ADJ15449362 · May 26, 2023

The WCJ's credibility determinations were given great weight, and the evidence including video surveillance supported that the applicant was the initial physical aggressor in the altercation leading to injury.

From the decision · page 2For the reasons stated by the WCJ in the Report, we agree that applicant was the initial aggressor in the altercation that led to his injury. Moreover, as discussed in the Report the WCJ's credibility determinations are entitled to great weight. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].)

Applicant was found to be the initial physical aggressor in the altercation leading to injury

Favours Defendant prevailed

This finding bars applicant's claim for compensation under Labor Code section 3600(a)(7)

From the decision · page 2For the reasons stated by the WCJ in the Report, we agree that applicant was the initial aggressor in the altercation that led to his injury. Moreover, as discussed in the Report the WCJ's credibility determinations are entitled to great weight. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].)

Video surveillance showed applicant chasing and attacking employer after initial altercation

Favours Defendant prevailed

Supported the credibility of employer witnesses and undermined applicant's testimony

From the decision · page 5There is surveillance video of that second altercation.

Lab. Code, 3202.5

Burden of proof on injured worker to prove injury by preponderance of evidence

Applicant failed to meet burden due to lack of credibility and evidence showing initial aggression

From the decision · page 1The injured worker holds the burden of proving injury by a preponderance of the evidence. (Lab. Code,1 § 3202.5.) Section 3600(a) provides that: "[l]iability for the compensation... shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment...." (Lab. Code, § 3600(a).) However, section 3600(a)(7) bars an employee's claim for compensation where the injury arises out of an altercation in which the injured employee is the initial physical aggressor. To "arise out of an altercation," as required by section 3600(a)(7), an injury must result from an exchange between two or more persons characterized by an atmosphere of animosity and a willingness to inflict bodily harm. Section 3600(a)(7) also imposes the necessity of selecting one overt act out

Lab. Code, 3600(a) and (a)(7)

Liability for compensation exists for injury arising out of employment except where employee is initial physical aggressor in altercation

Applicant barred from compensation as initial physical aggressor

From the decision · page 1The injured worker holds the burden of proving injury by a preponderance of the evidence. (Lab. Code,1 § 3202.5.) Section 3600(a) provides that: "[l]iability for the compensation... shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment...." (Lab. Code, § 3600(a).) However, section 3600(a)(7) bars an employee's claim for compensation where the injury arises out of an altercation in which the injured employee is the initial physical aggressor. To "arise out of an altercation," as required by section 3600(a)(7), an injury must result from an exchange between two or more persons characterized by an atmosphere of animosity and a willingness to inflict bodily harm. Section 3600(a)(7) also imposes the necessity of selecting one overt act out

Mathews v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 719

Definition of initial physical aggressor as one who first engages in physical conduct perceived as real threat of bodily harm

Applicant found to be initial physical aggressor based on evidence and credibility findings

From the decision · page 2of a series of hostile verbal, psychological, and physical acts as the one that, for compensation purposes, caused the quarrel and elicited the ultimate injury. (Mathews v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 719, 726 [37 Cal.Comp.Cases 124].) The Legislature's use of the term "physical" aggressor indicates that it was primarily concerned with the increased risk of injury which arises when a quarrel moves from an exchange of hostile words and nonviolent gestures to a trading of physical blows. Thus, one is not an initial physical aggressor so long as he confines his antagonism to arguments, epithets, obscenities or insults. Instead, an "initial physical aggressor" is one who first engages in physical conduct which a reasonable man would perceive to be a real, present and apparent threat of bodily harm. (Mathews, supra, 6 Cal.3d at p. 719.)

Video surveillance showing applicant chasing and attacking employer after initial altercation

From the decision · page 5There is surveillance video of that second altercation.

Applicant's inconsistent testimony contradicted by video and witness statements

From the decision · page 5Tim Herron's testimony more accurately lines up with the video evidence. The applicant's version of those events is not even close to what the video watched by the court shows.