Violence in the workplace accounts for a large number of workers’ compensation claims each year. While at first glance an altercation
Violence in the workplace accounts for a large number of workers’ compensation claims each year. While at first glance an altercation between angry co-workers should have little to do with the Workers’ Compensation Act, it is necessary to examine the circumstances and origins of the altercation to determine whether any resulting injuries are compensable.
O.C.G.A. §34-9-1(4) provides the fundamental rule that a work injury must arise out of and in the course of the employee’s employment to be compensable under the Workers’ Compensation Act. Further, a compensable injury “shall not include injury caused by the willful act of a third person directed against an employee for reasons personal to such employee.” Id.
Where an injury results from an attack on an employee by a co-worker, “the attack must be work-related rather than for personal reasons, in order for the injury to be compensable.” Walsh Constr. Co. v. Hamilton, 185 Ga. App. 105; 363 S.E.2d 301 (1987). The Act does not cover injuries sustained in a fight between co-workers solely because it may have occurred at work and during working hours. A case-by-case determination must be made to determine the root of the issue as well as who provoked the other party. In Hamilton, an employee and his co-workers met for breakfast after clocking in for work. A co-worker, annoyed by the employee’s persistent requests to share the others’ food, rammed the employee into a wall and fell on him, breaking his leg. Because the altercation stemmed from a personal dispute over sharing breakfast, the Court held that the dispute was personal in nature and did not arise out of and in the course of the employee’s employment. As he was not performing tasks required by or incidental to his employment at the time of the attack, his injuries were not compensable under O.C.G.A. §34-9-1(4). Id.
This does not mean that every injury resulting from an altercation between co-workers will be found non compensable. Georgia courts look to the cause of the dispute in making a determination of whether an injury arose out of and in the course of the employment. In those situations where an employee is injured on the job in an altercation stemming from personal animosity, the injury would nevertheless be compensable if it is shown that the animosity arose from reasons related to the employee’s performance of his or her work duties. Baldwin v. Roberts, 212 Ga. App. 546; 442 S.E.2d 272 (1994). This was the situation in Baldwin, where the employee, a fast food worker, was asked by the restaurant owner to clock out and leave the premises after getting into an argument with customers. When she would not do so, the owner called the police to have her escorted out of the building. The employee alleged that in the process of being removed from the premises by three police officers, the owner struck her in the face causing injury. The Court of Appeals, in holding that the injury was compensable under the Workers’ Compensation Act rather than in tort, stated that the altercation arose from reasons related solely to the performance of the employee’s job, interacting and serving customers. That the claimant also yelled personal and derogatory remarks at the owner in the process of her removal was of no consequence, as the entire ordeal had already been initiated by a work related issue. Id.
As evidenced in Baldwin, the issues of a dispute do not need to remain solely work-related throughout the dispute as long as the animosity initially arose from reasons involving the employee’s performance of his or her work duties. In a similar scenario, a security guard assaulted a supermarket produce manager resulting in a broken jaw, lacerated chin and the loss of several teeth. The security guard, who had never had any unpleasant interactions with the produce manager in the past, publicly accused the produce manager of stealing merchandise. After the produce manager was cleared of any wrongdoing, the security guard apologized and the issue was seemingly concluded. Soon after; however, the security guard accused the produce manager of calling him “stupid” and the assault occurred in the dispute which immediately followed. Once more, the Court cited the rule that where an employee is injured in a physical altercation with another person occurring on the job but stemming from personal animosity, his injuries will be compensable if it is shown that the animosity arose from reasons related to the employee’s performance of his work-related duties. As the dispute between the two co-workers originated from the work accusations rather than the name calling, it was found to be rooted in the performance of the produce manager’s duties. Lindsey v. Winn Dixie Stores, 186 Ga. App. 867; 368 S.E.2d 813 (1988). This line of cases would seemingly allow a Claimant to point to any past work-related dispute with a co-worker as the original cause of an altercation, though he would also have to prove that the dispute was the origin of the animosity between the two.
Thus, in determining whether an injury resulting from an altercation with a co-worker is compensable, Georgia courts look to the cause of the dispute. If the attack is found to be related to the claimant’s employment, rather than for reasons purely personal to the claimant, it will be compensable.
There are exceptions to the previously stated rules however. Where the injured employee was the aggressor in the altercation, the injury will not be compensable even if the fight arose out of job-related activities. Under O.C.G.A. §34-9-17(a), “no compensation shall be allowed for an injury or death due to the employee’s willful misconduct, including intentionally self-inflicted injury, or growing out of his or her attempt to injure another.” In such a case where the injured employee was the initial aggressor, the injury was not an accident arising out of the employment within the meaning of the Act. Liberty Mut. Ins. Co. v. Reed, 56 Ga. App. 68; 192 S.E.2d 325 (1937).
In Reed, the employee was a former union member that continued to work while the rest of the union members went on strike. Growing violence around the job site led the employer to provide the workers transportation in order to get them to work through the gathered mob outside. When the employee’s car was stopped on the way into work he fired a shot into the crowd and was subsequently killed by one of over one hundred shots fired back in response. His widow filed for and was refused death benefits by the Court of Appeals. While the Court held that the employee’s death was causally connected with the employment, the injury was not found compensable as he had initiated the altercation by firing his weapon into the angry crowd. However overmatched, as his injury grew out of his attempt to injure another, the accident did not arise out of the employment within the meaning of the Act. Id.
Bullets and physical force are not always necessary for a claim to be denied based on this “aggressor defense.” The Georgia Court of Appeals in Kimbro v. Black & White Cab Co., 50 Ga. App. 143; 177 S.E. 274 (1935), held that an employee’s use of “strong language” can make the employee the aggressor of an ensuing altercation. In Kimbro, an employee was assaulted by his co-worker after he called the co-worker a “liar.” As the fight was precipitated by employee’s use of strong language towards his co-worker, his injury was not held to be compensable under the Workers’ Compensation Act. Id. While case law has not explicitly updated or defined “strong language” since that time, the legal precedent remains in effect that insulting or provoking words alone can initiate an altercation such that the speaker is the aggressor even without physical contact.