On Monday, I described to my dear, beloved readers the pickle in which I found myself on Thanksgiving.

Well, let’s look at the course of events.  The fight happened at work, while cousin Milosh was engaged in his duties of broom-making, and he sustained injuries as a result of the fight with his co-worker.  As I litigated against my fourth serving of turkey that evening, I started thinking about Milosh’s case and whether the initial physical aggressor defense (“IPAD”) would bar claim against the broom factory’s insurer.  With his sad face right across the table from mine, I kept pondering the possibilities.

Let’s start with the basics.  Labor Code section 3600 lays out that liability for work-related injuries “exists against an employer for any injury sustained by his or her employees arising out of and in the course of employment,” except for certain instances.  Labor Code section 3600(a)(7) lays out a defense to workers’ compensation claims that “arise out of an altercation in which the injured employee is the initial physical aggressor.”  Simple enough, right?  If you pick a fight and you get hurt, you get nothing.  Well, not so much.

As dear cousin Milosh’s situation demonstrates, determining who actually started it can be difficult at times.  In the definitive case on this issue, Mathews v. Workers’ Compensation Appeals Board, the Supreme Court held that “[h]e who by physical conduct first places his opponent in reasonable fear of bodily harm is the ‘initial physical aggressor.’”

In Mathews, the applicant was told by a co-worker in charge of directing traffic at a construction site that his truck was blocking traffic and would have to be moved.  Matthews replied with vulgarity and an obscene gesture, and the co-worker responded similarly. The co-workers started walking away and Mathews got out of his truck and started walking towards the co-worker with his fists clenched.  The co-worker drew a line in the dirt and told Mathews not to cross it while picking up two rocks.  When Mathews lunged at the co-worker, the co-worker struck him in the head with a rock.

The Supreme Court held that no physical harm or physical contact is necessary to be the initial physical aggressor, “[u]nder appropriate circumstances clenching a fist or aiming a gun may be sufficient to convey a real, present and apparent threat of physical injury.”

But what about name calling and spitting?  After all, as my great uncle Patty used to say, “he who tolerates insult invites injury.”  The Workers’ Compensation Appeals Board has had many opportunities to deal with such situations.

For example, in the panel case of Charles Thomas v. Los Angeles County Metropolitan Transit Authority, a bus driver sustained injury after an altercation with a passenger who refused to pay her fare.  When the bus driver stopped the bus and called the police, for which he was treated by the passenger with a barrage of racial slurs and a verbal battle over the applicant’s ancestry and abilities.  The bus driver got off the bus to wait for the police.

Then, the passenger followed the bus driver off of the bus and spat in his face.  At that point the bus driver grabbed the passenger and they went down in a fight, from which he sustained injury.  In finding the IPAD didn’t apply, the WCAB reasoned that applicant’s fear of the transmittal of hepatitis or AIDS was enough to satisfy the test set out in Mathews,

Similarly, in the case of Richard Galindo v. MV Transportation, Inc., a bus driver sustained various injuries after an altercation with a juvenile passenger.  The juvenile was using profanity on the bus, and so the bus driver pulled over and asked him to get off.  Before getting off the bus, the juvenile spat in the bus driver’s face and arm.  When the bus driver followed the juvenile off the bus, the juvenile came face to face with the bus driver and threatened to beat him up.  A fight ensued and the bus driver sustained injury.  The WCAB held that the combination of the threat of violence and the spitting was enough to satisfy the Mathews requirement.

But it’s important to distinguish between an initial physical aggressor and an instance of horseplay or “skylarking.”  For example, in the case of Sergio Nufio v. Bridge Hospital, LLC, applicant was engaged in horseplay, while another worker was not and started a real fight.  Because Mr. Nufio’s acts, in initiating the altercation, were not acts of aggression but rather subjective acts of horseplay, the initial physical aggressor defense did not apply – the victim of Mr. Nufio’s horseplay was the initial physical aggressor.

There are also issues of proof to consider.  Just like in grade-school, once the fight is over, each combatant says two things: (1) he started it; and (2) I won.  The defense will often-enough come down to credibility and proof.  In Tori Vargas v. State of California Department of Mental Health, the WCJ found that Ms. Vargas’ version of the facts was not credible, and that she was the initial physical aggressor.  Similarly, in Anderson v. G-3 Enterprises, the question of whether or not applicant was the initial physical aggressor was decided by a neutral witness not involved in the fight – each combatant having testified that the other had started it.

So, what do you think, dear readers? Does my poor cousin Milosh have a claim?  Come back on Friday for your humble blogger’s thoughts.