The Missouri Commission decided a case in which a worker alleges his supervisor body slammed and choked him and the supervisor claims the worker started the whole thing and hit him in the mouth. The Commission found there was no “assault”, and that the ALJ wrongly denied benefits. Reis v Shade Tree Service Company, 2013 MOWCLR LEXIS 187 (lexis.com), 2013 MOWCLR LEXIS 187 (Lexis Advance) (September 25, 2013).
The term “assault”, like many terms, is never defined in the worker’s compensation statute. It is defined in the criminal statutes. Section 565.070 indicates that assault includes offensive and provocative contact or recklessly causing physical injury. The assault statute in the past has been applied to award comp benefits to a nurse when her dialysis patient put his hand under her blouse. Jones v Washington University, 239 S.W.3d 659 (lexis.com), 239 S.W.3d 659 (Lexis Advance) (Mo. App. 2007).
Assaults on the job are compensable in Missouri unless they are purely personal provided the claimant is not the first aggressor. This defense is commonly referred to in school playgrounds as the “he started it” rule. The ALJ denied benefits on the finding of fact that the worker was the first aggressor.
Reis started as a request for a temporary award of benefits for recurrent back and leg pain after the worker scuffled with his supervisor. The Commission awarded benefits, reversed the denial, and decided there was no assault because there was “no intent to harm each other.” The Commission further notes “we are impressed with the neutral witness testimony that no punches were thrown and by the fact that both parties apparently disengaged when it became apparent someone was injured.” Seriously?
One explanation for the contorted definition of assault could be found in the findings of fact. The Commission notes the worker “could have conducted himself in a more appropriate manner” but went into extensive findings that the supervisor behaved badly on previous occasions. The strong implication is that it rejects the finding of the ALJ that the claimant was the first aggressor without wanting to make a first aggressor issue for the court of appeals. In what appears to be an attempt to not deny benefits when a supervisor allegedly behaves inappropriately, the Commission may have started a much bigger fight when assaults are covered under the comp Act.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.
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