Unfortunately violence in the workplace is on the rise. A 2011 study from the U.S. Bureau of Labor Statistics found that 17% of workplace fatalities that year were the result of
Unfortunately violence in the workplace is on the rise. A 2011 study from the U.S. Bureau of Labor Statistics found that 17% of workplace fatalities that year were the result of violence. While deaths and injuries from other causes are in decline due to improved safety measures, incidents of violence continue to increase. As the incidences of violence, rise, employer and insurers are regularly forced to address the compensability of injuries resulting from work place violence, and random assaults in particular.
The essential question that must be asked in determining whether an injury as the result of an assault is compensable, is, as in every work related injury, whether the injury arose out of and in the course and scope of employment. In making this determination, the motivation for the assault is the focus of the analysis. Generally, the motivation for assault can be placed in one of three categories: 1) directly related to the employment 2) purely personal in nature and 3) neutral.
In Georgia, it has been well established that an injury, as the result of an attack or altercation, is deemed to arise out of and in the course of employment if the subject matter giving rise to the assault is related to the employment. O.C.G.A § 34-9-1(4). For example, when a garage employee was shot and killed by customer who became irate by the employee’s refusal to perform additional repairs, the court found that the worker’s death occurred within the course and scope of his employment and benefits were awarded. Keen v. New Amsterdam Cas. Co, 34 Ga. App. 257 (1925).
Conversely, if the attack or assault is motivated by purely personal reasons, case law clearly establishes that injury is not compensable. In City of Atlanta v. Shaw, 179 Ga. App. 148 (1986), the claimant was involved in a fight with a co-worker that stemmed from the claimant’s constant begging for food. The Court of Appeals found that his injuries were not compensable, holding that there was no evidence to suggest that the altercation was motivated by anything other than a personal situation.
In may instances, however, workplace assaults are neither the result of an employment related disagreement or motivated by reasons personal to the employee. The Rhode Island Supreme Court recently addressed the compensability of a random assault in its decision in Ellis v. Verizon New England Inc., No. 2010-431 M.P. (R.I. 04/12/13). Factually, this claim involved a splice service technician who was sent to a job site in a high violent crime area. While working, the employee overheard an individual yelling loudly. The technician asked the man why he was yelling. In response, the assailant picked up a large wooden board and struck the Verizon employee on the head several times.
The employee sustained a severe head wound requiring 14 staples and he developed emotional stress as the result of the assault. The technician subsequently sought workers’ compensation benefits for his injuries. The Rhode Island Supreme Court held that he was entitled to benefits, relying on the street risk doctrine. Specifically, the Court found that being assaulted while on a public road was an actual risk of the technician’s employment and therefore, he sustained an injury arising out of and in the course and scope of his employment.
The Supreme Court likened his injuries to an automobile accident. The Court found no meaningful difference between being struck by an assailant and being struck by a car because, in both situations, the possibility of injury was an actual risk to which workers were exposed if they are required, by their employer, to travel on public roads. The Court went on to point out that the specific risks to which the worker may be exposed on a public roadway as a result of his employment are determined on a case by case basis.
The Rhode Island Court utilized the street risk doctrine in finding the claimant’s injuries compensable. The street risk doctrine applies when an employee’s indiscriminate exposure to the general public is one of the condition under which his work is required to be performed and the actions of those persons on the premises are reasonably considered hazards of the employment. While Rhode Island applied the street risk doctrine in Ellis, many other states have applied the positional risk doctrine either in name or principle in cases involving neutral risks. Some states have utilized this doctrine in assault cases. Most notably, North Dakota, New Mexico and Pennsylvania have relied on the positional risk doctrine in awarding workers’ compensation benefits for injuries that were the result of unexplained assaults.
The positional risk doctrine was first utilized in Georgia in National Fire Insurance v. Edwards, 152. Ga. App. 566 (1979). In Edwards, the Court of Appeals rejected the previous “peculiar risk doctrine” in favor of the “positional risk” standard. Edwards was injured when a tornado struck the building in which he was working. In it’s decision, the Court of Appeals held “that it is only necessary for the claimant to prove that his work brought him within the range of danger even though any other person would have injured irrespective of his employment.”
The Court held, that in order for the position risk analysis to apply, the employee must show that the employment brought him within the zone of danger and that anyone else would have been injured, regardless of employment. In cases involving fights or assaults, the position risk doctrine can aid the claimant is carrying his burden of proof. It does not, however, relieve the injured worker from carrying his burden or lead to the presumption of compensability. Essentially, it allows the Administrative Law Judge to connect an injury to the employment even if the employee would be equally exposed to the risk outside the scope of his employment.
While workplace violence and unprovoked assaults are on the rise, they are by no means a new phenomenon and Georgia Courts have addressed the compensability of injuries resulting from random assaults long before the adoption of the positional risk doctrine. For example, in General Fire & Cas. Co. v. Bellflower, 123 Ga. App. 684 (1979), a bus driver was shot and killed while walking back to his hotel from a meal. He was not actively working at the time but he was on call. The assailant was a stranger and there was no personal or employment related motive for the attack. The deceased’s widow subsequently filed a workers’ compensation claim seeking death benefits.
The Court of Appeals found that walking on the street at night, returning from a meal in an area particularly susceptible to crimes against the person, where he was placed on a account of his employment, exposed him to the likelihood of assault. While the Court found that there was no readily apparent causal connection between the his employment and the assault, there was the existence of some causal connection between the conditions of employment and the injury. As a result, the claimant’s injuries were deemed compensable and benefits were awarded.
More recently, Georgia Court of Appeals addressed the issue of random assaults in Hulbert v. Domino’s Pizza, 239 Ga. App. 370 (1999). Hulbert was working as a Domino’s Pizza delivery driver at the time of his injury. On the night in question, he pulled his vehicle to the side of the road after the vehicle behind him flashed blue lights. He was approached by an unknown individual who stated “take this” and doused Hulbert with gasoline and set him on fire. He sustained third degree burns over 50 percent of his body and sought workers’ compensation benefits.
At trial, the claimant presented evidence that he worked in a high crime area and that Domino’s drivers had encountered people within the community throwing rocks at their vehicles previously. In addition he asserted that he had sustained an unexplained accident and was entitled to the presumption that the accident arose out of and in the course of his employment. Domino’s asserted that the attack was personal in nature, although no direct evidence was provided to definitively support this position. The Court of Appeals found that the claimant was returning to Domino’s, after delivering a pizza, and was injured as the result of an unprovoked attack by an unidentified person for unknown reasons. As a result, the claimant had met his burden for establishing that his injuries arose out of an in the course and scope of his employment.
The Court did not directly invoke the positional risk doctrine in holding the Domino’s delivery driver’s injuries compensable. Specifically, the Court based its finding on the fact that, “the conditions of Hulbert’s employment did not merely provide the time and place for the assault, but increased the risk of attack, and subjected him to a danger peculiar to his employment.” The Court’s rational was similar to that used by the Rhode Island Supreme Court in Ellis. Essentially, both courts found that the claimant’s employment, by its very nature, put them at risk of the injuries they sustained.
While the positional risk doctrine analysis was not directly utilized in either of these opinions, it can, nevertheless, be used as a tool for parties arguing for or against compensability. In Georgia, the positional risk doctrine is often associated with injuries caused by acts of nature and idiopathic conditions. However, the analysis can be applied to a variety of factual situations. For example, the Georgia Court of Appeals utilized the positional risk analysis in its recent decision in Stokes v. Coweta County Board of Education, 313 Ga. App. 505 (2012)
Factually, this case involved a head custodian who parked her car on an incline at the front of the school in order to unlock the gate. On the date of her injury, the ground was wet from rain and the car began to roll backwards. As a result, a tire rolled over her foot causing injuries. The Court of Appeals, relying on the positional risk doctrine, found that at the moment her car began to roll backwards, the claimant was on duty, at a location where her job required to be and she was performing a task which her job required her to do. As a result, her injuries were held to be compensable.
Stokes did not involve an injury that was the result of an unexplained assault. However, an alteration of the fact pattern to reflect an injury from a random attack would lead to the same conclusion under the positional risk analysis. For example, if the claimant had been assaulted by an insane individual at the front entrance of the school, for unknown reasons, while the claimant was unlocking the gate, her injuries would be found compensable under the positional risk doctrine. The fact that she was on duty, at a place where her employment required her to be, performing a task required by her employment, would lead to a finding of compensability regardless of whether her injury was the result of disengaging brakes or a random assault.
The facts, as enumerated in Ellis, would most likely lead to a finding of compensability under Georgia law. However, if these facts were altered significantly a completely different outcome would occur under an application of Georgia workers’ compensation law. For example, had Ellis, instead of simply asking the assailant why he was yelling, used profane language toward the individual or provoked him in some other manner, Georgia courts would be less likely to find his injuries compensable. Generally, an employee’s assault injuries, that might otherwise be compensable, are denied if it is determined that the injured employee is the aggressor.
An obvious situation would be if the injured employee struck the first blow or initiated some other physical contact which led to a fight. However, physical contact is not required for the injured employee to be deemed the aggressor. The mere utterance of fighting words may be enough to make an employee the aggressor. For example, workers’ compensation benefits were denied to a taxi cab driver who was injured in a fight with a co-worker over the manner in which he performed his duties. The denial was based on a factual determination that the taxi driver had used strong language towards his co-worker inciting the altercation. Kimbro v. Black & White Cab Co., 50 Ga. App. 143 (1935).
Ellis’s injuries occurred while he was working. However, if Ellis had been traveling on foot, after parking his car, to the locale where is job was to be performed, but before he was scheduled to go on duty his injuries would not likely be found compensable under current applications of Georgia law. In Collie Concessions, Inc. v. Bruce, 272 Ga. App. 900 (2005), the Court denied workers compensation benefits to a worker who was struck by a car in a cross work on her way to work. The cross walk was specifically designated for use by employees going to and coming from work. Bruce, relied, in part, on the positional risk doctrine in arguing for compensability. The Court found that she was not on her employer’s premises or in the course of her employment at the time of her injuries and her claim for benefits was denied.
Essentially, a determination as to whether a claimant’s assault injuries are compensable, will depend on the specific facts of the case. When assessing whether an employees injuries, resulting from assault, are compensable, it is vital to identify the cause of the attack. When the subject matter of the altercation giving rise to the worker’s injuries is easily discernible, a determination of compensability can be made with relatively little difficulty. However, when the cause of the assault is known or the facts are not readily available, a more intensive investigation will be required. Employers and Insurer’s should be mindful of these issues prior to making determinations regarding the compensability.