WCDefenseCA

So dear readers, there I was.  Sitting at Thanksgiving dinner, looking at poor cousin Milosh staring helplessly at his food as he pondered his fate at the broom factory.  Would his claim for workers’ compensation benefits, based on injuries sustained during his fight with co-worker “Nasty Nate” be barred by the initial physical aggressor defense (“IPAD”)?

In order for Milosh to survive the IPAD, Nate would have to be the initial physical aggressor.  When Nate taunted cousin Milosh and insulted his broom-making skills, it probably didn’t rise to the level of initial physical aggressor as articulated in the Mathews case.  So Nate was probably still in the “horseplay” arena.

What about the handful of broom-bristles Nate threw at Milosh?  Well, broom bristles can be fatal to dust, dirt, crumbs, trash, and messes, but it might be a stretch for cousin Milosh to claim that the handful of broom-bristles thrown at him put him in reasonable fear of bodily harm.  So Nate was still probably in the “horseplay” arena, and cousin Milosh was no closer to the workers’ compensation gravy train of paid time off, free opioids, and court-ordered ramps on his vacation home.

So what about Milosh spitting on Nasty Nate?  After all, in the cases of Thomas and Galindo mentioned in last-time’s post, spitting was a key factor in finding the “spittor” the initial physical aggressor.  Well, cousin Milosh aimed the spit at the floor and hit Nate’s shoe.  Hardly the same sort of aggression as spitting in a person’s face!  What happened next was a pretty clear sign of aggression, the act of Nate charging and kicking and punching and injuring.

As much as your humble blogger hates to say it, cousin Milosh just might have a claim that would survive the initial physical aggressor defense.  Cousin Milosh’s response was just what you’d think it would be when I reluctantly told him the good news.

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.

Recently, your humble blogger enjoyed the wonderful pleasure of seeing his extended family for Thanksgiving.  The table was buckling under the weight of the food, dishes as far as the eye could see, the fireplace was roaring in bold defiance of the local anti-wood burning ordinance, and the drinks flowed generously to ease the close proximity of so many family members suddenly together in so small a room.

As your humble blogger helped himself to another slice of turkey, cousin Milosh sat glumly at his seat, with no appetite to speak of and a big black eye adorning his ridiculously pale face.

I invited Milosh to the kitchen as I mixed him one of my famous “workers compensation Old Fashioned” cocktails.  “Milosh, I asked, why so glum?”

Milosh sadly related the tale.  He was at work at the local broom factory when he got in a fight with a co-worker.  Aside from the shiner on his eye and his bruised ego, he also hurt his back when he fell during the fight.  In fact, I had heard the story from a mutual friend.  The friend happened to be there during the last stage of the “altercation,” and saw the co-worker get the upper hand.  When the co-worker was finally pulled off my cousin Milosh by the supervisor, Milosh’s only words, whispered weakly from the floor, were “I was winning.”

The worst part of it all was, of course, that Milosh couldn’t work because of his injury – it hurt to pick brooms up, to test-sweep the brooms, or even to scatter refuse on the floor of the broom factory to be test-swept by the brooms.

“Isn’t the employer’s insurer picking up the injury as part of workers’ comp?” I asked, already feeling dirty for directing an injured worker to a system that no one except applicants’ attorneys and doctors were feeling especially thankful for on Thanksgiving day.

“I asked,” said Milosh, “but the insurance adjuster wrote me a letter saying that the claim is rejected because I was the initial physical aggressor.  I didn’t start the fight, but I guess you can’t get workers’ comp if you win.”  Granted, my knowledge of workers’ compensation is limited, but I had never heard of the “only losers recover” rule.  And, from what I heard, cousin Milosh didn’t exactly carry the day…

“How did the fight start?”  I asked, as Milosh and I moved over to the window to take our turn at watch against vengeful wild turkeys…

It appears that a co-worker, who goes by the nickname “Nasty Nate”, came up to cousin Milosh and said some unpleasant things about his broom-making skills.  Nate then grabbed a handful of broom bristles and threw them at Milosh.  Milosh immediately turned around and spat at Nate.  Milosh claims that the spit was aimed for the broom-factory floor, but landed on Nasty Nate’s broom-making boots by accident.  Nasty Nate then charged Milosh, who curled into a ball on the floor bravely held his ground and fought back.

“You’re a workers’ compensation lawyer, do you think I have a case?”

“No,” I answered, based purely on defense-attorney instinct.  But then the Thanksgiving spirit kicked in and I decided I should probably think about it and give Milosh a real answer.