coverage for a non-participant who is a victim of a horseplay injury; such an injury is viewed as being within the scope of the risk of one's employment.”).
Silva is similar to the assault cases noted above, in which the employees were trying to further the employers' business but were doing it negligently. Plaintiff finally relies on Woods v. Asplundh Tree Expert Co., 114 N.M. 162, 836 P.2d 81 (Ct.App.), cert. denied, 113 N.M. 744, 832 P.2d 1223 (1992). However, Woods does not help Plaintiff.
Indeed, this approach is not susceptible of mechanical application but rather is intended as a method of analysis to assist the Industrial Commission in consideration of future cases coming before it involving horseplay. Similarly, in Woods v. Asplundh Tree Expert Co., 114 N.M. 162, 167, 836 P.2d 81, 86 (N.M.Ct.App. 1992), the New Mexico Court of Appeals addressed the four-part test, stating, "After considering these factors, the fact-finder must determine whether the accident occurred during a substantial deviation from the course of employment." Thus, even if the horseplay was not common or condoned by the employer, the absence of the last two elements does 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.
Horseplay regularly occurs in the workplace and frequently results in compensation cases involving industrial injury claims. Woods v. Asplundh Tree Expert Co., 114 N.M. 162, 836 P.2d 81 (1992). Under the modern view, horseplay that has become a regular incident of employment, as distinguished from an isolated act, may constitute an insubstantial deviation from employment and may, therefore, not preclude an award of compensation to a participant who is injured during that conduct.
We disagree for two reasons. First, such an analysis is inconsistent with our recently decided case of Woods v. Asplundh Tree Expert Co., 114 N.M. 162, 836 P.2d 81 (Ct.App.), cert. denied, 113 N.M. 744, 832 P.2d 1223 (1992). Second, such an analysis ignores the applicable law on the "arising out of" requirement.