RICHMOND, Va. (Legal Newsline) - The Virginia Supreme Court has reversed the decision of an appeals court in the workers' compensation case of a Ruby Tuesday waiter who was pelted with ice and suffered an injury to his shoulder.

The Court, in its 17-page opinion filed Jan. 13, remanded the case to the Virginia Court of Appeals with direction to remand the case to the Virginia Workers' Compensation Commission "so that the commission may consider the claim consistent with the law."

At issue was whether Matthew Edward Simms' injury arose out of his employment as a server at a Ruby Tuesday restaurant in Manassas.

During a work shift, he walked into the kitchen to enter an order into a computer and to print a check for a customer. Three other employees were in the kitchen at the time, and allegedly started throwing ice at him.

Simms, who said he considered the three friends, testified that after a piece of ice hit him in the back of the head, he turned around. As he was turning around, he felt a pain in his left shoulder. Then, as he tried to lift his hand to block a piece of ice from hitting him in the face, he felt his shoulder dislocate.

He was taken to a hospital, and was later referred to a doctor for follow-up treatment.

Simms alleged that after the injury he was unable to use his shoulder in everyday activities and was unable to work for a period of time. He also claimed he later required additional medical treatment for his injury, including surgery, which resulted in an additional period of temporary total disability.

A deputy commissioner with the workers' compensation commission concluded that Simms was the "innocent victim of horseplay" perpetrated by co-employees. He was awarded a four-day period of temporary total disability.

However, it was noted that prior to his injury at work, Simms' shoulder had dislocated on several occasions, unrelated to his employment.

Because of that, the deputy commissioner found that the surgery Simms later had on the shoulder, and the following period of temporary total disability, had not been proven to be related to his injury at work.

Both parties appealed to the full commission.

The full commission stated in its decision that there was "no connection between the conditions under which the employer required the work to be performed and the assault by the co-workers" and, reversing the deputy commissioner, ruled that even though Simms was an innocent victim of workplace horseplay, his injury did not arise out of his employment.

Simms appealed to the Court of Appeals, which affirmed the full commission's ruling.

Justice S. Bernard Goodwyn, who authored the Court's opinion, said the workers' compensation commission and appeals court misinterpreted the law.

"Unlike assault cases where a causal connection needs to be proven between the assault and the employment, when a fellow employee engages in horseplay by doing something in a playful or joking manner that injures an innocent nonparticipating co-worker, such injury is inherent to the injured co-worker's employment or is directed toward the co-worker as an employee," Goodwyn wrote for the Court.

The Court said there was no underlying "assault."

"Simms' co-workers neither battered nor assaulted him. They did not pelt him with ice in a rude, insolent, or angry manner. Their conduct was jocular and playful. They did not intend to cause him harm or offense, and Simms did not apprehend the contact to be rude, insolent, angry, harmful, or offensive," the Court wrote.

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