Horseplay or Assault? For Workers’ Comp, It Matters.

Workers’ compensation benefits are not available to a worker injured when he was chased and hit by a golf cart driven by a co-worker who claimed he was just horsing around.

The Virginia Court of Appeals ruled that Dennis Ocasio’s injuries on the job at Camping World RV Sales were the result of an assault that was personal, not horseplay, and thus they were not eligible for workers’ compensation. The court reversed a grant of coverage by the Virginia Workers’ Compensation Commission (VWCC) which had ruled that Ocasio’s injuries were the result of horseplay based upon the stated intent of Gunnar Tazelaar, the co-worker driving the golf cart.

An injury from horseplay is presupposed to be “inherent to the injured co-worker’s employment” and automatically satisfies Virginia’s actual risk test for determining if an injury is compensable under the workers’ compensation act. However, when an employee’s injuries arise from a common law assault or battery, there must be a proven connection between the assault or battery and the employment in order for the injuries to be compensable. When the tort is purely personal to the employee, “liability rests on the tortfeasor rather than the employer.”

In July 2021, Ocasio, an operations manager for Camping World, was walking in the company’s yard while a customer followed behind in his vehicle. As he walked, Ocasio saw Tazelaar driving a golf cart in his direction. As Tazelaar accelerated toward him, Ocasio extended his arms and shouted, “What are you doing?” When Ocasio tried to step out of the way, Tazelaar turned the cart to aim it at him. Unable to evade the cart, Ocasio explained that his arms struck the side of the golf cart, his knees struck the front bumper, his hands hit the cart, and his upper body hit the frame supporting the cart’s roof. A large piece of cardboard loaded in the cart struck him in the mouth, drawing blood. He testified that he landed in a crouching position with his hands on the ground. The customer testified that Ocasio stumbled but did not fall. Ocasio alleged that the collision injured his arms and legs.

The employee driving the cart, Tazelaar, maintained he was acting without malicious intent. In a statement, Tazelaar wrote that as “a joke he thought it would be funny to tap Ocasio” with a piece of cardboard that was sticking out of the cart. But he had “gotten too much speed and when he breaked [sic] after the cardboard hit, it was too late and Ocasio had been hit with the cart.” He also said that “everybody was pranking all the time” at work and he “always did little practical jokes.”

Even so, Ocasio believed that Tazelaar intentionally struck him with the cart to kill or otherwise seriously injure him, possibly because of a conflict between Ocasio and another employee who was friends with Tazelaar. As a result, in December 2021, Ocasio sought a criminal warrant against Tazelaar. Tazelaar pleaded nolo contendere and was convicted of misdemeanor assault and battery. Tazelaar explained that he entered the nolo contendere plea to avoid a felony conviction that he “was afraid would ruin his entire life.”

Workers’ Compensation Claim

When the time came for asserting his claim for workers’ compensation benefits, Ocasio raised alternative arguments to a VWCC deputy commissioner. He claimed that Tazelaar assaulted him because of his status as an employee. Alternatively, he argued that he was an innocent victim of horseplay. If successful, he argued, either would entitle him to compensation.

The deputy commissioner denied his claim, finding that Ocasio’s injuries did not arise out of his employment. The deputy commissioner maintained that “while it certainly was Ocasio’s prerogative to pursue criminal charges, he cannot now contend the action that led to an assault conviction was merely horseplay.”

Ocasio requested review by the full VWCC, which reversed the deputy. The full commission found that “the defining characteristic of horseplay is one of intent and that the conduct, however dangerous, was done in jest.” Regardless of whether Ocasio accurately divined Tazelaar’s intent, this was never an attempt to cause injury. Tazelaar’s motivation was not malice, the panel concluded, finding that Ocasio was the “innocent victim” of the prank. Because it was mere horseplay, the commission reversed the denial of benefits.

In finding that the horseplay doctrine applied merely because Tazelaar intended his action as a prank, the VWCC construed the workers’ compensation statute too broadly, the Court of Appeals stated in reversing. If accepted, the commission’s position could foreclose workers from pursuing their common law rights in any case where the assailant plausibly claims to have acted in jest, no matter how dangerous, offensive, or unwelcome the action is, according to the appeals court. It would also create liability for employers that would normally rest on the tortfeasor. Both would undermine the purpose of the statute, the appeals court maintained.

The appeals court determined that the record supported a finding that Ocasio’s injuries were the result of a personal assault and battery and that the assault was unrelated to Ocasio’s status as an employee and his employment at Camping World. The appeals court noted that Tazelaar intended to hit Ocasio, and Ocasio was aware of the danger and tried to avoid it. What’s more, Tazelaar accelerated and turned the cart to aim it at Ocasio after he tried to escape. Ocasio and Tazelaar were not friends, nor was there evidence that the Camping World work environment exposed Ocasio to risks of being struck with a golf cart.

The appeals court further noted that while it was not equivalent to a guilty plea, Tazelaar’s acceptance of a nolo contendere plea, and his conviction, added weight to the conclusion that Tazelaar’s “prank” rose to the level of assault and battery, whatever his subjective intent.

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Workers’ Compensation