Opinion by
The sole issue in this review from an order of the Industrial Claim Appeals Panel is whether claimant’s injury, which occurred while he became involved in horseplay with co-employees, arose out of his employment. A divided division of the Panel concluded that it did, and affirmed the order of the Administrative Law Judge (ALJ) awarding benefits. We affirm.
The following facts are undisputed. Christopher Bingham (claimant) was employed as a busboy for Lori’s Family Dining (petitioner), and his duties included emptying trash into a dumpster. On the date of his injury, claimant was carrying boxes to the dumpster when he met with two or three kitchen coworkers and “became engaged in conversation and teasing” with one of them. The “teasing escalated to a physical level” when claimant’s leg was caught and held as he kicked at a co-worker. Claimant then fell to the ground and broke his right aim.
The ALJ found that “horseplay” was common among the employees of Lori’s, that the employer did not approve of it, and that the managers verbally warned employees to stop such conduct. However, he also found that, although employer had a policy that an employee would be “written up” three times and then fired for horseplay, no employee had ever been disciplined under that policy. Accordingly, the ALJ concluded that claimant’s conduct did not constitute a deviation from employment sufficient to preclude an award of workers’ compensation benefits.
The ALJ further concluded that horseplay was an accepted, although not an endorsed, part of the employment because employer did not take violations of its own rule against horseplay seriously. Consequently, it concluded that claimant’s violation of that policy was not “willful” within the meaning of § 8-42-112(l)(b), C.R.S. (1994 Cum.Supp.). Accordingly, the ALJ determined that imposition of a 50% penalty for violation of a safety rule was not warranted. A majority of the Panel affirmed.
A dissenting Panel member disagreed with the ALJ’s reasoning that the employer’s failure to take more severe disciplinary action, as permitted by its policy, established that the claimant did not depart from his employment when he engaged in horseplay. That member concluded that a reasonable employee would understand from the employer’s repeated verbal warnings that such conduct was not acceptable, without needing to have the seriousness of the admonition proven to him by more severe disciplinary action. Thus, this member concluded that the claimant stepped aside from his employment when he began voluntarily engaging in the horseplay.
I.
It is undisputed that claimant’s injury occurred “in the course of’ employment. The issue presented here is whether the injury “arose out of’ claimant’s employment, i.e., whether there exists a causal connection between the work conditions and the injury.
Petitioners first contend that the claimant departed from the scope of his employment by engaging in “horseplay.” We disagree.
Whether an injury arises out of employment is a question of fact and is resolved by examining the totality of the cir
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cumstances.
Triad Painting Co. v. Blair,
An activity that is sufficiently related to the circumstances under which the claimant normally performs his or her duties is reasonably characterized as an incident of employment or a condition of the workplace.
City of Boulder v. Streeb,
Horseplay regularly occurs in the workplace and frequently results in compensation cases involving industrial injury claims.
Woods v. Asplundh Tree Expert Co.,
A four-part test is applied to analyze whether initiation of, or participation in, horseplay is a deviation: (1) the extent and seriousness of the deviation; (2) the completeness of the deviation, i.e., whether it was commingled with the performance of a 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 horseplay. 1A A. Larson, Workmen’s Compensation Law, supra; Prows v. Industrial Commission, supra.
Here, claimant’s deviation was neither prolonged nor geographically distant from the place of employment. Rather, the deviation was commingled with claimant’s duty to empty the trash.
As to the remaining elements of the test, the evidence was undisputed that horseplay was customary and countenanced by the employer, as demonstrated by its failure to enforce its policy regarding imposition of disciplinary action for that activity. Thus, such activity had become a regular part of the employment and was sufficiently related to the circumstances under which claimant normally performed his duties as to be reasonably characterized as an incident of employment or a normal condition of the workplace.
Since the findings and evidence support the Panel’s majority conclusion that the claimant’s injury is compensable as arising out of his employment, it is binding on review.
Both
McKnight v. Houck,
II.
Petitioners also contend that the ALJ erred in failing to reduce claimant’s benefits by 50% for his failure to obey a safety rule. We disagree.
A safety rule does not have to be either formally adopted or in writing to be effective.
Bennett Properties Co. v. Industrial Commission,
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The intent of § 8-42-112(1) (b) is to establish a penalty to deter misconduct.
Wild West Radio, Inc. v. Industrial Claim Appeals Office,
The most frequent ground for rejecting ■imposition of a penalty, whether it be for violation of a safety rule or willful misconduct, is the lack of enforcement of the rule or policy by an employer with knowledge of and acquiescence in its violation.
See Pacific Employers Insurance Co. v. Kirkpatrick,
Here, the ALJ found that employer was well aware of the employees’ conduct in frequently engaging in horseplay and had established policies for dealing with such conduct, but it had never followed its own policies for disciplining employees for the prohibited conduct. The determination whether an employer has acknowledged and acquiesced in the employees’ conduct or enforced its own rules is one of fact. See City of Las Animas v. Maupin, supra.
Accordingly, since the findings and evidence support the majority Panel’s determination that employer condoned the horseplay by declining to impose sanctions in accord with its own policy regarding such conduct, that determination is binding on review. Therefore, full benefits were properly awarded.
Order affirmed.