THOMAS STONE, Applicant
GREENMAN TECHNOLOGIES, Employer
AMERICAN HOME ASSURANCE CO, Insurer
The applicant filed an application for hearing seeking compensation for a right ankle sprain that the applicant claimed he suffered in a fall during an attack by a coworker on July 17, 2003. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on May 5, 2005.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $722.68. The threshold issue in dispute is whether the applicant's injury arose out of his employment with the employer while performing services growing out of an incidental to that employment. If a compensable injury is established, ancillary issues included the nature and extent of disability and the respondent's liability for medical expenses.
Following the May 5 hearing, the ALJ issued an order dismissing the application on May 19, 2005. However, between the May 5 hearing and the May 19 decision, the applicant wrote to the ALJ offering new evidence directly contradicting the testimony of the respondent's witness about whether he had been charged as a result of the alleged attack. The ALJ -- evidently receiving this letter after signing his May 19 order -- withdrew that order and set the matter for further hearing. Following further hearing on September 19, 2005, the ALJ issued a second order, this one dated October 12, 2005, which found in the applicant's favor.
The respondent filed a timely petition for review of the October 12, 2005 order. The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:
The applicant, a local truck driver for the employer, hurt his foot in a fight with a coworker, Nicholas Meyer, on July 17, 2003. The fight started following a dispute about whether the applicant would help Meyer and another coworker, Travis, unload a truck on the employer's premises. Disputing the applicant's claim for worker's compensation for his foot injury, the respondent raises what is sometimes called the "aggressor defense."
The "aggressor defense," to the extent it applies in Wisconsin, is discussed in Vollmer v. Industrial Commission, 254 Wis. 162 (1948). In that case, Vollmer started an altercation with his supervisor, Balisteri, at work. The Industrial Commission denied Vollmer's claim for compensation, concluding that Vollmer was the aggressor and therefore his injury did not arise out of employment.
The circuit court reversed, holding the fight was the product of employment so any injury arose out of employment, and whether the aggressor or innocent victim, a worker injured in the fight should be allowed to collect compensation. Citing Wis. Stat. § 102.03(1)(c)1, (d), and (e) (which generally require the accident or disease causing injury to arise out of employment, while performing services growing out of an incidental to employment, but does not include self inflicted injuries), the state supreme court reinstated the commission's decision, holding:
An employee is not entitled to compensation unless at the time of the injury he "is performing service growing out of and incidental to his employment" and unless "the accident . . . causing injury arises out of his employment."
In the case at bar Vollmer, instead of continuing, as required in the course of his employment, to perform his duties as watchman on the second and other upper floors, deliberately stepped out of that course of employment by going down to the first floor and there assaulting Balistreri. That assault originated entirely by reason of Vollmer's conduct in furtherance of solely his own wrongful purpose and it was wholly outside the scope of his employment and foreign to his performance of any service growing out of or incidental thereto. In initiating the incident and making the assault on his own accord he was not performing any duty or service for his employer. Nor was the assault or the injury which he sustained a natural incident of the work which he was required to perform.
. . .
Consequently, the commission rightly found that the injury suffered by Vollmer did not arise out of his employment and while performing services growing out of or incidental to such employment; and on these grounds the order dismissing the application for compensation must be confirmed.
Vollmer, 254 Wis. at 166.
Other commentators have noted:
The rule originally stated in Vollmer ... is that an employee who deliberately engages in a fight with a co-employee has stepped out of the course of employment. Professor Larson notes that many jurisdictions make an exception when the strain of enforced close contact between the aggressor and the victim causes the fight to break out.... No Wisconsin appellate court has commented on this exception.
Neal & Danas, Worker's Compensation Handbook § 3.14 (5th ed. 2005).
In short, simply being in a fight at work does not automatically mean that a worker's injury is noncompensable. However, a worker deliberately steps out of the course employment if he "initiat[es] the incident and mak[es] the assault on his own accord." Vollmer, 254 Wis. at 166.
Did the applicant deliberately step out of the course of employment by his conduct on the date of injury, July 17, 2003? The accounts given at hearing by the two principal actors, the applicant and Meyer, are widely divergent.
Under the applicant's version of events, coworker Travis came into the breakroom, angry that the applicant declined to help him unload a truck. The men exchanged words, but not blows, and Travis left. Meanwhile, Meyer and the applicant's brother, Terry, were exchanging heated words on the same subject. Meyer then stood in the doorway smiling and "saying things" to the applicant and Terry.
Apparently about this time, the applicant admitted, he spit an apple seed into a trash can, and part of the apple hit Meyer. According to the applicant, Meyer threw a pack of cigarettes at the applicant, and began coming at the applicant. Meyer pushed the applicant, and the applicant pushed him away. On cross-examination, the applicant testified he slapped Meyer's face in this exchange. May 2005 transcript, page 36. Meyer then went outside, and told the applicant to "bring your big, fat ass out here."
The applicant testified he went outside, but to go to his truck, not to fight. As the applicant went down stairs outside the parking lot, Meyer came at him again. The applicant testified he then sidestepped and slammed Meyer on the stairs. As the applicant continued down the stairs, he testified, Meyer continued to come at him, trying to trip him. The applicant "kicked him, and I kept kicking him till he left me alone and got off me." May 2005 transcript, page 21. Asked at the hearing if that ended the altercation, the applicant responded
Well, at the bottom of the stairs, yeah, it ended by my brother pulling me off and telling me to leave him alone and get on my truck and go do my route."
May 2005 transcript, page 21.
Asked a little later how his ankle injury occurred, the applicant testified it was caused by :
Him [Meyer] kind of like knocking me down the stairs. And when he knocked me down the stairs and then sideswiped me, he kept coming at me. All the time he kept coming at me, he tried to grab my feet. And in the course of us falling, after the second or third time of him coming at me, that's when it twisted and we fell down the stairs.
May 2005 transcript, page 22. In this version, after the men rolled down the stairs, the applicant kicked Meyer several times. May 2005 transcript, page 44. Again, after the applicant reached the bottom of the steps, his brother Terry pulled the applicant off Mayer and told him to leave Meyer alone. In a statement given to a police officer, the applicant apparently admitted kicking Meyer one more time.(1)
Meyer's version of events was that he went into the breakroom when he heard the applicant and Travis yelling at each other. As he entered, Terry (the applicant's brother) asked Meyer what he was going to do. Next, Meyer testified, the applicant walked up to him and spit in his face. According to Meyer, he merely smiled at the applicant, because he knew the applicant would get a suspension for that act. The applicant then punched Meyer in the face.
Meyer testified he stumbled back, and the applicant struck him in the face again. Meyer fell down the steps leading to the parking lot, and Terry hit him. Then the applicant and Terry began kicking him. The men eventually stopped kicking Meyer, and went away. Meyer denied throwing the pack of cigarettes, trying to trip the applicant, or making any threatening moves.
Travis called the police who arrived and took statements. According to the police report, the officer saw that Meyer had a laceration above the left eye, swelling, bruising, a split in the upper lip and a bloody nose.
The applicant did not seek medical treatment for his injury until about two weeks after the fight. The applicant was first seen in an emergency room on July 30, 2003. A handwritten "Emergency Department Nurses Note" (exhibit 1) from that time recites:
was in alteration @ work on 2-17-03 -- Kicked a coworker [with] right foot -- had ecchymosis to toes initially then went away. Still swelling to foot.
A report Katherine Dillig, M.D., who treated the applicant in the emergency room on that day states:
The patient is a 46-year old, who presents with chief complaint of right leg pain. The patient states he kicked someone in the medial malleolus while trying to get this patient [sic] off him in an altercation at work approximately 10 days ago.
Exhibit 1, July 30, 2003 report of Dillig.
The applicant was treated and released from the emergency room. When his symptoms continued, he again sought emergency treatment, this time treating with K.M. Sollis, whose note for August 1, 2003 begins:
This 46-year old male hurt his right ankle on 7/17/03, trying to kick off an assailant at work.
At the hearing, the applicant presented separate Practitioner's Reports on Accident or Industrial Disease in Lieu of Testimony on form WKC-16B from both Dr. Dillig and Dr. Sollis. Box 4 of the form report asks the doctor to describe the accidental event or work exposure to which the patient attributes his or her condition, and states that office notes may suffice for this purpose. The reports of both Dr. Dillig and Dr. Sollis both contain the identical description at box 4:
physical fight w/co-worker -- fall down stairs while being attacked.
At the first hearing, the respondent introduced the report of the police officer at exhibit 2. He recommended charging both the applicant and Meyer with disorderly conduct. In fact, both men were charged and convicted of disorderly conduct. The applicant so admitted at the first hearing. Meyer denied being charged as a result of the fight at the first hearing.
The ALJ originally denied compensation, finding that the fight violated the employer's rules and that the applicant was aggressive and obnoxious in what was likely a "mutual combat" and a deviation from employment. In his decision, the ALJ observed that he did not believe Meyer's testimony he was not charged for his part in the fight, and that both men were likely lying in their version of events to some extent.
The ALJ's disbelief in Meyer's testimony about not being charged was later substantiated by the applicant. Following the first hearing and ALJ Falkner's first decision, the applicant sent the ALJ documents retrieved from the Wisconsin circuit courts for counties using the Consolidated Court Automation Programs (CCAP) Case Management system. The CCAP documents showed that Meyer actually had been charged. The ALJ ordered further hearing, at which Meyer explained that he had "forgotten" about being charged.
Following the second hearing, again, the ALJ withdrew his first decision, found that the applicant's version was substantially the truth, and awarded compensation. After the respondent appealed, the commission conferred with the presiding ALJ regarding witness credibility and demeanor. The ALJ explained that at the second hearing, Meyer appeared smooth and collected, indeed combative and flippant, in contrast to a more nervous demeanor at the first hearing. The second hearing left the ALJ with a starker picture of Meyer's misrepresentations at the first hearing. The ALJ added that the applicant's version of events drew support from the medical records.
On this last point, the medical records, the commission notes that the applicant testified at the hearing that he hurt or twisted his ankle in when he fell on the steps during the fight. That is the event to which the applicant attributed his injury in the practitioner's reports signed by Drs. Sollis and Dr. Dillig. However, the actual medical treatment notes from the doctors instead state the applicant hurt his ankle while kicking a coworker. That kicking-a-coworker version is stated in the emergency room nurse's notes as well. None of the actual medical treatment notes refer to a twisted ankle from a fall on the steps.
Indeed, the applicant's initial version of the fight during his testimony (May 2005 transcript, pages 19 to 21) does not mention that the applicant himself fell on the steps. Rather, the applicant testified that he sidestepped Meyer as he charged up the steps, slammed Meyer down on the steps, and began kicking him until his brother pulled him off. This is similar to the version given by the applicant in the police report. Later, when explaining how his injury occurred, the applicant added that Meyer knocked him down so that both men fell or rolled on steps. May 2005 transcript, pages 22, 44.
In other words, the record is inconsistent as to whether the applicant actually twisted his ankle in a fall down stairs as he testified and as his practitioner's reports state, or simply hurt his ankle and foot while kicking Meyer as the treatment records state. Further, in his statement to the police officer, the applicant specifically denied spitting on Meyer. However, at the hearing the applicant testified that, as he spit an apple seed in a garbage can next to Meyer, a piece of the apple struck Meyer. May 2005 transcript, page 95. These inconsistencies call into question the applicant's testimony to the effect that that he was simply reacting to an attack by Meyer on July 17, 2003. Moreover, the applicant admitted that the fight ended with his brother pulling him off Meyer after Meyer stopped fighting, and -- according to the applicant's statement to the police officer -- the applicant apparently giving Meyer a parting kick.
After reviewing the record, the commission is persuaded that the applicant played a much larger role in precipitating the altercation, or "initiating the incident and making the assault of his own accord," than he testified to. The commission concludes that, even under his own version of events, the applicant's behavior -- including spitting in Meyer's direction and slapping him in the breakroom -- led Meyer to call the applicant out to fight. The commission is also persuaded that the applicant then went outside to fight with Meyer rather than continue in his work duties. In so doing, the applicant deviated from or stepped away from his employment and, under Vollmer, his injury is not compensable.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed. The application is dismissed.
Dated and mailed April 14, 2006
stoneth2 : 101 : 1 ND § 3.14
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
cc: Attorney Jeffrey J. Strande
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]