Workers’ comp may not cover employee horseplay

A Delaware oil refinery worker injured in a practical joke by his co-workers may be allowed to sue them, the state Supreme Court has ruled.

Stephen Grabowski was injured in October 2000 when three co-workers grabbed him in a bathroom at the Delaware City refinery, forced him to the ground and wrapped him from ankles to shoulders in duct tape.

Grabowski suffered injuries that required surgery on his lower back and right knee, as well as post-traumatic stress that required counseling.

While a worker injured while horsing around on the job generally is precluded from receiving workers compensation, a Superior Court judge ruled that Grabowski was entitled to benefits because he was a “nonparticipating victim” of horseplay by his co-workers.

While Grabowski has received more than $300,000 in workers compensation for his injuries, the judge said he could not pursue a negligence claim against William Mangler, David Smith and Joseph Ziemba because he was injured during the course of his employment.

Under state law, workers’ compensation usually is the exclusive remedy for a job injury. Grabowski argued that he was injured outside the scope of his normal job duties, and that the workers’ compensation law does not preclude a tort claim under those circumstances.

In remanding the case this week, the state Supreme Court said the trial judge had failed to analyze sufficiently whether their actions constituted horseplay that was outside the course and scope of employment.

Chief Justice Myron Steele wrote for a three-judge panel that there are some instances “where co-employees’ horseplay may be so unreasonable and so unexpected that it is not within the co-employees’ course and scope of employment. Under these circumstances, a claimant may bring a private tort action against his co-employee(s).”