WCDefenseCA

More and more, the horseplay defense appears to be no defense at all.  In the case of Robert Baeza v. Federal Express, the Workers’ Compensation Appeals Board denied defendant’s petition for reconsideration of the workers’ compensation Judge’s finding that the defense did not apply.

Applicant was collecting paperwork when a co-worker came into the office and “bumped” into him.  At trial, the co-worker testified to a playful bumping, horsing around.  Applicant was not amused.  Citing a general dislike for the co-worker, applicant shoved him back hard, intending to show displeasure but not to play around.  Applicant, apparently, bit off more than he could chew and ended up in the hospital, later claiming an injury to the left eye, bilateral upper extremities, left hand, and left knee.

The WCJ held that, because applicant himself was not engaged in horseplay, the horseplay of other employees can not provide a defense to the self-insured employer.

This case may sound familiar, and it should.  These facts are similar to those in the case of Sergio Nufio v. Bridge Hospital, LLC.  If two employees are horsing around, and one gets hurt, what’s to stop the hurt one from saying that he wasn’t having fun?  Unfortunately, the horseplay defense seems far too easy to defeat, and an overwhelming amount of evidence, usually from co-workers, will be needed to defeat an applicant’s version of the events.  But are you really going to find a lot of employee witnesses eager to testify against a co-worker?