Decision date: September 25, 201317 pages
Summary
The Commission reversed the administrative law judge's decision denying a workers' compensation claim, finding that the employee suffered a compensable accident on August 2, 2011, during an altercation with his supervisor. The decision rejected the ALJ's finding that the employee was the aggressor, noting the supervisor's history of initiating verbal and physical confrontations with subordinates.
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| TEMPORARY AWARD ALLOWING COMPENSATION (Reversing Award and Decision of Administrative Law Judge) |
| Employee: | Robert Reis |
| Employer: | Shade Tree Service Company |
| Insurers: | United States Fire Insurance Co. c/o Crum & Forster Insurance Co. |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund (Open) |
| This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge. | |
| Introduction | |
| The parties asked the administrative law judge to decide the sole issue whether employee suffered a compensable accident on August 2, 2011. The parties requested that if the issue was determined in favor of employee, the administrative law judge would issue a temporary and partial award; conversely, the parties requested that if the issue was determined in favor of the employer, the administrative law judge would issue a final award denying both the primary claim and the Second Injury Fund claim.The administrative law judge rendered the following findings and conclusions:(1) employee’s own uncontrolled emotions, threats, and demonstrations of assault upon another are the source of his injury; (2) that employee was an aggressor in an altercation with his supervisor; and (3) no compensable claim occurred.Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred:(1) in finding employee was the aggressor in the altercation on August 2, 2011; (2) in interpreting and applying the Missouri law concerning assaults in the workplace; (3) in excluding employee’s deposition from the evidentiary record; and (4) in applying strict construction in the context of the “aggressor defense.”For the reasons set forth herein, we reverse the administrative law judge’s award and decision. | |
| Findings of Fact | |
| Employee worked for approximately eight years for employer as a foreman. Employee’s duties included tree-trimming and some paperwork. This workers’ compensation claim is the product of events that occurred during employee’s work shift on August 2, 2011.Employee’s supervisor, Ethan Taylor, had a history of instigating verbal and physical altercations with his subordinates. On April 20, 2011, for example, Mr. Taylor was addressing another employee when he called Adam MacClain, a foreman, a “motherfucker.” Mr. MacClain overheard the exchange, stepped out of his work truck, and asked if there was anything Mr. Taylor would like to say to him. Mr. Taylor marched toward Mr. MacClain, got nose-to-nose with him, and yelled in Mr. MacClain’s face. Mr. Taylor was so close to Mr. MacClain that he was practically spitting in Mr. MacClain’s face. Mr. Taylor formed his hands into fists and bumped Mr. MacClain two or three times with his chest hard enough to cause Mr. MacClain to step backward. Mr. Taylor told |
Mr. MacClain that he "better do something with himself." Mr. MacClain asked what Mr. Taylor meant. Mr. Taylor told Mr. MacClain, "You know what I mean." The altercation ended only when Mr. MacClain got in his truck and left.
On August 2, 2011, employee was working with another foreman, Daniel Kennedy, in a park in St. Louis County. Employee was supervising Mr. Kennedy. It was an extremely hot day, and employer had given employees the option of quitting early, but employee and Mr. Kennedy stayed to finish their work.
Ethan Taylor came to the job site several times throughout the course of the day to check on employee's progress, and to request that employee and Mr. Kennedy finish their work with the bucket truck, because Mr. Taylor felt that it looked bad for two men to be working out of two trucks, and he wanted to reassign the bucket truck to another crew.
At about 2:50 p.m., employee and Mr. Kennedy had finished their work for the day and were sitting in the work truck. Employee was sitting in the driver's seat, and Mr. Kennedy was sitting in the passenger's seat. Employee planned to finish the paperwork and then drive to the location where employees left their trucks at the end of the day.
Although there is a dispute with regard to the precise situation of the work truck, we conclude that the truck was parked such that it was difficult to exit on the driver's side.
While employee and Mr. Kennedy were sitting in the truck at about 2:50 p.m., Mr. Taylor again visited the job site and approached the truck to speak to employee and Mr. Kennedy. The parties present conflicting testimony as to what occurred in the course of that interaction.
Employee testified as follows. Mr. Taylor approached the truck and Mr. Kennedy opened his door. Mr. Taylor started to reprimand Mr. Kennedy for sitting in the truck. Employee told Mr. Taylor that Mr. Kennedy had just gotten in the truck, and that they were leaving. Mr. Taylor walked back to his truck, then came back. In a stern tone, Mr. Taylor said that employee and Mr. Kennedy were sitting right out by the road where the customer could see them, and that he couldn't have employee and Mr. Kennedy sitting in the truck. Employee again told Mr. Taylor they were preparing to leave. Mr. Taylor went back to his truck. This process occurred approximately four times, with Mr. Taylor approaching the truck, then walking away, then returning to tell employee and Mr. Kennedy they couldn't be sitting in the truck like that. The fourth time, Mr. Taylor used profanity. Employee responded that Mr. Taylor needed to get him a transfer. Mr. Taylor opened the passenger door, leaned in, pointed at employee, and said, "You get your own God damn transfer. I want you out of the truck." Employee told Mr. Kennedy to get out of the truck. Mr. Kennedy just sat there looking straight ahead, and did not move. Because Mr. Kennedy wouldn't move, employee started to exit the passenger's side of the truck by going around Mr. Kennedy.
Daniel Kennedy testified as follows. Both employee and Mr. Taylor were angry and their voices were raised during the interaction. Mr. Taylor was saying that employee and Mr. Kennedy couldn't be sitting in the truck; employee was trying to tell Mr. Taylor that he was doing paperwork. Mr. Taylor would approach the truck, then back off and pace around, then return. Mr. Kennedy felt like the argument was dying down, but then it would fire back up. Nobody instructed Mr. Kennedy to exit the vehicle. Both employee and Mr. Taylor were using foul language during their interactions.
Ethan Taylor testified as follows. Mr. Taylor came up to the truck and told employee and Mr. Kennedy that it was a real bad spot to be sitting doing nothing, and that they needed to be doing some kind of work. Both Mr. Kennedy and employee responded that they were getting ready to leave. Mr. Taylor said, "I'm talking to [employee] right now." Employee then screamed
over something like, "Where in the hell were you about an hour and a half ago?" Mr. Taylor told employee, "Wait, wait, you can't talk to me that way." Employee responded, "You know what, I'm tired of your shit," and asked for a transfer. Mr. Taylor responded that employee could get a transfer, but that employee didn't have to talk to him that way. Mr. Taylor denied using profanity.
The parties present conflicting testimony as to what happened next. Employee testified as follows. Employee was exiting the truck to comply with Mr. Taylor's instruction that he and Mr. Kennedy get out of the truck. Because Mr. Kennedy didn't get out, employee went around him. The cab of the truck was large enough for employee to go over and around Mr. Kennedy's legs. Employee was trying to put his legs on the running board of the truck when Mr. Taylor tried to bear hug his legs or waist. Employee tried to wiggle away, but Mr. Taylor was able to get a good grip on him, and then he carried employee to the left and body slammed him to the ground. Mr. Taylor put his forearm on employee's throat and was trying to choke him out. Suddenly, blood was running into employee's eyes and Mr. Taylor saw it and snapped out of it and jumped off employee and walked to his truck. Employee denies striking Mr. Taylor.
Daniel Kennedy testified that employee just went over his lap. Mr. Kennedy speculates that employee went head first, but "it was kind of a flash." Mr. Kennedy wasn't expecting it. The next thing Mr. Kennedy remembers is that employee and Mr. Taylor were both lying on the ground. Mr. Kennedy did not see any punches thrown.
Ethan Taylor testified as follows. Immediately after Mr. Taylor told employee that he could get a transfer, employee lunged over the seat. Mr. Taylor stepped back and stumbled. When Mr. Taylor looked back, employee was already out and in Mr. Taylor's face, where employee either kicked or kneed Mr. Taylor in the mouth. Mr. Taylor felt like he was hit pretty hard. Both he and employee fell to the ground, and Mr. Taylor rolled on top of employee to make sure employee didn't land on top of him. After he was on top of employee, Mr. Taylor crawled up on him to try to hold him down because employee was kind of wild at the time. Mr. Taylor agrees that no punches were thrown.
After carefully reviewing the testimony from each of these witnesses, we find the following facts as to the physical interaction between employee and Mr. Taylor. Although there is considerable conflicting testimony in the record regarding the circumstances resulting in injury, and although the employee certainly could have conducted himself in a more appropriate manner, considering all of the testimony we conclude that there is no real evidence that either employee or Mr. Taylor demonstrated any intent to harm each other and that employee's injury (and Mr. Taylor's) were unintended consequences of a dispute that grew out of tension inherent in the nature of the performance of their work duties. ${ }^{1}$
The parties dispute whether employee suffered an "accident," as that term is defined in § 287.020.2 RSMo, which provides, in relevant part, as follows:
The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.
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[^0]: ${ }^{1}$ In particular, we are impressed with the neutral witness testimony that no punches were thrown and by the fact that both parties apparently disengaged when it became apparent someone was injured.
Section 287.120.1 RSMo additionally provides, in relevant part, as follows:
The term "accident" as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.
We are persuaded that the facts that we have found satisfy each of the statutory criteria for an "accident," because employee (1) suffered an unexpected traumatic event or unusual strain (falling onto his back during the course of the struggle with Mr. Taylor) (2) identifiable by time and place (August 2, 2011, at employee's work truck) (3) that produced, at the time, objective symptoms (pain in employee's low back) of an injury caused by a specific event (employee's falling onto his back) (4) during a single work shift. We conclude that employee sustained an accident on August 2, 2011.
Because we have found that neither employee nor Mr. Taylor intended any violence in the course of their physical interaction on August 2, 2011, we conclude that employee's injuries were not caused by an assault against the employee. Accordingly, we discern
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