When Horseplay Pays: A Sixty-Second Seminar in Workers’ Compensation Claims Handling

Every so often, a case dramatically alters what we thought we knew about “the rules of the game.” This is the story of Marisol Resendiz v. La Corneta, Inc. (2021 Cal. Wrk. Comp. P.D. LEXIS 207), the WCAB case that forever changed our understanding of the horseplay defense.

On May 19, 2019, Marisol Resendiz, a food handler employed by La Corneta, Inc., was injured as she tumbled down a flight of stairs at her place of employment. During the workday, Ms. Resendiz had gone upstairs to use the restroom. On her way back down, she grabbed onto the handrails on each side of the staircase. She then lifted both feet off the ground and began swinging her legs back and forth in the air, making her way down the stairwell by moving her hands down the two rails. During one leg swing, she lost her grip and tumbled down the stairs, resulting in injury to her low back and spine.

The employee truthfully admitted that she fell while swinging her legs. She repeated her admission during her deposition and in her trial testimony. In addition, the staircase was monitored by a closed-circuit camera and the entire incident was caught on film. There is no doubt that the worker fell while swinging her legs instead of walking down the staircase in a normal manner.

The employer denied workers’ compensation liability based on a “horseplay” defense, as the employee’s activity was neither condoned nor approved by the employer, nor was it ever contemplated in the employment agreement. Nonetheless, the WCJ rejected the horseplay defense and found the injury compensable. A petition for reconsideration was dismissed as untimely, but the commissioners commented that had the appeal been accepted they would have ruled in favor of the injured worker!

The rationale for compensability focused on the employee’s performance of a task (descending a staircase) in an unapproved and unauthorized manner. The Board explained that this activity in itself did not remove the employee from her employment relationship. Several past case law decisions were referenced where employees were granted benefits when injured while performing duties in an unapproved, unauthorized, and in some cases, illegal manner. The bottom line is that the employee was required to return to the ground floor from the 2^nd floor restroom to resume her work duties, but rather than walking safely down the stairs, she decided to do so in an unapproved and unauthorized manner. The Board commented that per case law, the worker was within the course and scope of employment when injured.

Let’s explore the meaning of this decision a bit further. Under the rationale expressed in the Resendiz decision, we can confidently proclaim that had the worker acted like a gymnast by doing backflips down the staircase, any injuries sustained would likewise be compensable. The same argument would hold true had the worker been injured while acting like a tightrope walker by balancing and walking down the handrail instead of using the stairs. In fact, the injury would be compensable even if the employee had acted like Wonder Woman by bypassing the stairs completely and throwing herself off the 2^nd story landing to the ground below, as this too would just be another way of returning downstairs in an unauthorized and unapproved manner. According to the rationale in Resendiz, injuries sustained while acting like a gymnast, a tightrope walker, or Wonder Woman would still be within the course and scope of employment and therefore compensable. Needless to say, this decision has totally changed the way workers’ compensation professionals view the horseplay defense. With that said, it is now up to the Legislature to amend the Labor Code to clearly define what constitutes horseplay, as such a definition does not currently exist in workers’ compensation law.