WORKER INJURED BY HORSEPLAY AWARDED COMP BENEFITS

An employee injured at work as an innocent bystander, who was not a participant in horseplay that led to her injury, was entitled to workers compensation benefits, according to the Court of Appeals of Oregon.

Jennifer Kammerer was required to walk past a guard shack and through a parking lot reserved for certain employees to reach her car. While walking through the designated parking lot with several co-workers, Ms. Kammerer was injured when one co-worker flicked a plastic tag at her, striking her right eye. She sustained trauma to her right eye. Ms. Kammerer submitted a claim for workers compensation, which the employer denied. After a hearing, a referee also denied benefits. The Workers' Compensation Board affirmed the denial.

On appeal, the court said that Oregon courts had not directly addressed whether a non-participant in horseplay may seek workers compensation. An innocent bystander engaged in normal work activities cannot be understood to have "stepped aside" from employment and may recover when assaulted on the job, the court said.

Thus, the court concluded that similar reasoning applied to an innocent victim of horseplay. An employers' acquiescence in the horseplay should have no bearing on whether a bystander is entitled to compensation, the court said. The court concluded that Ms. Kammerer was entitled to benefits.

Kammerer vs. United Parcel Service, Court of Appeals of Oregon, Aug. 23, 1995 (BI/01/F.-$10).