A Mississippi pipe fitter, who sustained five broken ribs and a spinal cord injury when he fell a distance of approximately 25 feet from the top of a gum tree during a lull in work, was appropriately denied workers’ compensation benefits, held the Court of Appeals of Mississippi recently in a split decision [see Haney v. Fabricated Pipe, Inc., 2016 Miss. App. LEXIS 722 (Nov. 8, 2016)]. The majority observed that the Commission had appropriately relied upon the four-point “Larson test” [see Larson’s Workers’ Compensation Law, § 23.01 et seq.].
The Larson Test
The Larson test suggests that whether initiation of horseplay is a deviation from the course of employment depends on:
- The extent and seriousness of the deviation;
- The completeness of the deviation (i.e., whether it was commingled with the performance of duty or involved an abandonment of duty)
- The extent to which the practice of horseplay had become an accepted part of the employment, and
- The extent to which the nature of the employment may be expected to include some such horseplay.
Deviation From the Employment
The majority concluded that substantial evidence supported the Commission’s determination that the pipefitter’s tree climbing was a deviation from the course of his employment under the Larson test for a number of reasons:
- His action was a serious enough deviation from the workday that his coworkers became alarmed and called for him to climb down.
- The deviation from employment was complete, as none of the actual duties of the job could have been “commingled” with tree climbing.
- There was no evidence that such conduct “had become an accepted part” of work at the employer’s work sites. For example, No one had ever climbed trees at work before this incident.
- Finally, although the nature of employment might invite some horseplay during lulls in the workday, the employer also had a policy against unsafe activities and horseplay and conducted safety meetings to warn against the same.
Haney—who is six feet five inches tall and weighed approximately 250 pounds at the time of his injury, climbed the tree to a height of approximately twenty-five feet. Testimony indicated that another worker climbed to a height of about 14 feet, but descended when others told them that the tree was shaking. While Haney denied being told to come down, other testimony indicated that rather than descend from the height, Haney actually began to shake the tree forcefully from side to side. The tree suddenly snapped, and Haney fell twenty-five feet to the ground.