California Workers’ Compensation defense practice offers few enough defenses for self-insured employers and insurance companies to use in resisting claims.  Two such defenses are bars to compensation, available when the injury is the result of horseplay (Hedges v. Workers’ Compensation Appeals Board), or when the injured worker is the initial physical aggressor. (Labor Code § 3600(a)(7).)

[For an interesting case touching on the initial physical aggressor defense, see this post.]

The WCAB recently clarified the proper application of these defenses, although unfortunately the defendant paid the price for this explanation.

In the case of Sergio Nufio v. Bridge Hospital, LLC, applicant and a coworker offered conflicting testimony as to “who started it,” each claiming that the other was doing the name-calling and butt-grabbing.  [Folks – I just report these cases, I don’t make them up.]

Applicant testified that this was not playful on his end, but rather he was being harassed by his co-worker.  Another coworker later testified that applicant was regularly goofing off at work.

Eventually the two decided to settle the matter downstairs in the basement.  Applicant, walking in front of his coworker, was shoved down the stairs, giving rise to the subject injury.

Defendant asserted two alternative defenses, horseplay and the initial physical aggressor defense.  In reviewing this case, the WCAB found that neither defense applied.

The initial physical aggressor defense was not available because the first physically aggressive act, as distinguished from horseplay, was performed by the coworker in shoving applicant down the stairs.

“But wait,” cried the defense, “the first physical act was applicant’s butt-grabbing!” [Again, dear readers, I don’t make these facts up.]

To this the court replied that those acts prior to the stair-shoving were acts of horseplay, and so do not trigger § 3600(a)(7).  And since the horseplay itself did not result in an injury… well, you understand.

So even if applicant was acting like a regular jerk and had it coming, his injury, at least in this case, is still compensable.

In other words, brave readers, if you play with fire, you will get all the benefits ofCalifornia’s Workers’ Compensation system.