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A Texas airline agent was suspended after being caught in a wild viral video trading blows with a woman.  Reportedly, the customer yelled racial and homophobic slurs at him.  The video of the incident is available on the internet.

The video was remarkable. At one point, agent and the customer were separated by an individual.  At one point, it appears that the customer reached over and initiated contact with the agent.  This contact appears to infuriate the agent.  The video shows a number of interactions.

Hypothetically, we are going to assume that the agent sustained an injury during the encounter and that it occurred after the alleged touching by the customer.  Which actions on the video was physical contact? Who make the first aggressive physical contact?  Note: this hypothetical will not address the possibility of a psyche claim.  The incident involved racial and homophobic slurs by the customer which could provide a basis for such a claim.

If so, could the agent have a legitimate valid physical injury workers’ compensation case?  This article will discuss how this question would be addressed within the California Workers’ Compensation System.

What Is the Defense Against This Claim?

In California, there is an  initial aggressor defense.  A claim can be barred “[w]here the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.” This is per Labor Code Section 3600.   In this matter, determining whether the  agent was the initial physical aggressor is quite confusing.  It is possible that not all of the interactions were caught on tape.  Likewise, whether certain actions constituted physical aggression is a matter of interpretation.

With this said, the interaction in this matter was quite complex.  An insurance carrier may deny the claim based upon the fact that there was contact that arguably was initiated by the agent.

Since There May Be A Dispute On A Matter Like This, How Would It Be Handled In The Workers’ Compensation System?

In California, there is the Workers’ Compensation Appeals Board.  The Board has local offices.  These offices have Judges that are able to adjudicate claims.  These Judges are called Administrative Law Judges or ALJs.  Not only do ALJs try cases, they also act as the “finder of fact.”  Since the Judge is the “finder of fact,” there is no need for a jury.  Jud  Thus, there are no jury trial in workers’ compensation.  All decision as made by the Judge.

In a case like this hypothetical, the Judge would likely receive testimony from the Injured Worker and other witnesses.  Also, the video of the event most likely would be taken into evidence as well.  The Judge would examine all of the evidence to make a determination as to whether the employee was the the initial physical aggressor.

What if I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.

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