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Horseplay: Ain't What It Used To Be

Horseplay: It ain't what it used to be.

by Scott M. Brown

On September 18, 2015 the Court of Appeals ("COA") published its decision in Hall Contracting of Ky., Inc. v. Huff, 2015-CA-000375-WC. ALJ Gott found that the injury was the result of Plaintiff's horseplay, and dismissed the claim. The Board reversed, the COA agreed with the Board.

The facts. Sunrise was at 6:13 a.m., the sky was clear per the meteorological report in evidence. The injury occurred at about 7:00 a.m. Huff and another worker found a round, black object the size of a tennis ball. Per Huff he looked it over for identifying marks, and lit his lighter to get a better look, the object blew up in his hand, severely injuring it. It was a firework. The ALJ rejected Huff's explanation. "The ALJ held that Huff had ventured outside the course and scope of his employment when he ignited his lighter 'to amuse' himself and White with what he believed was a smoke bomb." The Board, which does not have fact-finding powers, concluded that "as a matter of law" Huff was in the course of his employment, as he had a duty to determine if the object was dangerous, though he exercised poor judgment.

Not surprisingly, Hall Contracting appealed the Board's decision, arguing that they substituted their judgment for the ALJ's. The COA was no help though. "Huff's testimony was unequivocal that any foreign object found at the workplace had to be retrieved and inspected." The Court concluded that: "No indication of horseplay was present other than in the speculation of the ALJ and in the self-serving interpretation of events by Hall Contracting." As such Justice Stumbo affirmed the Board.

In his concurring opinion (an unusual occurrence with the COA), Justice Nickell concluded that the exploding firework was an unintended, unforeseen, and unfortunate accident. He also decided to define "horseplay" for us. In sum, when it's "a 'stupid decision' or an act of ignorance, poor judgment, negligence, investigation, curiosity, impulse, or otherwise, it is not 'horseplay.'

In a dissent, Justice VanMeter concluded that the Board substituted its judgment for that of the ALJ. Hall's Human Resource Manager testified: 'Huff told her that he had lit the object, and that the reason he had done so was because he thought it was a smoke bomb.' The ALJ found that Huff was aware the object was a firework or smoke bomb and that he was trying to light it. 'When one of two reasonable inferences may be drawn from the evidence, the finders of fact may choose.' Jackson v. Gen. Refractories Co., 581 S.W.2d 10, 11 (Ky. 1979). Furthermore, KRS 342.285(2) explicitly provides that "[t]he board shall not substitute its judgment for that of the [ALJ] as to the weight of the evidence on questions of fact."

Comment: I find this decision frustrating on levels. I can't believe that the COA would both make this decision, then also publish it. VanMeter is the only one that got it right. The ALJ should be affirmed based upon the HR Manager's testimony. Plaintiff admitted to her that he lit the object because he thought it was a smoke bomb. Period. We're done. I'll even go so far as to predict that the Supreme Court will affirm ALJ Gott and reverse the Court of Appeals.

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