One of the most important things to do when evaluating a claim for a specific date of injury is to determine whether the employee had frolicked or detoured from the course and scope of employment.
When I hear words like frolic, I tend to think of the opening credits and scenes in movies like 1968’s Heidi, which rolled the introductory credits with a score of cheerful string sections and images of children playing in flower-covered fields in the background. (As a child of the 1980s, movies like this always seemed to air immediately after the weekend baseball and football games ended.)
But frolic and detour in the workers’ compensation industry is not always as cheerful as the various Heidi films over the years. Frolic arises in the context of horseplay defense, which the Workers’ Compensation Appeals Board (WCAB) defined in the case of Robert Baeza v. WCAB:
“With regard to employee horseplay, the general rule is that an injury suffered by an employee while engaged in horseplay is not compensable as not arising out of the employment. (Hodges v. Workers’ Comp. Appeals Bd. (1 978) 82 Cal.App.3d 894, 901 [43 Cal.Comp.Cases 870], citing Dalsheim v Industrial Ace. Com. (1932) 215 cal. 107, 111-114.) The rationale for denying workers’ compensation benefits is that the injury sustained while engaging in horseplay does not arise out of the employment because the acts constitute pranks or a frolic and, therefore, are not an element of the employment bargain.”
In the Baeza case, the employer raised a horseplay defense after the applicant raised a claim with the following facts:
- Applicant was walking by coworker Mr. Coda.
- Mr. Coda “bumps” the applicant’s left arm.
- Applicant turned around and shoved Mr. Coda.
- Mr. Coda shoved the applicant “real hard,” forcing Baeza to fall to the floor.
In that case, the court determined that while Mr. Coda was engaging in horseplay, the applicant was not a willing participant. The applicant testified that he got “pissed off” with his coworkers’ antics, and testified that he didn’t like his coworker Mr. Coda because the applicant thought Coda was immature.
The judge and the WCAB concluded that while Mr. Coda was engaged in horseplay, the applicant was not. What does this teach us? That you generally need two people to have a horseplay defense.
For example, the Department of Insurance recently charged an IHOP cook with fraud after obtaining surveillance video showing that he fractured his clavicle while wrestling with a coworker. The cook had claimed he had fractured his clavicle when he slipped while cleaning kitchen grates, but the video allegedly shows him wrestling with a coworker.
Going back to the Baeza case, the court summarized a number of examples of horseplay:
Examples of horseplay include hotel bus boys throwing hard rolls at each other (Pacific Emp. Ins. Co. v. Industrial Acc. Corn. (1945) 26 Cal.App.2d 286 [10 Cal.Comp.Cases 89]), ranch trainees chasing each other around a bunkhouse (Argonaut Ins. Co. v. Workers’ Comp. Appeals Bd. (1967) 247 Cal.App.2d 669, 672), a tenant of company housing diving off a balcony into a swimming pool on a bet (Leffler v. Workers’ Comp. Appeals Bd. (1981) 124 Cal.App.3d 739, 741-742 [46 Cal.Comp.Cases 1135]), and workplace sparring. (Hodges, supra, 82 Cal.App.3d at pp. 898-899.)
Now earlier we mentioned a “detour,” which pertains more to traveling outside the scope of employment. This term typically arises in cases where:
- The employer asks employee to travel from point A to point B, with the expectation of returning back to point A.
- Somewhere along the way between A and B, the applicant decides to go somewhere that is not work-related and does not benefit the employer, and gets injured while doing that.
For instance, this set of facts occurred in the panel decision of Pamela Mendes v. County of Los Angeles (PSI), where the judge determined that the applicant’s car accident was nonindustrial because she was injured while driving to meet her husband for lunch. The applicant was working as a communications systems analyst for the county, and this required her to go to various county government locations and presumably help resolve IT issues.
After her last appointment ended, the applicant testified that it was her intent to return to her office in Downey. However, the applicant apparently missed her exit to turn onto the 605 freeway, and continued on Interstate 5 for another 20 miles, where she exited I-5 and was involved in an auto accident.
The applicant testified to a somewhat confusing myriad of freeway strategies that brings this Saturday Night Live sketch “The Californians” to mind.
Meanwhile, the defense attorney used MapQuest to prove that the applicant went 20 miles out of her route, which didn’t quite jive with her theory that she missed her off-ramp to get onto the 605 freeway. A defense witness also testified that the applicant’s husband had called, stating that the applicant was on her way to meet him for lunch when she was involved in an auto accident, and was being taken to a hospital in Anaheim.
The judge determined that the applicant’s 20-mile detour had substantially deviated from the course of employment, and that the applicant failed to meet her burden of proof to show that she was performing a service to benefit the employer arising out of and in the course of employment.
I can think of several other cases I’ve heard about that resulted in minimal settlements with similar facts as the Mendes case. The key to a successful defense in all of those “detour” cases appears to be:
- A strong employer-level investigation, where the defense attorney identifies any and all helpful witnesses, and of course, witness testimony.
- GPS or map evidence of the routes. Or if the case involves airfare, the itinerary. (Tip: It’s good for businesses to either schedule the travel, or to at least keep a copy of the itinerary on file.)
- Clear evidence of the employer’s stated purpose for having the employee at the remote location, which helps call into question why the detour did not serve the employer’s interests.
Whether it’s a horseplay or detour defense, these types of cases always turn on the individual facts, so identifying any and every little fact is useful. Talk to your witnesses, and see what information they can turn up.
Another underlying theme in all of the cases mentioned here is the importance of witness credibility. In Baeza, the judge felt that the applicant credibly testified that he was not a willing participant in his coworker’s horseplay. And in Mendes, the judge was unimpressed by the applicant’s The Californians-esque freeway explanation. And in the IHOP’s cook’s case, while it is still pending, my educated guess is that surveillance video appears to totally undermine his credibility.
If you’ve got questions about whether a workers’ compensation claim is AOE/COE, please feel free to contact us at the Law Offices of Bradford & Barthel, LLP. We will be happy to help!
John P. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he heads the firm’s Sports Law Division and is the director of the firm’s Editorial Board. Mr. Kamin previously worked as a journalist, where he reported on work-related injuries in all 50 states. Feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
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