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Tower v. SC Dep't of Corrections11/28/2005
Submitted November 1, 2005
AFFIRMED
In this workers' compensation case, Michelle Tower appeals a circuit court order affirming the full commission's denial of her claim for benefits. Tower, an administrative assistant for the South Carolina Department of Corrections, sought benefits under the South Carolina Workers' Compensation Act for an injury she sustained on October 30, 2002, when she had an altercation with another employee. The Department denied Tower's claim was compensable, asserting Tower's injuries resulted from horseplay that she had instigated. At issue in this appeal is whether the circuit court erred in holding substantial evidence supported the commission's finding that Tower's claim was barred by the horseplay defense. We affirm.
FACTS
Tower related the following version of the incident: While doing paperwork at her desk, she had soaked her hand in a cup of water because of a paper cut on her finger. When she stopped soaking her hand, she stood and extended her hand to flick the water off to avoid getting water on her computer or paperwork. About the same time, Thomas McQueen, an administrative manager at the Department, was meeting with Tower's supervisor near Tower's workstation. Although Tower did not intend to hit anyone with the water, some that she flicked off her fingers hit McQueen. McQueen then entered Tower's work station, sat in Tower's chair, grabbed Tower by the arms, threw her across his lap, and spanked her. Tower tried to get away and screamed at McQueen to stop. Tower sustained an injury to her neck from the incident. The injury resulted in her having an anterior cervical discectomy and fusion on January 29, 2003. Tower also missed work from the latter date until February 27, 2003, after which she returned to work part-time for four weeks.
McQueen and Sammie Metts, Tower's supervisor, gave a different account of the incident. They both contended that Tower called McQueen over and began flicking drops of water at him from across her desk. Both also stated that McQueen and Tower had teased each other on previous occasions.
Tower filed a Form 50 seeking workers' compensation benefits, alleging she was injured in the course of her employment on October 30, 2002. The Department filed a Form 51 with the commission denying Tower's injuries were compensable.
The single commissioner awarded Tower workers' compensation benefits, finding McQueen was the aggressor by making "a wholly inappropriate response to [Tower's] action of flicking water." The Department appealed, and by a two-to-one vote, an appellate panel of the commission reversed the single commissioner's order, finding (1) Tower was injured as the result of her instigation of horseplay; (2) both Tower and McQueen had behaved inappropriately; and (3) although McQueen's actions were inappropriate to a greater degree than Tower's, his culpability did not alter the fact that Tower had been the instigator. Tower then appealed to the circuit court, which upheld the order of the commission, finding all activity of both Tower and McQueen constituted horseplay and had been instigated by Tower.
DISCUSSION
1. We hold the circuit court correctly determined substantial evidence supported the commission's findings that Tower engaged in horseplay and that Tower's conduct barred her from recovering workers' compensation benefits.
"Horseplay is a term used to describe 'pranks and practical jokes which are frequently indulged in by congregated workmen." Concerning horseplay, " courts generally distinguish between aggressors or instigators, who are not compensated when injured, and nonparticipating victims
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