No workers’ comp for employee injured after allegedly making anti-gay comments

When does a fight between coworkers become a workers’ comp claim? (Image: Shutterstock)
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Employers are justifiably concerned about workplace violence, worker safety and workers’ compensation claims. But does a fight between coworkers that ends with injuries become a workers’ comp claim?

In one recent case, a Louisiana appellate court said no.

The case

Steven Frederick Washington filed a workers’ compensation claim with the OWC alleging that, while driving a shuttle for Gallo Mechanical Contractors, L.L.C., for a work-related project, he was assaulted by another employee, Lamar Rogers, which resulted in injuries to Washington’s head, neck, back, and shoulders.

In response, Gallo and its insurer, Creative Risk Solutions (CRS), admitted that no wage benefits or costs for medical treatment had been paid and alleging that, according to their investigation, Washington:

[W]as operating a shuttle at the time of this incident. He serves as the initial aggressor as he called the other person involved a “homosexual,” and then stating “do you know what I could do to you that I learned in the pen?” Thus, Mr. Washington antagonized Mr. Rogers causing this altercation. Furthermore, this fight was not work-related. Because this incident involved fighting that is considered an intentional act and excluded by the Louisiana Workers’ Compensation Act, there exists no coverage under the Act for Mr. Washington’s aggressive behavior, the altercation, and the resulting injury.

Gallo and CRS moved for summary judgment.

Who said what?
The OWC judge considered the affidavit of Rogers, which indicated the following:

On the morning in question, after boarding the shuttle bus and while it was still in the parking lot, Mr. Washington “began talking about ‘gay’ stuff and implied that [he, Mr. Rogers] was gay;”
Mr. Washington talked about his experience when he was in prison and about how “the men would rape big guys like [him] (Rogers) all of the time and used graphic curse words to describe the male rape;”
Mr. Rogers advised Mr. Washington to “stop talking like that;” and
When Mr. Washington “continued to mouth off,” Mr. Rogers “pushed [Mr.] Washington on the backside of his head as if to say ‘be quiet.’”

Rogers also said that “Washington’s crude cursing remarks were a personal attack” on him.

Another Gallo employee, Michael Okray, indicated in his affidavit that Washington “was talking about lewd homosexual acts in a very offensive, descriptive manner” and that, after Rogers said “that he did not want to hear that talk,” Washington “continued to mouth off with lewd descriptive comments” and Rogers “slapped [Mr.] Washington on the side of his head with an open hand.”

The OWC judge granted summary judgment in favor of Gallo and CRS, concluding that “the uncontroverted affidavits attached to defendants’ motion for summary judgment indicated that the ‘altercation did not arise out of [Washington’s] employment because it was personal in nature.’”

Washington appealed.

Appeals court decision

The court affirmed.

In its decision, the court ruled that the altercation between Washington and Rogers did not fall within the parameters of an accident “arising out of and in the course of [Washington’s] employment.”

It reasoned that, for an altercation to be considered having arisen out of employment, there must be a showing that it was related to the employment itself, and not related to matters unconnected and extraneous to the employment.

The court then ruled that, given the nature of the verbal confrontation that had occurred immediately before the physical contact between Rogers and Washington, the OWC judge had correctly concluded that the altercation and injuries had not been caused by or related to Washington’s employment but had been “personal in nature.”

The case is Washington v. Gallo Mechanical Contractors, LLC.

Related: Enter Now! Nominate your program for the 2017 NU Workers’ Compensation Risk Management Award for Excellence

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