Pursuant to Texas Labor Code Section 406.032(2), a carrier is not liable if the employee’s horseplay was a producing cause of the injury. Thus, when an employee willfully engages in horseplay and suffers an injury as a result, that injury is not compensable. It is important to note that unlike the intoxication defense, for instance, in order for a carrier to escape liability for compensation based on a horseplay defense, it must be demonstrated that the act constituting horseplay resulted in the injury. And if the injury results from horseplay engaged in by fellow employees in which the claimant did not participate, the injury is compensable if it meets other requirements for compensability. It is also significant that the statute says specifically that the horseplay only has to be “a” producing cause of injury and not “the” producing cause.
In the infamous “Black Foot Salute” case, the claimant and his co-employee were of Black Foot Indian descent and developed the “Black Foot Salute” which included the act of lifting one foot. The hearing officer in that case found that the claimant was engaged in the salute when he slipped and fell and that he was therefore engaged in horseplay. The Appeals Panel affirmed the denial of benefits, stating that the carrier was not liable because the employee’s horseplay was a producing cause of the injury. Texas Workers’ Compensation Appeals Panel Decision No. 94779.
In Appeals Panel Decision No. 9512725, the claimant was a bus boy in a restaurant who slipped and fell after dropping off some dishes in the dishwashing area. It was determined that he was involved in horseplay at the time of his accident based on evidence that he was dancing or moving to music at the time of his fall.
Typically, when the carrier introduces evidence of horseplay, the burden of proof then shifts to the claimant to prove that he or she was not engaged in horseplay. Appeals Panel Decision No.92536. This shifting of the burden of proof, however, does not occur if an injured worker is a victim of horseplay, as opposed to a voluntary participant in horseplay. The carrier, in fact, has the burden of proving that a claimant is an active participant in horseplay rather than being a passive victim. Texas Workers’ Compensation Appeals Panel Decision No. 000788.
Just because the claimant’s supervisor is present when the horseplay occurs, does not mean that a carrier cannot raise the horseplay defense. In Appeals Panel Decision No. 002191, the claimant was injured during an arm wrestling contest clearly in the presence of his supervisor. The hearing officer determined that the carrier was relieved of liability under the horseplay exception and the Appeals Panel affirmed.
The Appeals Panel has held that horseplay would be considered a producing cause of an injury where there was an unbroken chain of events showing that horseplay was a producing cause and where the horseplay did not cease before the injury, where the claimant participated in the horseplay, and where the horseplay was an active and not an outside force causing the injury. Texas Workers’ Compensation Appeals Panel Decision No. 91029.
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