Applying the four Larson factors to determine whether an act of horseplay was or was not a substantial deviation from the employment [see Larson’s Workers’ Compensation Law, § 23.01], the Supreme Court of South Dakota recently reversed a decision of a circuit court that had affirmed a denial by the state’s Department of Labor of workers’ compensation benefits to a worker who sustained a broken leg when he attempted to jump over a trench while running through a construction site [Petrik v. JJ Concrete, Inc., 2015 S.D. 39 (June 3, 2015)]. Acknowledging that the facts of the case presented a close question on whether the employee’s horseplay was a substantial deviation, the Court emphasized that where, as in the instant case, there was an enforced lull in the work, there was in a real sense no work to abandon.
Sitting Around on a Hot Day
Petrik worked as a concrete laborer—pinning footings, placing stake lines, and setting foundation forms at job sites. The employment involved idle times when he and his co-workers were required to wait for other work to be completed before they could continue their own. It was particularly typical for the workers to wait for a concrete truck to arrive. During these breaks in work, Petrik and the others were expected to clean the site, put away tools, and engage in miscellaneous duties. Petrik testified that he and others often played jokes and tricks on each other during these lulls in the work.
On the day he was injured, Petrik and others had completed all their necessary work and were waiting for a concrete truck to arrive to pour concrete. It was a hot day and some of them sat in one of the employer’s air-conditioned trucks. Petrik, wanting to sit in the truck to cool off, went to the truck and told a co-worker, Cole, that one of the workers on the far side of the work site needed to talk to him. When Cole left the truck, Petrik took his seat inside the cool cabin. After five minutes or so, Petrik left the truck. When he saw Cole, Petrik started running and Cole pursued. During the short chase, Petrik attempted to jump a five-foot wide trench, landed awkwardly, and broke his ankle. Cole took Petrik to the hospital.
Department of Labor’s Decision
When Petrik filed a workers’ compensation claim, the employer and insurer denied compensability, contending in relevant part that the injury did not arise out of and in the course of the employment, that the employer prohibited horseplay by employees, and that Petrik’s act of running on a dangerous job site in no way furthered the business interests of the employer. Applying the four Larson tests, the Department found that Petrik’s injury arose out of the employment, but did not occur in the course of that employment. The circuit court affirmed.
The Four Larson Factors
The Court observed that in an earlier case, Phillips v. John Morrell & Co., 484 N.W.2d 527 (S.D. 1992), the Court had adopted Larson’s four factors [Larson, § 23.01] to consider whether initiation of horseplay was a deviation from the course of employment:
- 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.
The Court stressed that not all four factors needed to be present to allow a finding that the horseplay was in the course of the employment.
Supreme Court’s Reasoning
The Court next observed that the instant case differed from Phillips, since Petrik had sustained his injuries during a lull in the work and Phillips had not. The first factor, the extent and seriousness of the deviation, had to be judged in light of the fact that Petrik’s injury occurred in a period of idleness. In a true sense, when there are no duties to perform, there is no work to abandon. The court, again quoting Larson, stressed that it would be going much too far “to say that no horseplay enterprise undertaken during enforced idleness constitutes a deviation”—it was simply a factor relevant to the extent of the deviation [Larson, § 23.07].
Considering that first factor, and the others, the Court acknowledged that running on the job site was against the employer’s safety rules and Petrik testified he knew it was such a violation. Still, the evidence and testimony suggested Petrik’s decision to run had been an impulsive one. Bearing in mind the no-fault nature of workers’ compensation law, the Court indicated Petrik’s impulsive running and jumping during a definite lull in the work, was not such a deviation as to be substantial. The Court also noted that while the Department had based its decision in some large part on the fact that Petrik and his co-workers were required to do heavy lifting and manual labor and, accordingly, that they were ordinarily motivated to save their energy for when they had to expend it, that determination was not borne out by the record.
The Court concluded that, in hindsight, running on the job site “was misguided, but Petrik’s act did not come from a deliberate or conscious excursion and did not require him to abandon any job duties.”