Happy Monday, dear readers! Boy, you won’t believe what your humble blogger went through on Friday! As I was walking to make an appearance at the San Francisco Board, a huge group of tourists crossed paths with me, and I was involuntarily turned around and ended up, somehow, where the California Supreme Court Justices go about their duties. As I was trying to make my way out, without California Highway Patrol catching wind of my involuntary trespass, I suddenly heard someone yell “Dogpile!” and four of the current Supreme Court justices, and two CHP officers, jumped on your humble blogger. Afterwards, they all got up laughing and “high-fiving,” before they realized that I wasn’t one of the other CHP officers and briefly apologized before escorting me out into the lobby.
If you don’t believe this story, neither did opposing counsel…
Anyway, dogpiles are apparently a growing occupational hazard. As everyone knows, cultural norms react to the dogpile in different ways. For example, in America, the dogpile is a friendly, fun form of roughhousing. By contrast, in some former member-states of the Soviet Union, the dogpile was the preferred method of execution. As Yakov Smirnoff used to say “In Soviet Russia, dogpile crush you for crimes against proletariat!”
But, as a recent split panel held, whether or not the “horseplay” defense can shield an employer from liability in a dogpile scenario turns on whether the injured worker was part of the pile, or the “victim.”
I respectfully submit for your attention the case of Tapiav. Golden State Health Centers. From what your humble blogger can glean from the facts, applicant had participated in several “dogpiles” of fellow employees at work over a period of several weeks. The prior dogpiles always were in good spirits, with no reprisals being taken by the victims.
At some point in December of 2012, applicant’s coworkers decided that it was his turn to suffer the wrath of the pile of dogs, and so he too was covered in the still-breathing bodies of his coworkers, with nothing but a couch to cushion the crushing weight. The testimony in the case reflects that the employer did not know about the dogpiling, and some testimony even reflected that applicant was smiling and laughing during the injury-causing dogpile. Dogpile. Dogpile. Dogpile.
Anywho, applicant claimed he sustained injuries resulting from this last dogpile, and the defendant raised the horseplay defense, reasoning that the dogpile was a game the employees were playing and so was not AOE/COE (this did occur off the clock, after hours, without the knowledge of management). At trial, the WCJ sided with the defense, noting in his observations that applicant, who claimed not to have wanted to participate in this particular dogpile, was “overall evasive” in his testimony.
The WCAB disagreed, reasoning that past participation in the dogpile “game” did not make this particular involuntary involvement in the game. The dissent, noted that whether applicant had wanted to participate and was now sour about sustaining an injury, or whether he really never wanted to be crushed beneath the dual burden of peer pressure and his peers, was a factual inquiry, and the WCJ is usually given a great deal of deference on factual inquiries, particularly the credibility of witnesses.
In any case, this is a lesson for us all: keep an eye on what the employees are doing after hours! Now, if you’ll excuse me, your humble blogger has some industrially-caused physical therapy to attend to due to the dogpile incident sustained by decree of the Supreme Court…