PAMELA HASSAN, Applicant

WAL MART STORES INC, Employer

ILLINOIS NATIONAL INS CO, Insurer

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.

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

Dated and mailed July 13, 2004
hassapa . wsd : 175 : 9   ND § 3.13

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant sustained an accidental left elbow and left arm injury on January 29, 2003, arising out of her employment while performing services incidental to her employment. The employer states the administrative law judge erred in finding that the applicant's action of kicking out toward a co-worker resulting in her fall and injury was at most an impulsive momentary and insubstantial deviation that was not sufficient to remove the applicant from the course of her employment. The employer states that the applicant deviated from her employment in two ways, with an act of horseplay, and in a violation of an employer work rule, and therefore her injury should not be compensable.

An employee participating in horseplay may still be compensated for her injuries depending on: l) the extent and seriousness of the deviation, 2) the completeness of the deviation, 3) the extent to which the practice of horseplay had become an accepted part of employment, and 4) the extent to which the nature of employment may be expected to include some horseplay. Bruns Volkswagon Inc. v. DILHR, 110 Wis. 2d 324 (Ct. App. 1982). In this case, the duration of horseplay between the applicant and the co-worker was of a relatively brief duration. The applicant estimated the entire time of the incident was five to ten seconds.

The applicant testified that as she was pulling a pallet which was half full of packaged meat products into the cooler area, she exchanged remarks with a co-worker and kicked out in his direction with her right foot, and subsequently lost her balance and fell to the floor, suffering a fracture of her left elbow and coronoid process.

The applicant testified that she was not trying to injure the co-worker when she kicked out at him, and the evidence does not indicate that she touched the co-worker in any way, and the entire incident involved some friendly banter back and forth. There was no evidence that there was any antagonism between the applicant and the co-worker.

In addition, it appears that this kind of activity was at least informally accepted by the employer. Mr. Hardtke, the applicant's supervisor, testified that this type of bantering between co-workers was not uncommon in the workplace. Although Mr. Hardtke indicated that the applicant's actions created an unsafe workplace, he did not discipline the applicant and no reprimand was placed in her personnel file. Mr. Hardtke talked to the applicant about the incident and the applicant admitted it was her fault, but there was no evidence that she received any kind of discipline. The employer argues that the applicant violated a work rule against horseplay, however, the fact she may have violated a work rule does not establish that it was more than a momentary deviation taking her out of the course of her employment. Upon the whole, the incident seems innocent and impulsive, and involved a typical situation in the workplace with friendly banter between co-workers which unfortunately led in this case to a rather serious injury.

The employer argues that this was not a reflexive type of action but that the applicant intended to kick at the co-worker. The commission disagrees with the employer's characterization of the applicant's activity. The applicant's action was a reflexive type of action to the co-worker's comment, and although she did intend to kick out toward him, it was still a spur of the moment response. Considering all of the testimony and evidence presented in the record, the commission finds that this case meets the test set out in the Bruns case. The evidence does not indicate that this was an extensive or serious deviation by the applicant, but was rather a momentary and insubstantial deviation from the course of her employment, and it appears that the employer tolerated a modicum of this type of friendly bantering among co-workers, and the nature of the applicant's employment could be expected to include some horseplay as evidenced by the testimony in this case. Therefore, the commission agrees with the administrative law judge that the applicant's activity on January 29, 2003, was at most an impulsive, momentary, insubstantial deviation and was not sufficient to remove the applicant from the course of her employment. Therefore, the evidence indicates the applicant sustained a work-related injury on January 29, 2003, arising out of her employment while performing services incidental to her employment.

cc:
Attorney Daniel J. Kelley
Attorney Joseph Danas

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uploaded 2004/07/19