Assaults at the Workplace – The Defenses May Not Be What You Think

For some odd reason, we have had several workplace assault claims come to us recently. As a result, we have had to dust off and update our research into the compensability of the claims and the injuries sustained. The defenses available in these type of claims are quite limited and, to many, surprisingly so.

The best way to understand the facts that have to be obtained in order to defend a case for injuries due to a workplace assault is to review the cases themselves.

In one case, a sanitation worker was injured when he was punched in the face by a coworker. The reason for the punch? The petitioner was known as a “kidder” who unfortunately was kidding an older co-employee throughout the workday. His final act of kidding involved coming from behind his coworker and thrusting his pelvis into the coworker’s back. The coworker then turned and punched the petitioner in the face.

What is interesting is that the Judge dismissed the claim, concluding that the confrontation had not arisen out of employment, but was caused by the petitioner’s personal “proclivities motivated from some part of his personality that I cannot fathom.”

Despite the Judge’s humorous and accurate thought process, the Appellate Division reversed and found the claim compensable. First, the Court noted that this was an act of horseplay. They noted that the statute and the caselaw expects some level of horseplay to take place during work hours. The statute does not rule out compensability when it is the instigator of the horseplay who is injured. That is a key to remember. Instigators are entitled to compensation under each of the cases we have reviewed. The Court noted that a certain amount of horseplay is to be expected among coworkers, and injuries that result are still compensable.

• A similar case involved a fight between co-employees who were retaliating against one another while they were hosing down the factory floor.
• Another claim was found compensable when coworkers fought simply over attempting to get around each other in a crowded locker room.

The key to the Court’s decision is that the injuries will not result in compensation if the assault is “due only to personal animosity.” Otherwise, if the work of the participants brought them together and created the conditions that resulted in the clash, compensability will be found.

The basis for the altercation and assault must be definitively determined. If it is something that simply grows out of the workplace atmosphere and sharing space together, the Courts will conclude the resulting injuries are compensable. On the other hand, if the clash is due to personal animosity — relationship outside of the workplace such as an unpaid gambling debt, or a personal relationship with a shared girlfriend, for example — those are matters that can be denied. The Court looks at the following factors:

1. The extent and seriousness of the deviation;
2. The completeness of the deviation;
3. Whether it was comingled with the performance of duty or involved in the abandonment of duty;
4. The extent to which the practice of horseplay become an accepted part of the employment;
5. The extent to which the nature of the employment may be expected to include some such horseplay.

In order to defend these claims, a thorough fact investigation must be conducted amongst all employees. If there is a non-work related issue between the employees stemming from an outside-of-work circumstance, they have the opportunity to deny and win your denial. On the other hand, if the altercation is simply due to sharing the same space and horseplay that would not be considered a serious deviation, then benefits will be awarded even if the injured worker is the instigator of the event.