CA: Bus Driver Was Not Initial Physical Aggressor After Being Spat Upon and Threatened by Passenger

CA: Bus Driver Was Not Initial Physical Aggressor After Being Spat Upon and Threatened by Passenger

SAN FRANCISCO, CA – The California Workers’ Compensation Appeals Board affirmed an award of workers’ compensation benefits for a bus driver who was injured during an altercation with a passenger. As explained by the WCAB:

[A]pplicant was driving a bus on which Allen Edwards (Edwards), who was then a juvenile, was a passenger. Edwards was cursing. Applicant ordered Edwards off the bus. As Edwards was leaving the bus, he cursed at applicant and spat at him twice. Edwards then exited the bus. Applicant followed him off the bus. Edwards approached applicant, a few inches from his face, and said that he would “kick his fucking ass right now, mother fucker.” Applicant then shoved Edwards. The altercation ensued. Applicant injured his back. (footnotes omitted)

The WCAB, which had reviewed videotape evidence of the actual events, found “there can be no doubt that Edwards’ acts of spitting and cursing were intended as aggressive acts” and that Edwards confronted the applicant when he got up to applicant’s face and said he would “kick his fucking ass right now”. As explained by the WCAB:

We believe that the combination of the spitting, a battery, and Edwards’ threat to “kick [applicant’s] fucking ass” were enough to convince a reasonable person that he faced a “real, present and apparent threat of bodily harm.” Therefore, we hold that Edwards was the initial physical aggressor in this altercation.

The WCAB further held that the employer, not the applicant, has the burden of proof as to initial physical aggressor under Calif. Labor Code Section 5705.

The WCAB concluded that since applicant’s injury was not barred by Calif. Labor Code Section 3600(a)(7), it did not consider whether applicant’s actions were “reasonable”.

“Even if his behavior were unreasonable, about which we express no opinion, it would not bar compensation for his injury”, stated the WCAB.

Read the panel decision

Source: Calif. Workers’ Compensation Appeals Board