Clodgo v. Rentavision, Inc.

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Clodgo v. Rentavision, Inc. (96-211); 166 Vt. 548; 701 A.2d 1044

[Filed 11-Jul-1997]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 96-211

Brian Clodgo Supreme Court

On Appeal from
v. Commissioner of Labor and
Industry

Rentavision, Inc. January Term, 1997

Mary S. Hooper, Commissioner

Andrew C. Boxer of Kiel & Associates, Springfield, for plaintiff-appellee

Kerry G. Spradlin, Bennington, for defendant-appellant

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Allen, C.J.
(Ret.), Specially Assigned

GIBSON, J. Defendant Rentavision, Inc. appeals a decision of the
Commissioner of the Vermont Department of Labor and Industry awarding
workers' compensation benefits to claimant Brian Clodgo. Rentavision
argues the Commissioner erred in awarding compensation for an injury
sustained while claimant and another employee were engaged in horseplay.
We reverse.

On July 22, 1995, claimant was working as manager of Rentavision's
store in Brattleboro. During a lull between customers, claimant began
firing staples with a staple gun at a co-worker, who was sitting on a couch
watching television. The co-worker first protested, but then, after
claimant had fired twenty or thirty staples at him, fired three staples
back at claimant. As claimant ducked, the third staple hit him in the eye.

Claimant eventually reported the injury and filed a claim for workers'
compensation benefits. Rentavision contested the award, arguing that
claimant was engaged in noncompensable horseplay at the time of the injury.
Following a hearing in March 1996, the

Commissioner awarded permanent partial disability and vocational
rehabilitation benefits, medical expenses, and attorney's fees and costs.
This appeal followed.

This Court's review is limited to questions of law the Commissioner
has certified. 21 V.S.A. § 672; Goodwin v. Fairbanks, Morse & Co., 123 Vt.
161, 162, 184 A.2d 220, 221 (1962). Although the Court defers to the
Commissioner's interpretation of Vermont's Workers' Compensation Act, we
will not affirm an interpretation that is unjust or unreasonable. See
Bedini v. Frost, ___ Vt. ___, ___, 678 A.2d 893, 894 (1996). We look to
the whole statute, its effects and consequences, and the reason and spirit
of the law to determine whether the Commissioner's interpretation conflicts
with the Legislature's intent. Spears v. Town of Enosburg, 153 Vt. 259,
262, 571 A.2d 604, 605-06 (1989).

Compensable injuries under Vermont's Workers' Compensation Act are
those received "by accident arising out of and in the course of . . .
employment." 21 V.S.A. § 618. Although only work-related injuries are
compensable, we recognize that "even [employees] of maturer years [will]
indulge in a moment's diversion from work to joke with or play a prank upon
a fellow [employee]." Leonbruno v. Champlain Silk Mills, 128 N.E. 711, 711
(N.Y. 1920). For such a horseplay-related injury to be compensated,
however, claimant must show that it both (1) arose out of the employment,
and (2) occurred in the course of the employment. 21 V.S.A. § 618; Miller
v. International Business Machs. Corp., 161 Vt. 213, 214, 637 A.2d 1072, 1072-73 (1993). A nonparticipant injured by the horseplay of others will
nearly always be able to meet this test, see 2 A. Larson & L. Larson,
Workers' Compensation Law § 23.61, at 5-199 (1997); cf. Myott v. Vermont
Plywood, Inc., 110 Vt. 131, 134-35, 2 A.2d 204, 206 (1938) (nonparticipant
compensated for injury), while a participant may or may not recover. See 2
Larson & Larson, supra § 23.20, at 5-182 to 5-183.

In setting forth the applicable standard, the Commissioner stated that
nothing short of specific intent to injure falls outside the scope of the
Act. This overly broad statement was borrowed, however, from a case
analyzing the exclusive-remedy aspects of workers'

compensation law, made in the context where an employee attempts to prove
specific intent by the employer to injure the employee. See Kittell v.
Vermont Weatherboard, Inc., 138 Vt. 439, 441, 417 A.2d 926, 927 (1980).
Whether a horseplay participant is entitled to recover usually hinges on
whether the injury occurred in the course of employment, which, in turn,
depends on the extent of the employee's deviation from work duties. See 2
Larson & Larson, supra §§ 23.20, 23.61, at 5-183, 5-198 to 5-201; cf.
Sekora v. Industrial Comm'n, 556 N.E.2d 285, 288-89 (Ill. App. Ct. 1990)
(claimant riding all-terrain cycle without authorization was substantial
deviation from work duties and thus outside course of employment); Petrie
v. General Motors Corp., 466 N.W.2d 714, 716 (Mich. Ct. App. 1991)
(claimant's actions leading to electrocution found to be substantial
deviation from work duties), appeal denied, 478 N.W.2d 141 (Mich. 1991).

The question certified for review is whether claimant's horseplay bars
him from recovery for the resulting injury under Vermont's Workers'
Compensation Act. Rentavision contends the Commissioner misapplied the law
in concluding that claimant's horseplay-related injury was compensable. We
agree. An injury arises out of employment if it would not have occurred
but for the fact that the conditions and obligations of the employment
placed claimant in the position where he or she was injured. Miller, 161
Vt. at 214, 637 A.2d at 1073; Shaw v. Dutton Berry Farm, 160 Vt. 594, 599,
632 A.2d 18, 20 (1993). Thus, claimant must show that "but for" the
employment and his position at work, the injury would not have happened.
Shaw, 160 Vt. at 599, 632 A.2d at 20 (adopting positional-risk
doctrine).(FN1)

Although the accident here would not have happened but for claimant's
participation in the horseplay and therefore was not exclusively linked to
his employment, it also was not a

purely personal risk that would have occurred regardless of his location
and activity on that day. He was injured during work hours with a staple
gun provided for use on the job, and thus the findings support a causal
connection between claimant's work conditions and the injury adequate to
conclude that the accident arose out of his employment. See 1 Larson &
Larson, supra §§ 7.00-7.30, at 3-14 to 3-16 (when risk is neither
distinctly related to employment nor distinctly personal to claimant, trend
is to hold employer liable if conditions of employment put claimant in
position to be injured by neutral risk).

Nonetheless, claimant must also show that the injury occurred in the
course of the employment. An accident occurs in the course of employment
when it was within the period of time the employee was on duty at a place
where the employee was reasonably expected to be while fulfilling the
duties of the employment contract. Miller, 161 Vt. at 215, 637 A.2d at
1073. Thus, while some horseplay among employees during work hours can be
expected and is not an automatic bar to compensation, the key inquiry is
whether the employee deviated too far from his or her duties. See Jean
Fluet, Inc. v. Harrison, 652 So. 2d 1209, 1211 (Fla. Dist. Ct. App. 1995).

The Commissioner must therefore consider (1) the extent and
seriousness of the deviation; (2) the completeness of the deviation (i.e.,
whether the activity was commingled with performance of a work duty or was
a complete abandonment of duty); (3) the extent to which the activity 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 horseplay. See 2
Larson & Larson, supra § 23.00, at 5-178; Petrie, 466 N.W.2d at 716. The
Commissioner found that although shooting staples was common among
employees, such activity was not considered acceptable behavior by
Rentavision. She made no finding concerning whether Rentavision knew that
staple-shooting occurred at work, but did find that claimant made material
misrepresentations of fact designed to avoid an inference of horseplay or
inappropriate behavior in order that he might obtain workers' compensation
benefits. Claimant makes no showing that shooting staples at

fellow employees was an accepted part of claimant's employment or furthered
Rentavision's interests. Cf. Kenney v. Rockingham Sch. Dist., 123 Vt. 344,
347-48, 190 A.2d 702, 704 (1963) (holding that injury arose out of and in
the course of employment where claimant teacher sustained injury while
voluntarily enrolled in course to improve teaching skills).

The facts show that the accident was unrelated to any legitimate use
of the staplers at the time, indicating there was no commingling of the
horseplay with work duties. The Commissioner focused on the slack time
inherent in claimant's job, but this factor alone is not dispositive.
Although some horseplay was reasonably to be expected during idle periods
between customers, the obvious dangerousness of shooting staples at fellow
employees and the absence of connection between duties as a salesperson and
the horseplay events indicates the accident occurred during a substantial
deviation from work duties. Therefore, we reverse the Commissioner's
award.

Reversed.

FOR THE COURT:

_______________________________________
Associate Justice

-------------------------------------------------------------------------------
Footnotes

FN1. Shaw, a migrant farm worker who was stabbed by a fellow employee
in a bunkhouse provided by the employer was awarded compensation because
the injury arose out of the employment, as the workers would not have been
in the bunkhouse but for their employment. 160 Vt. at 599, 632 A.2d at 20.
Whether the injury occurred in the course of the claimant's employment was
not raised on appeal. Id. at 596, 632 A.2d at 18.

---------------------------------------------------------------------------
Dissenting

No. 96-211

Brian Clodgo Supreme Court

On Appeal from
v. Department of Labor and
Industry

Rentavision, Inc. January Term, 1997

Mary S. Hooper, Commissioner

Andrew C. Boxer of Kiel & Associates, Springfield, for plaintiff-appellant

Kerry G. Spradlin, Bennington, for defendant-appellee

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Allen, C.J.
(Ret.), Specially Assigned

MORSE, J., dissenting. I respectfully dissent. The Court reverses a
decision of the Commissioner of the Vermont Department of Labor and
Industry awarding workers' compensation benefits for an injury sustained
while claimant was engaged in "horseplay" with another employee. The basic
criteria of analysis utilized by the Commissioner are not disputed by the
Court. Rather, the Court disagrees with the Commissioner's application of
the law to the facts, holding that the horseplay constituted a substantial
deviation from the course of employment and therefore was not compensable.

Under settled standards of review, the Court has stepped out of its
proper role. The Court is not to second-guess the Commissioner's
conclusions. The Court's duty, rather, is to affirm the judgment if the
facts fairly and reasonably support it. See Kenney v. Rockingham Sch.
Dist., 123 Vt. 344, 348, 190 A.2d 702, 705 (1963). Where reasonable minds
might honestly disagree about whether the injury was sustained in the
course of employment, we must

defer to the judgment of the Commissioner. See Id.

As noted, the Court does not take issue with the general legal
standard adopted and applied by the Commissioner. Under that standard,
when a claimant's injury occurs in the course of horseplay and the claimant
was an active participant, the claimant must not have "substantially
deviated" from the work if the injury is to be considered sustained in the
course of employment. See 2 A. Larson & L. Larson, Workers' Compensation
Law § 23.20, at 5-183 (1997). The criteria used in making this
determination are as follows: (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. Id. § 23.00,
at 5-178.

With respect to the extent and seriousness of the deviation, as well
as its completeness, the Commissioner found that claimant and his fellow
employee had completed virtually all the work that needed to be done in the
absence of customers and that business was very slow that day. When the
injury occurred, claimant and his fellow employee were in a period of
enforced idleness while they waited for customers. They were not actively
pursuing any specific tasks and were passing the time as required by their
jobs. As Larson points out, when there is a lull in work, there are no
duties to abandon. During such periods, the deviation can be more
substantial than at other times when an employee may be actively pursuing a
task directly related to employment. Id. § 23.65, at 5-219, 5-226-227.
The Commissioner could thus reasonably conclude that the horseplay in this
case did not constitute an abandonment of duties or even a serious
deviation from the demands of work at that time of day.

Regarding the extent to which such horseplay had become an accepted
activity, the Commissioner found that it had been a commonplace occurrence
at the store. Although the executive assistant to defendant's president
testified that claimant's horseplay was not considered

acceptable behavior, he acknowledged that an employee would not be fired
for engaging in such activity. The Commissioner thus reasonably concluded
that the horseplay as engaged in by claimant, while not condoned by the
employer, was a tacit part of employment. See Jean Fluet, Inc. v.
Harrison, 652 So. 2d 1209, 1212 (Fla. Dist. Ct. App. 1995) (finding that
activity of "nail tossing," though not expressly tolerated, was
sufficiently commonplace to be impliedly tolerated); Industrial Comm'r v.
McCarthy, 68 N.E.2d 434, 435-36 (N.Y. 1946) (finding that particular
horseplay engaged in by waiters was more or less customary and had become
part and parcel of employment).

Finally, the Commissioner could reasonably conclude that work in a
retail establishment might be expected to include such horseplay. The
Commissioner characterized the claimant and his fellow employee as
"suffering through a very slow day in a retail establishment," having
quoted Larson as noting that "idleness breeds mischief, so that if idleness
is a fixture of the employment, its handmaiden mischief is also." (Quoting
2 Larson & Larson, supra § 23.65, at 5-219.) Retail work necessitates
passing time if there are no customers demanding attention. "Employers,
whose work requires that men wait upon the job for work conditions, ought
not to be heard to say that an accident, occurring out of the very
conditions presented by the required waiting, is not compensatory."
Gillmore v. Ring Constr. Co., 61 S.W.2d 764, 766 (Mo. Ct. App. 1933). The
Commissioner's determination that the nature of the business lent itself
to the horseplay in question was fairly and reasonably supported by the
facts.

In sum, the Commissioner applied the proper legal standard to the
facts, and the evidence fairly and reasonably supports the Commissioner's
conclusion, a conclusion that, I might add, is a reasonable one given the
policy of the law to help alleviate the consequences of injury in the
workplace. It is not our prerogative to reverse the Commissioner's
decision merely because we would have reached a different conclusion. We
must, in these circumstances, defer to the judgment of the administrative
agency charged with the initial decision-making responsibility. See Kenney,
123 Vt. at 348, 190 A.2d at 704-5. Therefore, I would affirm the
Commissioner's

award of compensation.

_______________________________________
Associate Justice

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