IN THE SUPREME COURT OF IOWA

No. 09–0426

Filed July 23, 2010

XENIA RURAL WATER DISTRICT and

EMCASCO INSURANCE COMPANY,

Appellees,

vs.

NORMAN VEGORS,

Appellant.

Appeal from the Iowa District Court for Polk County, Robert 

Hutchison, Judge.

Workers’ compensation claimant appeals district court denial of 

benefits based on the willful injury affirmative defense in Iowa Code 

section 85.16(3) (2003). DISTRICT COURT JUDGMENT AFFIRMED IN 

PART AND REVERSED IN PART; CASE REMANDED.

Tom L. Drew of Drew Law Firm, P.C., Des Moines, and Kristin H. 

Johnson, Clive, for appellant.

Iris Post of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des 

Moines, for appellee.
2

STREIT, Justice.

An employer claims it is not responsible for injuries sustained 

when a worker got hit by a truck driven by a fellow employee. The 

district court reversed the industrial commissioner’s award of worker 

compensation benefits based on Iowa Code section 85.16(3) (2003), an 

affirmative defense for willful injury. We reverse the district court in part

and remand the case to the industrial commissioner for a determination 

of whether the claimant proved he did not substantially deviate from the 

course of employment.

I. Background Facts and Prior Proceedings.

Norman Vegors worked as a machine inspector for Xenia Rural 

Water District, a company that installs rural water lines. Vegors was 

injured at work after a coworker, Casey Byrd, hit him with a pickup 

truck. Vegors had his hands full and “wiggled [his] butt” at Byrd. Vegors 

testified that he did so to acknowledge or say hi to Byrd. Vegors then 

leaned over the bed of his own truck. After this, Byrd attempted to bump 

Vegors with the mirror of his truck but instead hit Vegors with the truck 

bed.

Vegors testified that he and Byrd commonly acknowledged each 

other even when their hands were full, including, for example, waving the 

boom of the track hoe at the other. Xenia employees testified that Vegors 

had been involved in a prior incident for which he was disciplined and 

that he admitted to his supervisor that he and Byrd had just been 

goofing around.

Vegors sought workers’ compensation benefits, and Xenia 

contested benefits, arguing Vegors was barred from recovering because 

he engaged in horseplay and asserting the affirmative defense of willful 

injury. The deputy commissioner held that Xenia, as the employer, had 
3

the burden to prove the defense of horseplay. The deputy commissioner 

found Vegors intended to shake his hind end as a means of 

communication and not to initiate, instigate, or participate in the 

horseplay which led to the injury, and, therefore, recovery of workers’ 

compensation benefits was not barred. The commissioner affirmed the 

decision to award benefits and, although the deputy had not discussed 

it, separately addressed the affirmative defense found in section 85.16(3) 

barring compensation when injury is caused by the “willful act of a third 

party directed against the employee for reasons personal to such 

employee.” The commissioner held the defense did not apply because a 

coworker is not a third party.

Xenia sought judicial review. The district court addressed the 

question of whether “the agency erred in finding that petitioners did not 

meet their burden of proof that the claimant’s alleged injury was the 

result of horseplay, and that the petitioners did not prove an affirmative 

defense pursuant to Iowa Code § 85.16(3).” The district court reversed 

and held Vegors was barred from receipt of benefits. Vegors appealed.

II. Scope of Review.

An appeal of a workers’ compensation decision is reviewed under 

standards described in chapter 17A.19(10). Iowa Code § 86.26; Mosher 

v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 508 (Iowa 2003). “We 

review the district court decision by applying the standards of the [Iowa] 

Administrative Procedure Act to the agency action to determine if our 

conclusions are the same reached by the district court.” 

Locate.Plus.Com, Inc. v. Iowa Dep’t of Transp., 650 N.W.2d 609, 612 (Iowa 

2002). A reviewing court may reverse the decision of the workers’ 

compensation commissioner if it is unsupported by substantial evidence 

in the record. Iowa Code § 17A.19(10)(f).
4

Under chapter 17A, when the legislature has “clearly . . . vested” 

an agency with authority to interpret a statute, this court will only 

reverse a decision of statutory construction which is irrational, illogical, 

or wholly unjustifiable. Iowa Code § 17A.19(10)(l). When the agency has 

not “clearly been vested” with such authority, this court will review 

questions of statutory interpretation for errors at law. Iowa Code 

§ 17A.19(10)(c).

The workers’ compensation commissioner is generally charged by 

the legislature with the duty to “[a]dopt and enforce rules necessary to 

implement” workers’ compensation laws. Iowa Code § 86.8. We have 

previously found that the legislature did not delegate the interpretation of 

chapter 85 to the commissioner. Mycogen Seeds v. Sands, 686 N.W.2d 

457, 464 (Iowa 2004); see also Rojas v. Pine Ridge Farms, L.L.C., 779 

N.W.2d 223, 231 (Iowa 2010) (“It is well-settled law that the legislature 

did not clearly vest the workers’ compensation commissioner with the 

power to interpret the workers’ compensation statutes.”). We recently 

clarified in Renda v. Iowa Civil Rights Commission, ___ N.W.2d ___, ___

(Iowa 2010), that the court must also determine whether the agency has 

been vested with authority to interpret the relevant phrases and 

individual statutes. Here, the agency’s analysis involved the 

interpretation of Iowa Code section 85.3(1) to determine whether the 

employee’s injuries were sustained “arising out of and in the course of 

the employment.” The agency also interpreted Iowa Code section 

85.16(3), specifically the term “third party.”

Although the legislature has not provided an explicit written 

statement regarding the workers’ compensation commissioner’s

authority, we must determine whether the legislature clearly vested the 

agency with authority to interpret the statutes at issue. Iowa Code 
5

§ 17A.19(10)(c), (l). After examining chapter 85, we find the workers’ 

compensation commissioner is not clearly vested with the authority to 

interpret Iowa Code sections 85.3(1) and 85.16(3). As noted in Renda, 

“we have not concluded that a grant of mere rulemaking authority gives 

an agency the authority to interpret all statutory language.” Renda, ___ 

N.W.2d at ___. There is no language in either statutory section indicating 

a desire by the legislature to vest the commissioner with authority to 

interpret the subsections at issue. See Iowa Code §§ 85.3(1), 85.16(3). 

Additionally, the relevant terms—“arising out of and in the course of the 

employment” and “third party”—have “an independent legal definition 

that is not uniquely within the subject matter expertise of the agency.” 

Renda, ___ N.W.2d at ___. Therefore, we review the agency’s statutory 

interpretation here for errors at law. Iowa Code § 17A.19(10)(c).

III. Merits.

A. Burden to Establish Horseplay or Lack Thereof. Xenia, 

Vegors’s employer, argued Vegors cannot be compensated because he 

engaged in horseplay. The deputy commissioner held that Xenia had the 

burden to demonstrate horseplay because it is a defense. The deputy 

commissioner then determined Vegors had not engaged in horseplay. 

The commissioner affirmed the deputy commissioner but did not address 

the proper burden. Upon judicial review, the district court reversed the 

agency and held the claimant bears the burden to demonstrate that the 

injury arose out of and in the course of employment and therefore, to 

demonstrate the injury was not the result of horseplay. It appears the 

district court did not reach an ultimate conclusion on the merits of

whether Vegors’s alleged horseplay bars recovery because the court went 

on to hold Vegors’s recovery was barred under a separate affirmative 

defense, which we will address below.
6

Employers are required to compensate employees for “personal 

injuries sustained by an employee arising out of and in the course of the 

employment.” Iowa Code § 85.3(1). The injured employee has the 

burden of proving by a preponderance of the evidence that the injuries 

arose out of and in the course of employment. See Quaker Oats Co. v. 

Ciha, 552 N.W.2d 143, 150 (Iowa 1996). The phrase “arising out of” 

refers to the cause and origin of the injury. See Miedema v. Dial Corp., 

551 N.W.2d 309, 311 (Iowa 1996). The phrase “in the course of” refers to 

the time, place, and circumstances of the injury. Id.

Prior cases of this court suggest the injured employee must show 

he or she was not engaged in horseplay as part of the burden to 

demonstrate the injury arose out of and in the course of employment. 

See Ford v. Barcus, 261 Iowa 616, 623, 155 N.W.2d 507, 511 (1968) 

(“Horseplay which an employee voluntarily instigates and aggressively 

participates in does not arise out of and in the course of his employment 

and therefore is not compensable.”); Wittmer v. Dexter Mfg. Co., 204 Iowa 

180, 185, 214 N.W. 700, 702 (1927) (“We conclude there was evidence 

supporting the finding of the commissioner that the appellee voluntarily 

participated in the play—the jostling—that caused his fall and injury, 

and that the injury did not arise out of his employment.”).

These opinions are consistent with treatment of the horseplay 

issue in other jurisdictions. Some jurisdictions bar compensation for 

certain types of horseplay based on the “arising out of employment” 

language. See Lincoln v. Whirlpool Corp., 279 N.E.2d 596, 601 (Ind. Ct. 

App. 1972) (“[W]here the ‘horseplay’ was not acquiesced in by the 

employer, not a natural condition of the employment, and where, in fact;

the employee participated in the ‘horseplay,’ and was not, therefore, an 

innocent victim . . . we have consistently denied compensation in such 
7

cases for the reason that such activity does not arise out of the 

employment.”); 2 Arthur Larson & Lex K. Larson, Larson’s Workers’ 

Compensation Law § 23.07, at 23–13 (2009) [hereinafter Larson’s]. 

Larson’s suggests the proper analysis is to look at horseplay as 

potentially outside the “course” of employment because of a deviation. 2 

Larson’s § 23.07, at 23–13. We agree the proper analysis is whether the 

claimant substantially deviated from the course of employment, as will 

be explored more fully below. Regardless, it is clear that the prohibition 

on recovery where an injury resulted from the claimant’s horseplay stems 

from the requirement that injuries arise out of and in the course of 

employment.

Vegors argues that placing the burden upon the claimant to 

demonstrate that the injury was not the result of horseplay is 

inconsistent with general legal principles because it requires the 

claimant to prove a negative. Vegors points to Iowa Rule of Appellate 

Procedure 6.904(3)(e) which states, “[o]rdinarily, the burden of proof on 

an issue is upon the party who would suffer the loss if the issue were not 

established.” Vegors contends that if horseplay is not established, the 

employer will suffer the loss and therefore should bear the burden.

We disagree. The horseplay exception stems from the requirement 

that the injury arise out of and in the course of employment, and Vegors

will bear the loss here if he cannot meet this requirement. Employers 

may raise any number of arguments to contest an employee’s assertion

that an injury arose out of and in the course of employment. For 

example, in Quaker Oats, the employee was injured in a traffic accident 

after being paged to the plant on a Sunday to fix a mechanical problem. 

Quaker Oats, 552 N.W.2d at 147. The employer argued that the 

employee’s travel home from the plant was not in the course of 
8

employment and that the employee deviated from his employment by 

taking the more scenic route home. Id. at 150, 153. The employer’s 

arguments were meant to contest whether the injury arose out of and in 

the course of employment. The burden, however, remained on the 

employee and did not shift to the employer. Id. at 150.

Similarly, Vegors retains the burden to show his injury arose out of 

and in the course of employment. His employer, Xenia, argues that he 

has not met that burden because the injury was the result of horseplay. 

This argument does not shift the burden to Xenia.

B. Application of Horseplay Doctrine to Vegors. Vegors argues 

that even if the commissioner improperly held Xenia, the employer, had 

the burden to establish horseplay, the district court should have 

remanded for the commissioner to apply the facts to the proper burden.

The deputy commissioner held that Xenia did not meet its burden 

to demonstrate horseplay and credited Vegors’s explanation of the injury. 

On review within the agency, the commissioner noted that the deputy 

commissioner “believed claimant when he testified that his act of shaking 

his butt was intended as a means of communication and not to initiate, 

instigate or participate with a co-workers’ horseplay that lead [sic] to the 

injury.” The commissioner affirmed the award of benefits, explaining 

that although his review is de novo, he gave deference to the deputy 

commissioner’s credibility determination and that “[g]enerally, nonparticipating victims of horseplay will be compensated.” The district 

court held the agency applied the incorrect burden, but did not remand 

the case to the commissioner because the court separately determined 

Xenia had established its willful-injury defense under section 85.16(3).

Vegors argues it cannot be determined as a matter of law that 

Vegors engaged in horseplay that would bar compensation and therefore, 
9

remand is appropriate to allow the commissioner to consider the issue 

under the proper burden. See McSpadden v. Big Ben Coal Co., 288 

N.W.2d 181, 186 (Iowa 1980) (“Remand is also necessitated in order to 

permit the agency to re-evaluate the evidence, applying the correct rule of 

law, unless the reviewing court can make the necessary factual findings 

as a matter of law because the relevant evidence is both uncontradicted 

and reasonable minds could not draw different inferences from it.”

(Emphasis added.)). We agree with Vegors that it cannot be determined 

as a matter of law that Vegors participated in horseplay that barred 

recovery.

This court has held that horseplay which an employee “voluntarily 

instigates and aggressively participates in does not arise out of and in 

the course of his employment.” Ford, 261 Iowa at 623, 155 N.W.2d at 

511. Not all acts of horseplay or levity will preclude an injured employee 

from recovery. Instead, a claimant’s actions—including horseplay—will 

bar recovery under the workers’ compensation scheme when the

claimant substantially deviates from the employment. See Quaker Oats, 

552 N.W.2d at 153–54 (noting “injury is not compensable if [claimant] is 

found to have ‘deviated sufficiently from the line of duty so that his or 

her actions are foreign to the employer’s work’ ” and affirming agency 

determination of no “substantial deviation from or abandonment of the 

employment” (quoting Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 

1986)); Eagle-Picher Co. v. McGuire, 307 P.2d 145, 147 (Okla. 1957) 

(“ ‘This doctrine, that a deviation in a certain limited measure does not 

take the employee out of the course of employment, is applicable not only 

to curiosity cases, horseplay and assaults, but also to foolhardy acts.’ ”

(quoting Secor v. Penn Serv. Garage, 113 A.2d 177, 181 (N.J. Super. Ct. 

App. Div. 1955))).
10

Innocent employees who are injured as the result of another’s 

horseplay may recover. It is “clearly established that the nonparticipating victim of horseplay may recover compensation.” 2 Larson’s 

§ 23.02, at 23–2; see also Coleman v. Armour Swift-Eckrich, 130 P.3d 

111, 114–16 (Kan. 2006) (adopting rule that non-participating victim of 

horseplay may recover based on “overwhelming weight of . . . authority in 

our sister states and current legal commentary”).

For those employees who have initiated or are participating in 

horseplay, courts and commentators have suggested four considerations 

for determining whether the horseplay is a deviation from the course of 

employment that bars recovery:

“(1) the extent and seriousness of the deviation, (2) the 

completeness of the deviation (i.e., whether it was 

commingled with the performance of duty or involved an 

abandonment of duty), (3) the extent to which the practice of 

horseplay had become an accepted part of the employment, 

and (4) the extent to which the nature of the employment 

may be expected to include some such horseplay.”

Phillips v. John Morrell & Co., 484 N.W.2d 527, 530–31 (S.D. 1992) 

(quoting 1A Larson’s Wormen’s Compensation Law § 23.00 (1990) (now 2

Larson’s § 23.01, at 23–2)) (holding slaughterhouse assembly line worker 

who threw hog sperm cords at a coworker could recover for a serious 

stabbing injury sustained from the coworker). Courts have also held that 

the causal connection between a claimant’s own conduct and an injury

may be severed where there is a passage of time and the employee has 

returned to the course of employment. See Baird v. Travelers Ins. Co., 

107 S.E.2d 579, 583 (Ga. Ct. App. 1959) (upholding determination that 

claimant was entitled to compensation after being injured by supervisor’s 

horseplay where claimant’s own horseplay had taken place an hour 

earlier in a separate location); Rex-Pyramid Oil Co. v. Magan, 153 S.W.2d 
11

895, 899 (Ky. Ct. App. 1941) (upholding award of benefits to claimant 

who engaged in a waterfight on employer’s property and was afterwards 

hit by a car while crossing a highway to perform work at another site).

The inquiry should focus on the actions of the claimant.

The substantial character of a horseplay deviation 

should not be judged by the seriousness of its consequences 

in the light of hindsight, but by the extent of the workdeparture in itself. This is not always easy to do, especially 

when a trifling incident escalates or explodes into a major 

tragedy.

2 Larson’s § 23.07[3], at 23–23. The character of Vegors’s action of 

shaking his rear end—and not the serious injury resulting from being hit 

with a truck—must be analyzed to determine whether it is a deviation

sufficient to bar recovery.

It cannot be determined as a matter of law that Vegors voluntarily 

instigated or aggressively participated in horseplay to an extent that 

prevents compensation. There is evidence in the record that the 

horseplay was initiated only by Byrd or that any action by Vegors was an 

insubstantial deviation from his employment. Vegors testified that he 

acknowledged Byrd with his hind end and that he did not intend to dare 

Byrd to hit him with a truck, otherwise he would not have turned around 

and focused his attention on his work prior to being hit. The 

commissioner made a determination that Vegors meant to shake his 

posterior as a method of acknowledging his coworker. Vegors’s butt 

wiggle considered in isolation could be thought a “harmless act of levity.” 

Baltimore & Ohio R.R. v. Taylor, 589 N.E.2d 267, 274 (Ind. Ct. App. 1992) 

(affirming trial court determination that “[t]he fact that he was relieving 

the tedium of his job by a harmless act of levity does not take him 

outside the scope of his employment”). Additionally, it is claimed the 

action of Vegors’s coworker Byrd was grossly disproportionate to Vegors’s 
12

own action and the proper focus is on Vegors’s action. See Liberty Nw.

Ins. Corp. v. Johnson, 919 P.2d 529, 530, 533 (Or. Ct. App. 1996) 

(holding claimant who made a joking comment to a coworker and was 

injured when coworker twisted him to the ground in a spirit of fun was 

entitled to compensation); Mustard v. Indus. Comm’n, 792 P.2d 783, 784–

85 (Ariz. Ct. App. 1990) (holding compensation was not barred because 

the claimant did not substantially deviate from her employment when the

claimant joked that a coworker had dropped his teeth, ran when he 

good-naturedly chased her, and was hit in the back with a hammer when 

the two collided).

Because we reverse the agency determination regarding the proper 

allocation of the burden of proof, we remand to the agency to allow the 

agency to apply the proper burden to the evidence. Cf. Kohlhaas v. Hog 

Slat, Inc., 777 N.W.2d 387, 393 (Iowa 2009) (“Although it could be argued 

there is substantial evidence in the record that Kohlhaas’s current 

condition does not warrant an increase in compensation, it is fair to 

conclude the commissioner’s determination may have been influenced by 

the language in Acuity we have just disavowed. In that we have clarified 

the requirements for a review-reopening petition, we reverse and remand

. . . .”). The commissioner should evaluate whether Vegors’s action was a 

substantial deviation from his work based on the four factors identified 

above and applying the proper burden.

C. Interpretation of Iowa Code Section 85.16(3). Xenia argues 

Vegors’s compensation is also barred by Iowa Code section 85.16(3). 

Section 85.16(3) prohibits compensation where an employee’s injury was 

caused “[b]y the willful act of a third party directed against the employee 

for reasons personal to such employee.” Iowa Code section 85.16(3) is an 

affirmative defense, and, therefore, the employer bears the burden to 
13

demonstrate compensation is barred. Cedar Rapids Cmty. Sch. v. Cady, 

278 N.W.2d 298, 299 (Iowa 1979). The commissioner held that section 

85.16(3) does not apply to coworkers because they cannot be considered 

a “third party.” The district court disagreed and held that Iowa Code 

section 85.16(3) applies to willful acts by a coworker. The district court 

also held that the term “willful” requires only that the third party intend

to do the act which causes injury, not intend to injure the employee. The 

district court held that Xenia established the affirmative defense of Iowa

Code section 85.16(3) because Byrd committed a willful act injuring

Vegors for a reason personal to Vegors, and Vegors therefore could not 

recover. We must determine whether section 85.16(3) has application to 

this case.

We apply the workers’ compensation statute broadly and liberally 

in keeping with its humanitarian objective: the benefit of the worker and 

the worker’s dependents. Id. The statute’s “beneficent purpose is not to 

be defeated by reading something into it which is not there, or by a 

narrow and strained construction.” Id. We are, however, bound by the 

requirements of the statute. Id.

A limited number of states have enacted statutes comparable to

section 85.16(3). Regardless of whether states have enacted such 

statutes, “it is almost universally held that when the animosity or 

dispute which culminates in the assault is imported into the place of 

employment from the injured employee’s private or domestic life, the 

injury is not compensable, at least where the animosity is not 

exacerbated by the employment.” Commercial Standard Ins. Co. v. Marin, 

488 S.W.2d 861, 864 (Tex. Civ. App. 1972).

The potential application of section 85.16(3) in this case gives rise 

to three issues: (1) whether the statute’s reference to third parties 
14

includes coworkers, (2) whether the term “willful” requires an intent to 

injure or only an intent to do the act which causes injury, and 

(3) whether horseplay can be considered “reasons personal” to the 

injured employee.

With regard to the first issue, Vegors suggests the phrase “third 

party” cannot include coworkers because elsewhere in the workers’ 

compensation statute these terms are referred to separately. In section 

85.22, the statute explains that when an injury creates a legal liability 

against “some person, other than the employee’s employer or any 

employee of such employer,” the injured employee “may also maintain an 

action against such third party for damages.” Vegors points to this use 

of the phrase “third party” as evidence that the term third party was not 

meant to include coworkers. We do not find this example instructive. 

The phrase “third party” in section 85.22 is preceded by “such,” which 

refers the reader to the earlier definition of “person”, which specifically 

excluded coworkers. Additionally, the language of section 85.16(3)

requires that the action of the third party be taken for “reasons personal 

to the employee,” suggesting that the purpose of the section was to 

prohibit compensation where the injury stems from a personal dispute or 

animosity stemming from the injured employee’s life outside of work that 

is not caused or exacerbated by the employment. This is equally 

applicable to coworkers who may have some personal dispute outside of 

work which culminates in an incident while at work. We see no reason 

in the language of the statute to limit its application to third parties who 

are not coworkers.

The second issue concerns the proper definition of “willful.” The 

district court held the term willful required only that the third party 

intend to do the act, not that the third party intend to injure the 
15

claimant. This court has recognized that willful is susceptible to two 

definitions. One possible definition of willful is “ ‘an act which is 

intentional, or knowing, or voluntary, as distinguished from accidental.’ ” 

Iowa Beta Chapter of Phi Delta Theta Fraternity v. State, 763 N.W.2d 250, 

263 (Iowa 2009) (quoting United States v. Murdock, 290 U.S. 389, 394, 54 

S. Ct. 223, 225, 78 L. Ed. 381, 385 (1933), overruled in part on other 

grounds by Murphy v. Waterfront Comm’n, 378 U.S. 52, 73, 84 S. Ct. 

1594, 1606, 12 L. Ed. 2d 678, 692 (1964)). A second potential meaning 

is “ ‘an act done with a bad purpose; without justifiable excuse; 

stubbornly, obstinately, perversely.’ ” Id. (quoting Murdock, 290 U.S. at 

395, 54 S. Ct. at 226, 78 L. Ed. at 385). The interpretation of the word 

“willful” is influenced by the statutory context. Id.

Many state statutes comparable to section 85.16(3) require that 

the third party act be done with an intent to injure. See, e.g., Tex. Lab. 

Code Ann. §406.032(1)(C) (West, Westlaw through 2009 Regular and 

First Called Sessions of the 81st Legislature) (injury is not compensable if 

it “arose out of an act of a third person intended to injure the employee 

because of a personal reason and not directed at the employee as an 

employee or because of the employment”); 77 Pa. Cons. Stat. § 411(1)

(Westlaw through Act 2010–37) (injury “shall not include an injury 

caused by an act of a third person intended to injure the employee 

because of reasons personal to him, and not directed against him as an 

employee or because of his employment”). Iowa’s statute appears to be of 

the same type as these other state statutes but refers only to a “willful 

act.” However, we need not address the proper standard for a “willful 

act” because, as explained below, we hold that section 85.16(3) is 

inapplicable to the circumstances of this case.
16

With regard to the third issue, we find that Byrd’s action of hitting 

Vegors with a truck was not done for “reasons personal to the employee.” 

Courts have explained that incidents which arise between employees are 

often “part and parcel” of the working environment and will not bar 

compensation unless an employee’s action is caused by “influences 

originating entirely outside the working relation and no[t] substantially 

magnified by it.” Hartford Accident & Indem. Co. v. Cardillo, 112 F.2d 11,

17 (D.C. Cir. 1940); cf. Tex. Employers Ins. Ass’n v. Campos, 666 S.W.2d 

286, 289 (Tex. App. 1984) (“Where an employee is injured in a personal 

difficulty arising over the manner in which his work is being done, 

although the difficulty itself is not a part of the work of the employee, 

such injury is compensable . . . .”). Byrd’s action of trying to bump 

Vegors with his work truck was not based on a personal relationship 

outside the working environment.

The category of injuries barred from compensation by section 

85.16(3) is often referred to as “privately motivated assaults” or 

“imported-quarrel cases.” 1 Larson’s § 8.02, at 8–43. As Larson’s

explains, “[a] familiar example of private animosity is that engendered by 

or about spouses.” Id. While we do not rule out the possibility of a 

situation where horseplay was based on motivations imported to the 

working environment, typically it is the working environment itself which 

leads coworkers to engage in momentary jokes or asides. As Justice

Cardozo explained,

Whatever men and boys will do, when gathered together in 

such surroundings, at all events if it is something reasonably 

to be expected, was one of the perils of his service. We think 

with Kalisch, J., in Hulley v. Moosbrugger, . . . “[f]or workmen 

of that age or even of maturer years to indulge in a moment’s 

diversion from work to joke with or play a prank upon a 

fellow workman, is a matter of common knowledge to every 

one who employs labor.”
17

Leonbruno v. Champlain Silk Mills, 128 N.E. 711, 711 (N.Y. 1920)

(quoting Hulley v. Moosbrugger, 93 A. 79, 79 (N.J. Sup. Ct. 1915), rev’d, 

95 A. 1007, 1010 (N.J. 1915)); see also 2 Larson’s § 23.02, at 23–3 (“Mr. 

Justice Cardozo’s opinion in the Leonbruno case is generally credited 

with having ushered in the modern rule.”).

Section 85.16(3) is limited to actions which are taken “for reasons 

personal” to the employee and not as a consequence of the working 

environment. There is no evidence in the record that Byrd and Vegors

had any relationship outside of work other than as coworkers or that 

Byrd hit Vegors for any reason imported from outside the working 

environment. Therefore, as a matter of law, the affirmative defense in 

section 85.16(3) does not bar Vegors’s claim for benefits.

IV. Conclusion.

Claimant has the burden to establish his injuries arose out of and 

in the course of employment. A claimant cannot recover for injuries 

stemming from an employee’s instigation or aggressive participation in 

horseplay that constitutes a substantial deviation from his employment 

because such actions do not arise out of and in the course of the

employment. Therefore, the claimant bears the burden to establish he or 

she did not substantially deviate from the employment by instigating or 

aggressively participating in the horseplay. Because the commissioner 

incorrectly applied the burden of proof, we remand to the district court 

for remand to the commissioner for reconsideration under the current 

record.1

 1We note that Xenia raised two additional issues on judicial review that were not 

addressed by the district court: (1) whether the deputy commissioner erred in finding 

that the respondent was entitled to a permanent total disability award and (2) whether 

the deputy commissioner erred in finding that the claimant’s left knee injury was 

causally related to the June 2, 2005 incident. Because we remand to the district court 

for remand to the commissioner on the issue of entitlement to compensation, these 

 Additionally, Vegors’s claim is not barred by section 85.16(3) 
18

because the action of his coworker that resulted in his injury was not

done for reasons “personal” to Vegors.

DISTRICT COURT JUDGMENT AFFIRMED IN PART AND 

REVERSED IN PART; CASE REMANDED.

________________________________

issues need not be addressed by the district court until Vegors’s entitlement to benefits 

is determined.