CHAD OLSON,  Employee/Appellant, v. SHORT STOP ELECTRIC and MERIDIAN INS. CO., Employer-Insurer.

 

WORKERS' COMPENSATION COURT OF APPEALS

OCTOBER 7, 1999

 

HEADNOTES

 

ARISING OUT OF & IN THE COURSE OF - HORSEPLAY.  The enactment of Minn. Stat. ' 176.001 did not overrule prior case law holding that certain workplace horseplay injuries are covered under the Workers= Compensation Act.  The horseplay which had caused the injury was customary in the workplace and the employer had acquiesced in it, so that it was, in essence, a risk of the employment as it was in fact conducted, thus the employee=s injury was not excluded from coverage under the Act.

 

Reversed.

 

Determined by: Wilson, J., Pederson, J., and Wheeler, C.J.

Compensation Judge: Paul V. Rieke

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The employee appeals from the compensation judge=s conclusion that the employee=s injury did not arise out of and in the course of the employment.  We reverse.

 

BACKGROUND

 

The employee, Chad Olson, was born in 1974.  He was hired by the employer, Short Stop Electric, as an apprentice electrician in March 1995.  The employee worked under a journeyman electrician, Neil Larsen, who acted as his supervisor.  When on a job site, the employee was Aon the clock@ from the time of arrival at the employer=s shop to proceed to a job site until the time work finished for the day at the site, except that the employees took a thirty minute unpaid lunch break at some time during the work day, the time being in the discretion of Mr. Larsen.  Customarily, the employees did not leave the job site for lunch, as this would have entailed using paid time to put away tools and supplies before lunch and to unpack them again after returning.  Instead, Mr. Larsen would assign one of the apprentices to go and purchase food ordered by the members of the work crew.  The work crew would have lunch when this employee arrived back with the food.  (T. 11-12, 19-20, 23-24; Exh. B at 9-11.)

 

The employee testified that on numerous occasions at various job sites the employee, his supervisor, and fellow employees had engaged in Arecreational activities@ that were not a part of their job duties.  These Arecreational activities@ frequently included dares or wagers among the members of the work crew to attempt some risky physical feat.  The employee testified that he had previously lost a bet with his supervisor for five lunches in about April 1998 that the supervisor could not jump down six or seven feet to a truss and hang there without falling the remaining nine feet to the ground.  He also stated that he, his supervisor and his fellow apprentices held contests about once a week on job sites to see who could jump the longest distance after taking a running start from inside the house under construction.  The employee recalled that on two or three occasions he and supervisor Neil Larsen had engaged in competitions involving swinging from truss to truss fifteen feet in the air for lunches as prizes.  He testified that Bruce Bennett, a co-owner of the employer, had taught the workers a game using steel pipe as a blow gun to shoot wire nuts at each other, that Mr. Bennett had played this game with the employees and that the employees played this game almost daily.  The employee also testified that when jumping contests were discussed in the presence of Mr. Bennett, Ahe laughed about it, asked who won, what we got for it.@ (T. 15-18, 39-40; Finding 8.)

 

The compensation judge found that Athe employee=s supervisor knew of and participated in the customary and frequent horseplay activities@ and that Athere was never a direct, unequivocal, expressed timely enforced prohibition by the employer to the employee not to engage in horseplay activities.@  (Finding 9.)

 

On August 7, 1998, the employee was working for the employer at a job site at a residence in Ramsey, Minnesota.  Some time around the noon hour, Mr. Larsen sent one of the  apprentices, Steve Eller, to purchase food at a McDonald=s restaurant.  The employee and Mr. Larsen had been working on the second floor of the house.  A patio door on that floor opened above an eight-foot drop to the ground.  At some point before Mr. Eller had returned with the food, the supervisor, Mr. Larsen, and Todd Campbell, another apprentice working for the employer at the site, dared the employee to jump to the ground from the patio door.  The employee first refused to do so in return for a can of pop offered to him as an inducement for taking the dare.  According to Mr. Larsen=s testimony, Todd Campbell then raised the bet to two lunches, but the employee again declined, at which point Mr. Larsen went downstairs to tie off some wires in an electrical panel.  The employee testified that Mr. Larsen raised the bet to four lunches, two from him and two from Todd Campbell.  In either event, the employee took the bet and jumped to the ground, but landed in such a manner as to sustain a broken heel.  (T. 12-14, 19; 24-28, 36-37, Exh. B at 9-14.)

 

On March 4, 1999, a hearing was held before a compensation judge of the Office of Administrative Hearings on the sole issue of whether the employee=s injury was one which arose out of and in the course of the employment.  The employee appeals from the judge=s denial of compensation.

 

STANDARD OF REVIEW

 

This case presents only questions of law.  A[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers= Compensation Court of Appeals] may consider de novo.@  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

The employee appeals from the compensation judge=s determination that the employee=s injury did not arise out of and in the course of his employment. The compensation judge apparently concluded that his findings of fact would have supported a legal determination of compensability if certain prior cases were taken as precedential.^[1]  However, he further seems to have concluded that those cases had reached their holdings as a result of the application of a remedial and broadly liberal construction of the Workers= Compensation Act, and thus were no longer of precedential value after 1981 pursuant to Minn. Stat. '176.001 (1981).^[2]  The compensation judge concluded that the employee=s injury was non-compensable in that Athe employee=s decision to engage in betting with his supervisor and co-employee that he could jump eight feet to the ground resulting in injury had no significant relationship with the performance of his job duties so as to impute liability to the employer under the Minnesota Workers= Compensation Act.@  (Mem. at 4.)

 

The question of liability for injuries sustained during workplace Ahorseplay@ under the Minnesota Workers= Compensation Act is one which has been raised almost since the Act=s inception.  In State ex rel. H. S. Johnson Sash & Door Co., 140 Minn. 75, 167 N.W. 283 (Minn. 1918), the earliest Minnesota horseplay case of which we are aware, the Minnesota Supreme Court considered liability for an injury sustained when an employee of a woodworking factory was struck in the eye by a sash pin thrown by a fellow employee, an activity which the employees were accustomed to engage in as sport or mischief.  Examining established precedent in other jurisdictions, our Supreme Court noted that A[t]he rule is well enough settled that where workmen step aside from their employment and engage in horseplay or practical joking, or so engage while continuing their work, and accidental injury results . . . the injury is not one arising out of the employment within the meaning of compensation acts.@  Notwithstanding this principle, however, the court found the injury compensable as an exception to this general rule because the horseplay which had caused the injury was customary in the workplace and the employer had acquiesced in it, so that it was, in essence, a risk of the employment as it was in fact conducted.

 

This exception to the general noncompensability of horseplay injuries continued to be recognized and applied by the Minnesota Supreme Court and the Industrial Commission over the next two or three decades.  In a case involving the death of an employee resulting from the last of a series of horseplay interchanges between the employee and his foreman,^[3] the Supreme Court again reiterated that notwithstanding the general rule denying compensation for injuries sustained during horseplay, Acompensation has been allowed in cases where the skylarking or horseplay was commonly carried on with knowledge or consent of the employer, or at least with the employer=s acquiescence.@  Barden, et al v. Archer Daniels-Midland Co., 187 Minn. 600, 246 N.W. 254, 7 W.C.D. 295, 296-297 (Minn. 1933); see also Rydholm v. Forman, Ford & Co., 7 W.C.D. 288 (Minn. Indus. Comm. 1932) (eye injury from employees= habit of throwing small wads of waste felt or adhesive tape, which the management had not attempted to stop).

 

In 1937, significant statutory changes were made to the Workers= Compensation Act.  For example, an employer=s prior right to elect not to be bound by the Act was abolished.  In addition, the coverage of the Act was significantly extended to include all injuries arising out of and in the course of the employment, without regard to negligence, excepting solely injury or death which was either self-inflicted or resulted from an employee=s intoxication as the natural or proximate cause.  Prior law had limited liability to injuries for which the employer=s negligence was the natural or proximate cause and had also permitted a defense of wilful negligence by the employee.^[4]

 

In a 1960 case, Cunning v. City of Hopkins, 258 Minn. 306, 103 N.W.2d 876 (1960), the Minnesota Supreme Court first reconsidered the prior rule generally denying compensability for an injury resulting from horseplay in a case arising under the new statute.  The injured employee, Bruce Cunning, was a college student employed by the Department of Parks and Recreation of the City of Hopkins.  While riding to another work site in the back of a pickup truck, Cunning and another student employee, as a prank, flipped a raincoat over the cab of the truck so that it hung across the windshield, partially obstructing the driver=s view.  As the driver erratically negotiated a series of curves in the road, the employee was thrown from the truck, sustaining injury.  The employer defended the claim on the basis of the general rule that injuries sustained during horseplay did not arise out of and in the course of the employment, and the Industrial Commission agreed.  The Supreme Court reversed.  Citing Pedro v. Martin Baking Co.,^[5] the Court concluded that the Workers= Compensation Act did not expressly exclude Ahorseplay@ injuries from coverage and that an implicit exception could not be read into the statute, nor could a distinction be drawn between a participant injured in the horseplay and a non-participant injured as a result of the horseplay, as to do so would import a negligence standard, contrary to the express wording of the statute.

 

We reject the compensation judge=s apparent conclusion that Cunning was effectively overruled by the enactment of Minn. Stat. '176.001.  While dictum in the Cunning case did mention the principle of liberal construction, we do not believe that the case turned on this point.  The departure from prior law represented by the Cunning case was clearly a response to the specific statutory changes made by the legislature, which had eliminated an employee=s wilful negligence as a defense to compensability and eliminated any requirement of actual or implied-in-law negligence on the part of the employer.  Even if Cunning had been decided under the former rule of liberal construction, such case law remains valid unless expressly overruled by the supreme court or altered by the legislature.  See Foley v. Honeywell, Inc., 488 N.W.2d 268, 271‑72 n.2 (Minn. 1992).  In addition, we note that this court has applied and cited Cunning in various cases subsequent to the enactment of section 176.001, and our affirmance of the compensability of a horseplay-related injury has been summarily affirmed by the Minnesota Supreme Court.^[6]

 

In their brief the employer and insurer argue that the denial of liability is justified pursuant to Elfelt v. Red Owl Stores, 296 N.W.2d 237, 26 W.C.D. 660 (Minn. 1973), and Qualy v. Metropolitan Transit Comm=n, 42 W.C.D. 1040 (W.C.C.A. 1990).  In both these cases, liability was denied where the horseplay took place after the injured employee had already punched out from work and was no longer in a place where the employer=s service required him to be.  We note in the instant case, that the compensation judge did not find that the employee was off the clock when he engaged in the wager with his supervisor and coworker and jumped down from the patio door.  Rather, the judge found merely that the injury occurred Anear the noon hour@ while employees were Awaiting for lunch.@ (Finding 5.)  In addition, the compensation judge specifically found that A[t]he relationship of the employee and employer were [sic] not suspended during the time that the lunches were being obtained by a co-employee.  The circumstances regarding the lunch time for the employee created the fair implication that the employer expected or at least invited the employee to remain in the proximity of the work site@ (Finding 9).  The circumstances of this case are thus distinct from those presented in Elfelt and Qualy and we do not find these cases applicable to the facts as determined by the compensation judge.

 

Finally, the employer and insurer relied on cases which deny compensability for injuries, whether or not occasioned by horseplay, which are the result of an employee=s participation in an act clearly and expressly prohibited by the employer.  Rather than discuss such cases in detail, we need only note that the compensation judge specifically found that A[t]here was never a direct, unequivocal, expressed timely enforced prohibition by the employer to the employee not to engage in horseplay activities nor to not engage in the specific jump that occurred on August 7, 1998,@ that A[t]he employee=s supervisor was significantly influential in creating the circumstances that led to the employee=s jump and eventual disablement on August 7, 1998,@ and that A[t]he injury to the employee was easily foreseeable to the employer if one considers that the employer=s supervisor knew of and participated in the customary and frequent horseplay activities.@  (Finding 9.)  These specific factual findings in this case are supported by substantial evidence and preclude a Aprohibited act@ defense.

 

We conclude that the compensation judge erred in denying compensation for the employee=s horseplay injury.  In our view, Cunning is still good law.  Further, even if Cunning were overruled by the enactment of Minn. Stat. '176.001, we note that in the cases decided in Minnesota even prior to the period of Aliberal construction@ and, indeed, prior to the elimination of a defense of wilful negligence by the employee, compensation for horseplay injuries was awarded as an exception to the general exclusion from coverage where the horseplay which had caused the injury was customary in the workplace and the employer had acquiesced in it.  Under the facts as determined in this case, we conclude that the employee=s injury is compensable under even the strictest possible construction of the statutory and case law.

 

The compensation judge=s conclusions of law in denial of compensation are reversed.