Clodgo v. Rentavision, Inc.

Annotate this Case
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



  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.                                       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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