July 29, 2019

The Court of Appeals of New Mexico decided that injuries incurred during an episode of horseplay can be considered to be a workplace injury for the purposes of workers' compensation. The case is Motes v. Curry Cty. Adult Det. Ctr., No. A-1-CA-36048, 2018 N.M. App. LEXIS 73 (Ct. App. Nov. 28, 2018).

Amanda Motes worked as a booking specialist at the Curry County Adult Detention Center. Motes had been a booking specialist for approximately five weeks before the incident occurred. Her duties included classifying and booking new inmates, receiving and recording incoming paperwork, visitors and medications, and filing. At first, she worked the day shift while training with various supervisors, and after her training period, she was moved to the night shift. Most of the senior employees worked only day shift, so the night shift was left to less experienced employees. The only senior employees in the facility at night were located in a different department but still had supervisory control over Motes. Upon hiring, the two employees involved in this incident read and signed the safety manual which prohibited horseplay by employees and advised that horseplay “may subject” employees to disciplinary action by their department heads.

Motes noted that her co-worker, Jayson Cloud, attempted to mark her with markers and spray her with bug spray, and Motes said Cloud “would do stuff like that all the time.” Motes stated that this behavior was not unusual and that other workers would engage in horseplay during downtimes. No reports of horseplay were ever made to supervisors.

The night that Motes sustained her injuries, work was slow and she was waiting in the booking area. Hours after her shift began, the two began to attempt to mark each other with markers, as they had in the past. At one point, Cloud left the room and returned with a can of bug spray. He pretended to spray Motes and then ran into the next room. She chased him and tripped on a short staircase, breaking her right ankle and fibula.

Motes sought medical attention and reported the incident to her employer. Cloud and Motes discussed the manner in which she was injured and fabricated an account of how the incident occurred, so Motes wouldn't lose her job and receive no compensation for the injury. The County viewed the surveillance video from the night of the incident and discovered that horseplay was truly the cause of the injuries. Motes sought compensation for her injuries, arguing that they were compensable workplace injuries. Her employer argued that the injuries did not arise from the course and scope of her employment as the state statutes require, but instead the injuries resulted from non-compensable horseplay. The insurance company denied the claim.

A hearing included testimony from eyewitnesses that had seen previous acts of horseplay, the initial workers' compensation judge ruled in favor of the employee. The judge found that “the injury took place during normal work hours and on Employer's premises, that Cloud had engaged in horseplay with Worker on previous occasions, and that Employer had not counseled either Cloud or Worker (Motes) concerning horseplay at any time prior to the incident” and “Employer did nothing to curtail the repeated horseplay at any time prior to the incident.”

The Employer countered this, stating that it had no knowledge of horseplay in the past. The appeals court affirmed the decision of the judge, and cited several similar cases, stating that the record indicates that the horseplay was brief and took place close to Motes' work station, and that horseplay seems to have become an expected part of the environment. The state Supreme Court declined an appeal in May 2019.

Editors Note: The initial intent of workers' compensation insurance is to provide compensation that occurs in the scope and course of a workers' employment. Horseplay is generally not going to be covered by traditional workers' compensation. This case and the others cited differ from the norm though, as the horseplay in those cases occurred on a regular basis, is expected to occur on certain shifts, and becomes a part of the scope and course of the employment. Although it seems counter-intuitive, horseplay can be covered by workers' compensation insurance.