What the panel ordered
Petition for reconsideration denied; March 23, 2021 Arbitrator's Findings and Order affirmed.
Petition for reconsideration filed April 12, 2021, after Arbitrator's Findings and Award issued March 23, 2021; Appeals Board granted reconsideration to study issues further and now issues decision after reconsideration.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The Arbitrator found the applicant was the initial physical aggressor based on credible testimony, surveillance video, and police report, barring the claim under Labor Code 3600(a)(7).
From the decision · page 11The Arbitrator found the applicant was the initial physical aggressor and applicant's claim is barred by Labor Code § 3600(a)(7) and applicant did not sustain an injury arising out of and incurring the course of his employment because he was the initial physical aggressor.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant threw the first punch as shown by surveillance video and police report.
Favours Defendant prevailed
This established applicant as initial physical aggressor, barring claim under Labor Code 3600(a)(7).
From the decision · page 10The surveillance video was reviewed, which showed Williams approaching the applicant. The video then appeared to show the applicant and the driver talking with each other. The applicant and the driver again appear to be talking and the driver, at first, backed up and then the applicant is backing up. It then appears that the applicant swings at the driver. The applicant hits the driver again. The applicant then swings and misses. The driver then swings for the first time and the applicant, hits the driver several more times, with the driver ending up on the ground and being hit several times. The applicant hits the driver with both hands and, in one hand, the applicant appears to hit him with the radio he is holding.
Applicant's testimony found not credible due to inconsistencies and misrepresentations.
Favours Defendant prevailed
Credibility determination supported finding applicant was initial physical aggressor and claim barred.
From the decision · page 12For the reasons set forth above, the Arbitrator found the applicant's testimony lacking credibility because of the many misrepresentations he made to his employer and the police officer called to the scene of the incident.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code 3600(a)(7)
Labor Code 3600(a)(7) bars claims where applicant is initial physical aggressor.
Applicant's claim barred because he was found initial physical aggressor.
From the decision · page 11The Arbitrator found the applicant was the initial physical aggressor and applicant's claim is barred by Labor Code § 3600(a)(7) and applicant did not sustain an injury arising out of and incurring the course of his employment because he was the initial physical aggressor.
What proof carried it
The evidence the panel weighed, by kind.
Arbitrator's credibility determinations given great weight due to opportunity to observe witness demeanor.
From the decision · page 4We have given the Arbitrator's credibility determinations great weight because the Arbitrator had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the Arbitrator's credibility determinations. (Id.)
Surveillance video showed applicant threw the first punch, contradicting applicant's claim of initial threat by driver.
From the decision · page 10The surveillance video was reviewed, which showed Williams approaching the applicant. The video then appeared to show the applicant and the driver talking with each other. The applicant and the driver again appear to be talking and the driver, at first, backed up and then the applicant is backing up. It then appears that the applicant swings at the driver. The applicant hits the driver again. The applicant then swings and misses. The driver then swings for the first time and the applicant, hits the driver several more times, with the driver ending up on the ground and being hit several times. The applicant hits the driver with both hands and, in one hand, the applicant appears to hit him with the radio he is holding.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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