Xenia Rural Water District And Emcasco Insurance Company Vs. Norman Vegors

IN THE SUPREME COURT OF IOWA
No. 09–0426
Filed July 23, 2010
XENIA RURAL WATER DISTRICT and
EMCASCO INSURANCE COMPANY,
Appellees,
vs.
NORMAN VEGORS,
Appellant.
Appeal from the Iowa District Court for Polk County, Robert
Hutchison, Judge.
Workers’ compensation claimant appeals district court denial of
benefits based on the willful injury affirmative defense in Iowa Code
section 85.16(3) (2003). DISTRICT COURT JUDGMENT AFFIRMED IN
PART AND REVERSED IN PART; CASE REMANDED.
Tom L. Drew of Drew Law Firm, P.C., Des Moines, and Kristin H.
Johnson, Clive, for appellant.
Iris Post of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des
Moines, for appellee.
2
STREIT, Justice.
An employer claims it is not responsible for injuries sustained
when a worker got hit by a truck driven by a fellow employee. The
district court reversed the industrial commissioner’s award of worker
compensation benefits based on Iowa Code section 85.16(3) (2003), an
affirmative defense for willful injury. We reverse the district court in part
and remand the case to the industrial commissioner for a determination
of whether the claimant proved he did not substantially deviate from the
course of employment.
I. Background Facts and Prior Proceedings.
Norman Vegors worked as a machine inspector for Xenia Rural
Water District, a company that installs rural water lines. Vegors was
injured at work after a coworker, Casey Byrd, hit him with a pickup
truck. Vegors had his hands full and “wiggled [his] butt” at Byrd. Vegors
testified that he did so to acknowledge or say hi to Byrd. Vegors then
leaned over the bed of his own truck. After this, Byrd attempted to bump
Vegors with the mirror of his truck but instead hit Vegors with the truck
bed.
Vegors testified that he and Byrd commonly acknowledged each
other even when their hands were full, including, for example, waving the
boom of the track hoe at the other. Xenia employees testified that Vegors
had been involved in a prior incident for which he was disciplined and
that he admitted to his supervisor that he and Byrd had just been
goofing around.
Vegors sought workers’ compensation benefits, and Xenia
contested benefits, arguing Vegors was barred from recovering because
he engaged in horseplay and asserting the affirmative defense of willful
injury. The deputy commissioner held that Xenia, as the employer, had
3
the burden to prove the defense of horseplay. The deputy commissioner
found Vegors intended to shake his hind end as a means of
communication and not to initiate, instigate, or participate in the
horseplay which led to the injury, and, therefore, recovery of workers’
compensation benefits was not barred. The commissioner affirmed the
decision to award benefits and, although the deputy had not discussed
it, separately addressed the affirmative defense found in section 85.16(3)
barring compensation when injury is caused by the “willful act of a third
party directed against the employee for reasons personal to such
employee.” The commissioner held the defense did not apply because a
coworker is not a third party.
Xenia sought judicial review. The district court addressed the
question of whether “the agency erred in finding that petitioners did not
meet their burden of proof that the claimant’s alleged injury was the
result of horseplay, and that the petitioners did not prove an affirmative
defense pursuant to Iowa Code § 85.16(3).” The district court reversed
and held Vegors was barred from receipt of benefits. Vegors appealed.
II. Scope of Review.
An appeal of a workers’ compensation decision is reviewed under
standards described in chapter 17A.19(10). Iowa Code § 86.26; Mosher
v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 508 (Iowa 2003). “We
review the district court decision by applying the standards of the [Iowa]
Administrative Procedure Act to the agency action to determine if our
conclusions are the same reached by the district court.”
Locate.Plus.Com, Inc. v. Iowa Dep’t of Transp., 650 N.W.2d 609, 612 (Iowa
2002). A reviewing court may reverse the decision of the workers’
compensation commissioner if it is unsupported by substantial evidence
in the record. Iowa Code § 17A.19(10)(f).
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Under chapter 17A, when the legislature has “clearly . . . vested”
an agency with authority to interpret a statute, this court will only
reverse a decision of statutory construction which is irrational, illogical,
or wholly unjustifiable. Iowa Code § 17A.19(10)(l). When the agency has
not “clearly been vested” with such authority, this court will review
questions of statutory interpretation for errors at law. Iowa Code
§ 17A.19(10)(c).
The workers’ compensation commissioner is generally charged by
the legislature with the duty to “[a]dopt and enforce rules necessary to
implement” workers’ compensation laws. Iowa Code § 86.8. We have
previously found that the legislature did not delegate the interpretation of
chapter 85 to the commissioner. Mycogen Seeds v. Sands, 686 N.W.2d
457, 464 (Iowa 2004); see also Rojas v. Pine Ridge Farms, L.L.C., 779
N.W.2d 223, 231 (Iowa 2010) (“It is well-settled law that the legislature
did not clearly vest the workers’ compensation commissioner with the
power to interpret the workers’ compensation statutes.”). We recently
clarified in Renda v. Iowa Civil Rights Commission, ___ N.W.2d ___, ___
(Iowa 2010), that the court must also determine whether the agency has
been vested with authority to interpret the relevant phrases and
individual statutes. Here, the agency’s analysis involved the
interpretation of Iowa Code section 85.3(1) to determine whether the
employee’s injuries were sustained “arising out of and in the course of
the employment.” The agency also interpreted Iowa Code section
85.16(3), specifically the term “third party.”
Although the legislature has not provided an explicit written
statement regarding the workers’ compensation commissioner’s
authority, we must determine whether the legislature clearly vested the
agency with authority to interpret the statutes at issue. Iowa Code
5
§ 17A.19(10)(c), (l). After examining chapter 85, we find the workers’
compensation commissioner is not clearly vested with the authority to
interpret Iowa Code sections 85.3(1) and 85.16(3). As noted in Renda,
“we have not concluded that a grant of mere rulemaking authority gives
an agency the authority to interpret all statutory language.” Renda, ___
N.W.2d at ___. There is no language in either statutory section indicating
a desire by the legislature to vest the commissioner with authority to
interpret the subsections at issue. See Iowa Code §§ 85.3(1), 85.16(3).
Additionally, the relevant terms—“arising out of and in the course of the
employment” and “third party”—have “an independent legal definition
that is not uniquely within the subject matter expertise of the agency.”
Renda, ___ N.W.2d at ___. Therefore, we review the agency’s statutory
interpretation here for errors at law. Iowa Code § 17A.19(10)(c).
III. Merits.
A. Burden to Establish Horseplay or Lack Thereof. Xenia,
Vegors’s employer, argued Vegors cannot be compensated because he
engaged in horseplay. The deputy commissioner held that Xenia had the
burden to demonstrate horseplay because it is a defense. The deputy
commissioner then determined Vegors had not engaged in horseplay.
The commissioner affirmed the deputy commissioner but did not address
the proper burden. Upon judicial review, the district court reversed the
agency and held the claimant bears the burden to demonstrate that the
injury arose out of and in the course of employment and therefore, to
demonstrate the injury was not the result of horseplay. It appears the
district court did not reach an ultimate conclusion on the merits of
whether Vegors’s alleged horseplay bars recovery because the court went
on to hold Vegors’s recovery was barred under a separate affirmative
defense, which we will address below.
6
Employers are required to compensate employees for “personal
injuries sustained by an employee arising out of and in the course of the
employment.” Iowa Code § 85.3(1). The injured employee has the
burden of proving by a preponderance of the evidence that the injuries
arose out of and in the course of employment. See Quaker Oats Co. v.
Ciha, 552 N.W.2d 143, 150 (Iowa 1996). The phrase “arising out of”
refers to the cause and origin of the injury. See Miedema v. Dial Corp.,
551 N.W.2d 309, 311 (Iowa 1996). The phrase “in the course of” refers to
the time, place, and circumstances of the injury. Id.
Prior cases of this court suggest the injured employee must show
he or she was not engaged in horseplay as part of the burden to
demonstrate the injury arose out of and in the course of employment.
See Ford v. Barcus, 261 Iowa 616, 623, 155 N.W.2d 507, 511 (1968)
(“Horseplay which an employee voluntarily instigates and aggressively
participates in does not arise out of and in the course of his employment
and therefore is not compensable.”); Wittmer v. Dexter Mfg. Co., 204 Iowa
180, 185, 214 N.W. 700, 702 (1927) (“We conclude there was evidence
supporting the finding of the commissioner that the appellee voluntarily
participated in the play—the jostling—that caused his fall and injury,
and that the injury did not arise out of his employment.”).
These opinions are consistent with treatment of the horseplay
issue in other jurisdictions. Some jurisdictions bar compensation for
certain types of horseplay based on the “arising out of employment”
language. See Lincoln v. Whirlpool Corp., 279 N.E.2d 596, 601 (Ind. Ct.
App. 1972) (“[W]here the ‘horseplay’ was not acquiesced in by the
employer, not a natural condition of the employment, and where, in fact;
the employee participated in the ‘horseplay,’ and was not, therefore, an
innocent victim . . . we have consistently denied compensation in such
7
cases for the reason that such activity does not arise out of the
employment.”); 2 Arthur Larson & Lex K. Larson, Larson’s Workers’
Compensation Law § 23.07, at 23–13 (2009) [hereinafter Larson’s].
Larson’s suggests the proper analysis is to look at horseplay as
potentially outside the “course” of employment because of a deviation. 2
Larson’s § 23.07, at 23–13. We agree the proper analysis is whether the
claimant substantially deviated from the course of employment, as will
be explored more fully below. Regardless, it is clear that the prohibition
on recovery where an injury resulted from the claimant’s horseplay stems
from the requirement that injuries arise out of and in the course of
employment.
Vegors argues that placing the burden upon the claimant to
demonstrate that the injury was not the result of horseplay is
inconsistent with general legal principles because it requires the
claimant to prove a negative. Vegors points to Iowa Rule of Appellate
Procedure 6.904(3)(e) which states, “[o]rdinarily, the burden of proof on
an issue is upon the party who would suffer the loss if the issue were not
established.” Vegors contends that if horseplay is not established, the
employer will suffer the loss and therefore should bear the burden.
We disagree. The horseplay exception stems from the requirement
that the injury arise out of and in the course of employment, and Vegors
will bear the loss here if he cannot meet this requirement. Employers
may raise any number of arguments to contest an employee’s assertion
that an injury arose out of and in the course of employment. For
example, in Quaker Oats, the employee was injured in a traffic accident
after being paged to the plant on a Sunday to fix a mechanical problem.
Quaker Oats, 552 N.W.2d at 147. The employer argued that the
employee’s travel home from the plant was not in the course of
8
employment and that the employee deviated from his employment by
taking the more scenic route home. Id. at 150, 153. The employer’s
arguments were meant to contest whether the injury arose out of and in
the course of employment. The burden, however, remained on the
employee and did not shift to the employer. Id. at 150.
Similarly, Vegors retains the burden to show his injury arose out of
and in the course of employment. His employer, Xenia, argues that he
has not met that burden because the injury was the result of horseplay.
This argument does not shift the burden to Xenia.
B. Application of Horseplay Doctrine to Vegors. Vegors argues
that even if the commissioner improperly held Xenia, the employer, had
the burden to establish horseplay, the district court should have
remanded for the commissioner to apply the facts to the proper burden.
The deputy commissioner held that Xenia did not meet its burden
to demonstrate horseplay and credited Vegors’s explanation of the injury.
On review within the agency, the commissioner noted that the deputy
commissioner “believed claimant when he testified that his act of shaking
his butt was intended as a means of communication and not to initiate,
instigate or participate with a co-workers’ horseplay that lead [sic] to the
injury.” The commissioner affirmed the award of benefits, explaining
that although his review is de novo, he gave deference to the deputy
commissioner’s credibility determination and that “[g]enerally, non-
participating victims of horseplay will be compensated.” The district
court held the agency applied the incorrect burden, but did not remand
the case to the commissioner because the court separately determined
Xenia had established its willful-injury defense under section 85.16(3).
Vegors argues it cannot be determined as a matter of law that
Vegors engaged in horseplay that would bar compensation and therefore,
9
remand is appropriate to allow the commissioner to consider the issue
under the proper burden. See McSpadden v. Big Ben Coal Co., 288
N.W.2d 181, 186 (Iowa 1980) (“Remand is also necessitated in order to
permit the agency to re-evaluate the evidence, applying the correct rule of
law, unless the reviewing court can make the necessary factual findings
as a matter of law because the relevant evidence is both uncontradicted
and reasonable minds could not draw different inferences from it.”
(Emphasis added.)). We agree with Vegors that it cannot be determined
as a matter of law that Vegors participated in horseplay that barred
recovery.
This court has held that horseplay which an employee “voluntarily
instigates and aggressively participates in does not arise out of and in
the course of his employment.” Ford, 261 Iowa at 623, 155 N.W.2d at
511. Not all acts of horseplay or levity will preclude an injured employee
from recovery. Instead, a claimant’s actions—including horseplay—will
bar recovery under the workers’ compensation scheme when the
claimant substantially deviates from the employment. See Quaker Oats,
552 N.W.2d at 153–54 (noting “injury is not compensable if [claimant] is
found to have ‘deviated sufficiently from the line of duty so that his or
her actions are foreign to the employer’s work’ ” and affirming agency
determination of no “substantial deviation from or abandonment of the
employment” (quoting Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa
1986)); Eagle-Picher Co. v. McGuire, 307 P.2d 145, 147 (Okla. 1957)
(“ ‘This doctrine, that a deviation in a certain limited measure does not
take the employee out of the course of employment, is applicable not only
to curiosity cases, horseplay and assaults, but also to foolhardy acts.’ ”
(quoting Secor v. Penn Serv. Garage, 113 A.2d 177, 181 (N.J. Super. Ct.
App. Div. 1955))).
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Innocent employees who are injured as the result of another’s
horseplay may recover. It is “clearly established that the non-
participating victim of horseplay may recover compensation.” 2 Larson’s
§ 23.02, at 23–2; see also Coleman v. Armour Swift-Eckrich, 130 P.3d
111, 114–16 (Kan. 2006) (adopting rule that non-participating victim of
horseplay may recover based on “overwhelming weight of . . . authority in
our sister states and current legal commentary”).
For those employees who have initiated or are participating in
horseplay, courts and commentators have suggested four considerations
for determining whether the horseplay is a deviation from the course of
employment that bars recovery:
“(1) the extent and seriousness of the deviation, (2) the
completeness of the deviation (i.e., whether it was
commingled with the performance of duty or involved an
abandonment of duty), (3) the extent to which the practice of
horseplay had become an accepted part of the employment,
and (4) the extent to which the nature of the employment
may be expected to include some such horseplay.”
Phillips v. John Morrell & Co., 484 N.W.2d 527, 530–31 (S.D. 1992)
(quoting 1A Larson’s Wormen’s Compensation Law § 23.00 (1990) (now 2
Larson’s § 23.01, at 23–2)) (holding slaughterhouse assembly line worker
who threw hog sperm cords at a coworker could recover for a serious
stabbing injury sustained from the coworker). Courts have also held that
the causal connection between a claimant’s own conduct and an injury
may be severed where there is a passage of time and the employee has
returned to the course of employment. See Baird v. Travelers Ins. Co.,
107 S.E.2d 579, 583 (Ga. Ct. App. 1959) (upholding determination that
claimant was entitled to compensation after being injured by supervisor’s
horseplay where claimant’s own horseplay had taken place an hour
earlier in a separate location); Rex-Pyramid Oil Co. v. Magan, 153 S.W.2d
11
895, 899 (Ky. Ct. App. 1941) (upholding award of benefits to claimant
who engaged in a waterfight on employer’s property and was afterwards
hit by a car while crossing a highway to perform work at another site).
The inquiry should focus on the actions of the claimant.
The substantial character of a horseplay deviation
should not be judged by the seriousness of its consequences
in the light of hindsight, but by the extent of the work-
departure in itself. This is not always easy to do, especially
when a trifling incident escalates or explodes into a major
tragedy.
2 Larson’s § 23.07[3], at 23–23. The character of Vegors’s action of
shaking his rear end—and not the serious injury resulting from being hit
with a truck—must be analyzed to determine whether it is a deviation
sufficient to bar recovery.
It cannot be determined as a matter of law that Vegors voluntarily
instigated or aggressively participated in horseplay to an extent that
prevents compensation. There is evidence in the record that the
horseplay was initiated only by Byrd or that any action by Vegors was an
insubstantial deviation from his employment. Vegors testified that he
acknowledged Byrd with his hind end and that he did not intend to dare
Byrd to hit him with a truck, otherwise he would not have turned around
and focused his attention on his work prior to being hit. The
commissioner made a determination that Vegors meant to shake his
posterior as a method of acknowledging his coworker. Vegors’s butt
wiggle considered in isolation could be thought a “harmless act of levity.”
Baltimore & Ohio R.R. v. Taylor, 589 N.E.2d 267, 274 (Ind. Ct. App. 1992)
(affirming trial court determination that “[t]he fact that he was relieving
the tedium of his job by a harmless act of levity does not take him
outside the scope of his employment”). Additionally, it is claimed the
action of Vegors’s coworker Byrd was grossly disproportionate to Vegors’s
12
own action and the proper focus is on Vegors’s action. See Liberty Nw.
Ins. Corp. v. Johnson, 919 P.2d 529, 530, 533 (Or. Ct. App. 1996)
(holding claimant who made a joking comment to a coworker and was
injured when coworker twisted him to the ground in a spirit of fun was
entitled to compensation); Mustard v. Indus. Comm’n, 792 P.2d 783, 784–
85 (Ariz. Ct. App. 1990) (holding compensation was not barred because
the claimant did not substantially deviate from her employment when the
claimant joked that a coworker had dropped his teeth, ran when he
good-naturedly chased her, and was hit in the back with a hammer when
the two collided).
Because we reverse the agency determination regarding the proper
allocation of the burden of proof, we remand to the agency to allow the
agency to apply the proper burden to the evidence. Cf. Kohlhaas v. Hog
Slat, Inc., 777 N.W.2d 387, 393 (Iowa 2009) (“Although it could be argued
there is substantial evidence in the record that Kohlhaas’s current
condition does not warrant an increase in compensation, it is fair to
conclude the commissioner’s determination may have been influenced by
the language in Acuity we have just disavowed. In that we have clarified
the requirements for a review-reopening petition, we reverse and remand
. . . .”). The commissioner should evaluate whether Vegors’s action was a
substantial deviation from his work based on the four factors identified
above and applying the proper burden.
C. Interpretation of Iowa Code Section 85.16(3). Xenia argues
Vegors’s compensation is also barred by Iowa Code section 85.16(3).
Section 85.16(3) prohibits compensation where an employee’s injury was
caused “[b]y the willful act of a third party directed against the employee
for reasons personal to such employee.” Iowa Code section 85.16(3) is an
affirmative defense, and, therefore, the employer bears the burden to
13
demonstrate compensation is barred. Cedar Rapids Cmty. Sch. v. Cady,
278 N.W.2d 298, 299 (Iowa 1979). The commissioner held that section
85.16(3) does not apply to coworkers because they cannot be considered
a “third party.” The district court disagreed and held that Iowa Code
section 85.16(3) applies to willful acts by a coworker. The district court
also held that the term “willful” requires only that the third party intend
to do the act which causes injury, not intend to injure the employee. The
district court held that Xenia established the affirmative defense of Iowa
Code section 85.16(3) because Byrd committed a willful act injuring
Vegors for a reason personal to Vegors, and Vegors therefore could not
recover. We must determine whether section 85.16(3) has application to
this case.
We apply the workers’ compensation statute broadly and liberally
in keeping with its humanitarian objective: the benefit of the worker and
the worker’s dependents. Id. The statute’s “beneficent purpose is not to
be defeated by reading something into it which is not there, or by a
narrow and strained construction.” Id. We are, however, bound by the
requirements of the statute. Id.
A limited number of states have enacted statutes comparable to
section 85.16(3). Regardless of whether states have enacted such
statutes, “it is almost universally held that when the animosity or
dispute which culminates in the assault is imported into the place of
employment from the injured employee’s private or domestic life, the
injury is not compensable, at least where the animosity is not
exacerbated by the employment.” Commercial Standard Ins. Co. v. Marin,
488 S.W.2d 861, 864 (Tex. Civ. App. 1972).
The potential application of section 85.16(3) in this case gives rise
to three issues: (1) whether the statute’s reference to third parties
14
includes coworkers, (2) whether the term “willful” requires an intent to
injure or only an intent to do the act which causes injury, and
(3) whether horseplay can be considered “reasons personal” to the
injured employee.
With regard to the first issue, Vegors suggests the phrase “third
party” cannot include coworkers because elsewhere in the workers’
compensation statute these terms are referred to separately. In section
85.22, the statute explains that when an injury creates a legal liability
against “some person, other than the employee’s employer or any
employee of such employer,” the injured employee “may also maintain an
action against such third party for damages.” Vegors points to this use
of the phrase “third party” as evidence that the term third party was not
meant to include coworkers. We do not find this example instructive.
The phrase “third party” in section 85.22 is preceded by “such,” which
refers the reader to the earlier definition of “person”, which specifically
excluded coworkers. Additionally, the language of section 85.16(3)
requires that the action of the third party be taken for “reasons personal
to the employee,” suggesting that the purpose of the section was to
prohibit compensation where the injury stems from a personal dispute or
animosity stemming from the injured employee’s life outside of work that
is not caused or exacerbated by the employment. This is equally
applicable to coworkers who may have some personal dispute outside of
work which culminates in an incident while at work. We see no reason
in the language of the statute to limit its application to third parties who
are not coworkers.
The second issue concerns the proper definition of “willful.” The
district court held the term willful required only that the third party
intend to do the act, not that the third party intend to injure the
15
claimant. This court has recognized that willful is susceptible to two
definitions. One possible definition of willful is “ ‘an act which is
intentional, or knowing, or voluntary, as distinguished from accidental.’ ”
Iowa Beta Chapter of Phi Delta Theta Fraternity v. State, 763 N.W.2d 250,
263 (Iowa 2009) (quoting United States v. Murdock, 290 U.S. 389, 394, 54
S. Ct. 223, 225, 78 L. Ed. 381, 385 (1933), overruled in part on other
grounds by Murphy v. Waterfront Comm’n, 378 U.S. 52, 73, 84 S. Ct.
1594, 1606, 12 L. Ed. 2d 678, 692 (1964)). A second potential meaning
is “ ‘an act done with a bad purpose; without justifiable excuse;
stubbornly, obstinately, perversely.’ ” Id. (quoting Murdock, 290 U.S. at
395, 54 S. Ct. at 226, 78 L. Ed. at 385). The interpretation of the word
“willful” is influenced by the statutory context. Id.
Many state statutes comparable to section 85.16(3) require that
the third party act be done with an intent to injure. See, e.g., Tex. Lab.
Code Ann. §406.032(1)(C) (West, Westlaw through 2009 Regular and
First Called Sessions of the 81st Legislature) (injury is not compensable if
it “arose out of an act of a third person intended to injure the employee
because of a personal reason and not directed at the employee as an
employee or because of the employment”); 77 Pa. Cons. Stat. § 411(1)
(Westlaw through Act 2010–37) (injury “shall not include an injury
caused by an act of a third person intended to injure the employee
because of reasons personal to him, and not directed against him as an
employee or because of his employment”). Iowa’s statute appears to be of
the same type as these other state statutes but refers only to a “willful
act.” However, we need not address the proper standard for a “willful
act” because, as explained below, we hold that section 85.16(3) is
inapplicable to the circumstances of this case.
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With regard to the third issue, we find that Byrd’s action of hitting
Vegors with a truck was not done for “reasons personal to the employee.”
Courts have explained that incidents which arise between employees are
often “part and parcel” of the working environment and will not bar
compensation unless an employee’s action is caused by “influences
originating entirely outside the working relation and no[t] substantially
magnified by it.” Hartford Accident & Indem. Co. v. Cardillo, 112 F.2d 11,
17 (D.C. Cir. 1940); cf. Tex. Employers Ins. Ass’n v. Campos, 666 S.W.2d
286, 289 (Tex. App. 1984) (“Where an employee is injured in a personal
difficulty arising over the manner in which his work is being done,
although the difficulty itself is not a part of the work of the employee,
such injury is compensable . . . .”). Byrd’s action of trying to bump
Vegors with his work truck was not based on a personal relationship
outside the working environment.
The category of injuries barred from compensation by section
85.16(3) is often referred to as “privately motivated assaults” or
“imported-quarrel cases.” 1 Larson’s § 8.02, at 8–43. As Larson’s
explains, “[a] familiar example of private animosity is that engendered by
or about spouses.” Id. While we do not rule out the possibility of a
situation where horseplay was based on motivations imported to the
working environment, typically it is the working environment itself which
leads coworkers to engage in momentary jokes or asides. As Justice
Cardozo explained,
Whatever men and boys will do, when gathered together in
such surroundings, at all events if it is something reasonably
to be expected, was one of the perils of his service. We think
with Kalisch, J., in Hulley v. Moosbrugger, . . . “[f]or workmen
of that age or even of maturer years to indulge in a moment’s
diversion from work to joke with or play a prank upon a
fellow workman, is a matter of common knowledge to every
one who employs labor.”
17
Leonbruno v. Champlain Silk Mills, 128 N.E. 711, 711 (N.Y. 1920)
(quoting Hulley v. Moosbrugger, 93 A. 79, 79 (N.J. Sup. Ct. 1915), rev’d,
95 A. 1007, 1010 (N.J. 1915)); see also 2 Larson’s § 23.02, at 23–3 (“Mr.
Justice Cardozo’s opinion in the Leonbruno case is generally credited
with having ushered in the modern rule.”).
Section 85.16(3) is limited to actions which are taken “for reasons
personal” to the employee and not as a consequence of the working
environment. There is no evidence in the record that Byrd and Vegors
had any relationship outside of work other than as coworkers or that
Byrd hit Vegors for any reason imported from outside the working
environment. Therefore, as a matter of law, the affirmative defense in
section 85.16(3) does not bar Vegors’s claim for benefits.
IV. Conclusion.
Claimant has the burden to establish his injuries arose out of and
in the course of employment. A claimant cannot recover for injuries
stemming from an employee’s instigation or aggressive participation in
horseplay that constitutes a substantial deviation from his employment
because such actions do not arise out of and in the course of the
employment. Therefore, the claimant bears the burden to establish he or
she did not substantially deviate from the employment by instigating or
aggressively participating in the horseplay. Because the commissioner
incorrectly applied the burden of proof, we remand to the district court
for remand to the commissioner for reconsideration under the current
record. 1 Additionally, Vegors’s claim is not barred by section 85.16(3)
1We note that Xenia raised two additional issues on judicial review that were not
addressed by the district court: (1) whether the deputy commissioner erred in finding
that the respondent was entitled to a permanent total disability award and (2) whether
the deputy commissioner erred in finding that the claimant’s left knee injury was
causally related to the June 2, 2005 incident. Because we remand to the district court
for remand to the commissioner on the issue of entitlement to compensation, these
18
because the action of his coworker that resulted in his injury was not
done for reasons “personal” to Vegors.
DISTRICT COURT JUDGMENT AFFIRMED IN PART AND
REVERSED IN PART; CASE REMANDED.
________________________________
issues need not be addressed by the district court until Vegors’s entitlement to benefits
is determined.