Article by Anne M. Hammil Pasqua

In Phillips v. PMB Safety & Regulatory Inc., the Benefits Review Board reversed the denial of benefits under horseplay, unauthorized break and intentional injury defenses.

The claimant worked as a galley hand on an oil rig. He was on break when attacked by Mr. Fruge, a co-worker. Fruge was under the mistaken impression that the claimant had previously thrown water on him. The claimant sustained injuries to the shoulder and ankle. He sought benefits under the Outer Continental Shelf Lands Act (OCSLA). The Administrative Law Judge (ALJ) denied benefits finding that the claimant was not credible, the injuries occurred during non-work-related conduct on break and the third-party’s intentional or negligent conduct was an intervening cause.

The Benefits Review Board (BRB) found that the ALJ’s denial based upon the taking of a break, be it authorized or not, did not remove the claimant from the course of his employment. The BRB noted that the incident occurred in a place that he would reasonably be expected to be in the course of his employment and not in an “unanticipated path of new risks not inherent in this employment situation,” citing to Durrah.

The BRB next addressed whether horseplay severed the employment nexus. The ALJ associated horseplay with the claimant’s conduct being outside the scope of employment in denying benefits. The BRB noted that the attack was unprovoked and the employer’s disapproval was post incident. The BRB noted that fight-related injuries between co-workers are compensable “where employer presents no evidence that the injured employee had any personal or social contacts with the assailant outside of work.” The BRB found that there was no evidence of non-work-related contact between the claimant and Fruge. It concluded that horseplay was not a basis to deny benefits.

The BRB considered the ALJ’s denial based upon the act of a third-party’s intentional or negligent conduct. The BRB explained that, “The inquiry into ‘intentional or negligent’ conduct arises only when an employer alleges that a subsequent event constitutes an intervening cause of claimant’s injury. It does not apply to whether the original injury is compensable, as the Act provides that benefits are payable “irrespective of fault as cause for the injury.” 33 U.S.C. §904(b). Accordingly as no subsequent event was involved in Phillips, this defense was not applicable.

The BRB further highlighted that Fruge was not a third party but a co-worker despite being employed by separate subcontractors. Both the claimant and Fruge worked in the oil rig for the same company, Chevron. Chevron had the right to fire both claimant and Fruge. Moreover they were both fired by Chevron following this incident.

The BRB concluded that there was no basis for the benefits to be denied and that the employer failed to produce evidence sufficient to rebut the Section 20(a) presumption that the injury arose in the course of employment. The BRB vacated the denial of benefits and remanded the case.