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Who started it? The initial aggressor defense in workers comp cases

Posted On: Jun. 14, 2017 7:21 AM CST

Workplace altercations that result in an injury can sometimes lead to complicated questions about whether the employee’s own actions preclude him or her from recovering workers compensation benefits.

A recent case in Louisiana highlights the topic.

Steven Frederick Washington worked for New Orleans-based Gallo Mechanical Contractors L.L.C. and was driving a shuttle for the company for a work-related project on Dec. 7, 2015. Mr. Washington allegedly called passenger Lamar Rogers, also a Gallo employee, a “homosexual” and spoke threateningly to him, according to court documents in Washington v. Gallo Mechanical Contractors L.L.C.

Mr. Rogers then slapped Mr. Washington, causing injuries to his head, neck, back and shoulders, according to court records.

Mr. Washington filed a disputed claim for workers comp benefits with Louisiana’s Office of Workers’ Compensation Jan. 8, 2016, to which Gallo and its insurer, Creative Risk Solutions, filed an answer admitting that no wage benefits or medical costs had been paid. In their answer, Gallo and Creative Risk Solutions said their investigation into the incident revealed that Mr. Washington was the initial aggressor in the altercation. In addition, Gallo and Creative Solutions said the incident was not work-related, and because it involved fighting, it was considered an intentional act that precludes recovery of benefits by the Louisiana Workers’ Compensation Act, according to court documents.

Louisiana’s workers comp statute specifies that no compensation shall be allowed for an injury caused “to the initial physical aggressor in an unprovoked physical altercation, unless excessive force was used in retaliation against the initial aggressor.”

In February 2016, Gallo and Creative Risk filed a motion for summary judgment seeking a dismissal of the claim, which was granted by an Office of Workers’ Compensation judge.

Mr. Washington appealed the decision to the Louisiana Court of Appeal for the 4th Circuit in New Orleans, saying he was on the clock and being compensated for his work at the time of the altercation, and that he was seated in the driver’s seat of the shuttle when he was struck from behind by Mr. Rogers, court records show. Mr. Washington said it was “indisputable” that his injury occurred while he was in the course of his employment, according to court documents.

Gallo and Creative Risk did not dispute that Mr. Washington was seated in the driver’s seat of the shuttle when the incident occurred nor that both men were working for Gallo at the time of the incident. Instead, they questioned whether the altercation between the two men arose out of the course of Mr. Washington’s employment, court records show.

In May, a three-judge panel of the Louisiana appeals court affirmed the judgment of the Office of Workers’ Compensation judge. The court said it defines “in the course of work” as an injury that occurs while the employee is actively engaged in performance of his duties during work hours, either on the employer’s premises or at other places where employment activities take the employee. However, the court said for an altercation to be considered to have arisen out of employment, there must be a showing that it was related to the employment itself.

“Given that the nature of the verbal confrontation which occurred immediately before the physical contact between Mr. Rogers and Mr. Washington, we find that the OWC judge correctly concluded that the altercation did not arise out of Mr. Washington's employment and was personal in nature,” the court said in its decision. “On that basis, the trial court properly granted summary judgment in favor of defendants. We find, as did the trial court, that the altercation and injuries were not caused by or related to Mr. Washington's employment.”

Workplace fights a gray area

Workplace altercations are a common enough event that compensability of injuries sustained during such altercations are addressed in some state comp statutes. Like Louisiana, California precludes aggressors in workplace altercations from recovering workers comp benefits. The statute was tested in 2011 in Nufio v. Bridge Hospitality L.L.C. when two employees engaged in horseplay that evolved into an altercation. The court found that the claimant was not barred from receiving benefits because he was not the initial physical aggressor.

In most states, physical altercations are not specifically codified in workers comp statutes but are instead contemplated in case law. Often, physical altercations are considered under horseplay or willful misconduct theories, said Albert Randall, an attorney with Baltimore-based law firm Franklin & Prokopik P.C.

“The analysis is very similar,” Mr. Randall said. “You are intending to engage in conduct for which you know it is a violation of policy or a safety issue. You are intentionally engaging in misconduct that you otherwise know is unsafe.”

Mr. Randall said these cases can be complicated because they frequently involve an escalation from verbal to physical contact. Once they reach the court system, the cases usually involve questions of whether the altercation arose out of work and sometimes come down to he-said-she-said testimony that results in a problem of proof, he said.

In Board of Education of Montgomery County v. Spradlin in 2005, a claimant was assaulted by a co-worker after a verbal argument commenced related to changing television channels in the breakroom. The employer argued the claimant’s own willful misconduct in instigating the fight precluded workers comp recovery. However, the Court of Special Appeals of Maryland found there was no willful misconduct on the part of the claimant because the employer failed to carry the burden of proof. The court also noted that case law in Maryland is unclear on whether provocative words alone are sufficient to amount to willful misconduct.

Because altercations can lead to a variety of gray areas and complicated issues in workers comp claims, employers should be aware of the initial aggressor defense in cases of workplace altercations, said Mr. Randall. If an altercation occurs, employers should make sure to perform a timely investigation, obtain witness statements and preserve any available video evidence, he said.

“Occasionally there will be cases where the aggressor is charged with a crime,” Mr. Randall said. Employers should be aware of any criminal actions that may arise from the altercation that would overlap with and impact the workers comp case, he said.