STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


ALAN STEINFELDT, Applicant

ONEIDA TRIBE OF INDIANS, Employer

NATIONAL UNION FIRE INS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96049444


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed: June 25, 1998
steinfa . wsd : 101 : 8 ND 3.13

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The issue in this case is whether the applicant sustained a compensable injury or, more technically, whether at the time of the injury he was performing services growing out of and incidental to employment. A worker injured on his employer's premises during normal working hours while performing his normal duties is performing services growing out of employment unless engaged in a deviation. (1) Whether an injury sustained by a participant in horseplay grows out of employment (and covered) or a substantial deviation from employment (and not covered) is a question that must be resolved on a case by case basis by applying criteria set out by the Wisconsin supreme court.

Whether a particular act of horseplay is insubstantial and not a deviation from employment depends on:

"(1) The extent and seriousness of the deviation, (2) the completeness of the deviation (i.e., whether it was commingled with the performance of 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 such horseplay."

2 Larson, Workers Compensation Law, 23.00 (1997); Nigbor v. DILHR, 120 Wis. 2d 375, 384-85 (1984); and Bruns Volkswagen, Inc., v. DILHR, 110 Wis. 2d 319, 324-325 (1982). The Nigbor and Bruns Volkswagen cases themselves provide fact situations helpful in analyzing the application of the Larson test.

In Nigbor, Mr. Nigbor placed his head between an overhead plate and an empty sand mold box in a rapid squeeze molding machine to amuse his coworkers. When he gestured to his colleagues so they could see him in this position, he accidentally started the machine causing his fatal injuries when the machine cycled. The ALJ and commission found that Nigbor was not performing services growing out of and incidental to employment at the time of his death, and denied benefits.

The supreme court affirmed, finding that LIRC acted reasonably. In considering the first factor, the seriousness of the deviation, the supreme rejected the contention that the fatal consequence alone proved the seriousness of the deviation. Instead, the court relied on the fact that given Nigbor's familiarity with the machine and experience, he was aware of the risk he placed himself in and intentionally placed himself in a position of ultrahazardous risk. The knowing assumption of the risk, not simply the consequence alone, supported the finding of a substantial deviation.

The supreme court also noted that, while Nigbor's accident or death occurred while at his work station, he necessarily had to completely stop his duties to engage in the conduct leading to his death and therefore was engaged in a complete deviation. The court went on to note that while minor nonhazardous horseplay, like hiding tools and greasing shovel handles, occurred in the past, the employer discouraged such pranks. Moreover, even if nonhazardous horseplay had been condoned in some degree by the employer, that did not prove Nigbor's ultrahazardous action had become an accepted part of employment. Finally, the court noted that while the employer had reason to expect that nonhazardous horseplay could be expected during periods of overtime, such as Nigbor was working when killed, the employer had no expectation that Nigbor would engage in the type of ultrahazardous horseplay he was engaged in when killed.

By contrast, Bruns Volkswagen involved a situation where Baumgartner, an auto repair shop foreman, began wrestling with a mechanic while waiting at a parts counter. Everyone agreed that the wresting was mere horseplay and "free of enmity;" the record also indicated that "[d]ue to the nature of the work and the ages of the employes, horseplay . . . was fairly common in the shop." (2) Baumgartner injured his knee in the wrestling incident.

In Bruns Volkswagen, the ALJ and the commission found that the wrestling constituted an insubstantial deviation from Baumgartner's employment, given the amount of horseplay that had gone on without discipline in the past. Accordingly, the injury was found compensable.

The court of appeals affirmed, citing the Larson test. The court also noted that the wrestling was of short duration, impulsive, and occurred during a natural lull for the employer. It also noted that horseplay was fairly common, and had gone undisciplined. In sum, the court of appeals believed the wrestling/horseplay was insubstantial and did not constitute a noncompensable deviation.

The case now before the commission is much closer on the facts to Bruns Volkswagen than Nigbor. The joking and shoving between the applicant's supervisor, Jennifer House, and his coworkers is more like wrestling than putting one's head in a press. In addition, it is clear the employer tolerated exactly the same kind of horseplay in the past; supervisor House had participated in it previously with her female subordinates. Moreover, supervisor House's testimony indicates that, like Bruns Volkswagen, this seems to be the type of work situation where horseplay is likely given the age of the workers and the nature of the confined workplace. Further, the incident seems innocent and impulsive, especially given Ms. House's admission her conduct could be viewed as egging the applicant on. Finally, while the bantering had been going on for twenty minutes, the applicant's part in the horseplay was of a relatively brief duration.

Turning also to the specific criteria listed by Professor Larson and adopted by the courts, the horseplay engaged in by the applicant was not the type of inherently dangerous or ultrahazardous activity which the Nigbor court relied on to find a serious deviation. Nor, given the fact that the bantering and pushing was going on intermittently during work, can this be viewed as a complete deviation. Further, the fact that supervisor House did not discourage horseplay but engaged in it herself, and even testified she expected it, tends to decide the third and fourth Larson factors in the applicant's favor.

On appeal, the respondent concedes that ALJ Doody correctly stated the law, but points to the Nigbor court's ruling that the seriousness of the deviation is determined by analyzing the likelihood of harm from the perspective of the injured party. This, of course, is accurate. However, the fact remains that the applicant's conduct here does not come close to Mr. Nigbor's conduct which the court considered "ultrahazardous."

The respondent also argues that the applicant did not suffer an injury from an accident. Because an injury was foreseeable when the applicant asked Ms. House to strike him in the stomach, the respondent suggests, it was not accidental. The applicant here, by inviting a blow to the stomach may not have been acting prudently, but that does not mean Ms. House's blow to the groin was not compensable. The commission acknowledges that the court has defined an "accident" to be a fortuitous event unexpected and unforeseen by the injured person," Kaiser Lumber Co. v. Industrial Commission, 181 Wis. 513 (1923). However, injuries which result from a worker's negligence remain compensable. Tews Lime & Cement Co. v. ILHR Department, 38 Wis. 2d 665, 673-74 (1968). The facts here simply cannot be viewed as an intentional self-inflicted injury of the type excluded from coverage under Wis. Stat. 102.03(1)(d).

The respondent next argues that the applicant deviated from his employment, as a matter of law, by assaulting Ms. House when he nudged her. However, the civil jury instruction cited by the respondent in support of this argument states that assault requires an attempt to either physically harm someone or put someone in fear of physical harm. Ms. House's testimony indicates that she was not harmed, that she was not afraid of being harmed, and that the applicant did not intend to harm her.

For that reason, this case is simply not like Vollmer v. Industrial Commission, 254 Wis. 2d 162 (1948), where a worker was injured after provoking an altercation with his supervisor. The Vollmer court applied something akin to an "aggressor defense" which the commission has applied consistently since to deny compensation to workers who are injured after starting fights. See Mary Lou Campbell v. LIRC, case no. 97-CV-000837 (Wis. Cir. Ct., Milwaukee County, January 23, 1998.) However, this case does not present an aggressor, but rather innocent physical contact which, like the situation in Bruns Volkswagen, was devoid of enmity.

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. This is a strange case but I believe that the employe deviated from his work when he kept insisting that his supervisor should hit him in the stomach even after she had told him to "go back to work." The applicant then touched the supervisor who involuntarily reacted by swinging her arm backwards which hit the applicant in the groin.

The majority and the administrative law judge focused on the poor supervision and the fact that the supervisor participated in the earlier horseplay. Part of the problem is that the early physical horseplay was between female friends and the applicant was not involved. The injury came about when the supervisor had already told the employe to get back to work so that while she condoned some horseplay she had told him to get back to work prior to the injury.

While I agree with the majority that the supervisor should not have allowed any physical horseplay, I do not believe that the applicant was misled when she told him to go back to work. The applicant's testimony seemed to be less credible than the supervisor's especially since the applicant's recollection is vague. He does not adequately explain why the supervisor hit him with a backward movement. If the supervisor was intending to hit him as he had asked her to do she would have done it facing him. I believed the supervisor's testimony that she was not going to hit him and he should go back to work and that he replied "I'll get you to hit me."

The applicant was new to this work area. I find this a difficult case because while the women who knew each other and were friends accepted the shoving, I think there is a line based on both the factors of sex and friendship. If his co-workers were all males or if they had all been long time friends, I might have reached a different result. I would reverse and find that the employe deviated from the course of his employment when he did not go back to work when told to and then he touched the supervisor causing her to react and hit him. He had intended for her to hit him. He had just assumed it would be in a different spot. For these reasons, I dissent.

Pamela I. Anderson, Commissioner

cc: ATTORNEY WILLIAM R SACHSE JR
PETERSON JOHNSON & MURRAY SC

ATTORNEY CHARLES M SOULE
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC


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Footnotes:

(1)( Back ) Bruns Volkswagen, infra, at 110 Wis. 2d 322.

(2)( Back ) Bruns Volkswagen, at 110 Wis. 2d 321.