(dissenting):
I respectfully dissent.
In reversing the order of the Commission, the majority opinion rules “as a matter of *1368law that there was not a substantial deviation” from petitioner’s course of employment (emphasis added). My primary concern with such a ruling is that a decision as to whether one is injured by accident arising out of or in the course of his employment is not a law matter, but a factual one. Once the Commission has found the facts, this Court has traditionally refrained from disturbing such findings whenever there is substantial evidence to support them.1
The majority relies upon the case of Twin Peaks Canning Company v. Industrial Commission 2 as being consistent with its holding. On the contrary, in Twin Peaks the Court affirmed the findings of the Commission and acknowledged the standard of review referred to supra. Furthermore, the facts in Twin Peaks are readily distinguishable in several particulars. For example, in Twin Peaks, the fatal injury occurred during a lull in the work, at a time when there was no work to perform; in the instant case, petitioner was actively engaged in his work when he abandoned it for the purpose of “horseplay.” Also, at the time of the accident in Twin Peaks the injured party was a minor (14 years of age) whereas in the instant case, petitioner was 22 years of age. The Court specifically acknowledged that Twin Peaks was a borderline case (which further suggests the importance of the factual determination) and that “if the deceased had been a man of mature years and experience, we might have reached a different conclusion.”
The approach suggested by Professor Larson may well assist in determining whether the accident arises out of or in the course of one’s employment. However, even if this four-step analysis is applied, it is the fact-finder (not this Court) which must evaluate and weigh each element individually and collectively. This includes the element the majority treats as a law matter, that of substantial deviation from petitioner’s course of employment.
In the instant case, the petition admitted that at the time of the accident he was not performing an assigned duty. He also admitted that his injury resulted from his own act and that he was the “aggressor” in flipping the piece of wood, i. e., that his flipping of the wood was not a reaction of having been hit with an elastic band but was rather an independent, playful gesture. Testimony indicated that the employees had been warned about flipping elastic bands at each other and that apparently no employee of the company had ever before attempted to flip a projectile with an elastic band while on the job. Based on the evidence presented, the administrative law judge found as follows:
The horseplay was not related in any way to the performance of the applicant’s job duties but rather represents a complete abandonment of the employee’s duties. At the time of the accident neither the applicant nor any of the other employees involved in the horseplay were carrying out their assigned tasks.
The applicant has failed to prove that his accident arose out of or was in the scope of his employment.
In recognition of the prerogative it is of the fact-finder to judge the evidence and the inferences that may reasonably be drawn therefrom, I am of the opinion that the evidence is such that there is a reasonable basis upon which the Commission could remain unpersuaded that petitioner’s injury “arose out of or in the course of his employment”; and, conversely, that the evidence does not rise to the level that requires reversal of the Commission’s order and thus compels an award of benefits. In order to do so, the evidence must be uncontradicted or so overwhelming that all reasonable minds would necessarily so find. Such is not the case here, and I consequently see it *1369as our duty to affirm the Commission’s order.3
I would affirm.
CROCKETT, C. J., concurs in the dissent of HALL, J.. Utah-Idaho Sugar Co. v. Industrial Commission, 71 Utah 190, 263 P. 746 (1928). Specifically, we may not weigh the contradictory evidence for the purpose of interposing our own judgment as to what the facts are; rather, we must construe the evidence in a light most favorable to sustaining the findings and order of the Commission. Wiseman v. Village Partners, Utah, 589 P.2d 754 (1978).
. 55 Utah 589, 196 P. 853 (1921).
. See Vause v. Industrial Commission, 17 Utah 2d 217, 407 P.2d 1006 (1965), citing Kent v. Industrial Commission, 89 Utah 381, 57 P.2d 724 (1936), and Kavalinakis v. Industrial Commission, 67 Utah 174, 246 P. 698 (1926).