Work Horseplay Covered Under Workers' Comp

March 16, 2004 (PLANSPONSOR.com) - An employee who drove a go-cart into a parked truck, breaking his ankle, at the request of his boss can recover workers' compensation benefits.

The New Jersey Supreme Court based its ruling on an amendment to the state’s workers’ compensation statute that permits benefits to be paid for recreational injuries.   Under the revised workers’ compensation statute though, the activity must be a regular incident of employment and produce a benefit to the employer, beyond improvement in employee health and morale, for the injuries to be covered, according to a New Jersey Law Journal report.

However, in the ruling, the New Jersey high court ruling enlists a new test – whether, in the mind of the employee, the activity is expected to be engaged on the work site by their supervisor.   In this case, the court found a recreational activity becomes work when it occurs on the work site and at the employer’s direction.

“[We] hold that when an employer compels an employee to participate in an activity that ordinarily would be considered recreational or social in nature, the employer thereby renders that activity a work-related task as a matter of law,” Justice James Zazzali wrote for the unanimous court in Lozano v. De Luca Construction Co.

This is due in large part to the “imbalance of power between the employer and the employee,” the court’s opinion said, since the employee can feel indirect pressures from their boss just as “powerful as an explicit order.”  

In this case,PorfirioLozanodid not know how to drive and he depended on his boss, Frank DeLuca, for transportation to and from jobs. They were working on a house with a circular track and go-carts, and at the workday’s end, DeLuca told Lozano to drive one of the carts. Lozano protested that he did not know how to drive, but DeLuca insisted, twice saying, “get in.” Lozano took that as a directive and drove the go-cart and ended up crashing it into a parked truck, breaking his ankle.

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