Much has been written lately regarding a legal foundation in workers' compensation, the compensability test of “arising out of." While the recent state of litigation is largely tied to the reasonably recent appellate decision in Valcourt-Williams v. Sedgwick, the “arising out of“ concept has deep historical routes.

Judge David Langham

Our Florida workers' compensation law has long regarded necessary connections to employment in order that an injury is compensable. The first has been seemingly more complicated, that the injury arises out of the employment. The second is a separate test regarding whether the employee was, at the time of injury, in the "course and scope” of employment.

These requirements were included in Chapter 440 largely as a matter of artifact. The vast majority of state workers' compensation laws were copied from one state to the next, beginning with the origins of workers' compensation in the early 1900s. Thus, these two phrases are common in various statutes across the country.

Without definition or delineation, the interpretation of these two phrases was left largely to the court in the early days of Florida workers' compensation. Based upon various sentiments of social justice, interpretations were largely skewed in the benefit of injured workers. Florida in 1993 responded legislatively with a definition of "arising out of."

There has been some intermingling before and since with the "course and scope" and the "arising out of" tests. Their interrelationship is perhaps among the most confounding in workers' compensation.

Pertinent to today’s discussion, Section 440.09(3) specifically precludes workers' compensation benefits when the injury results from the intent to injure another, often referred to as the “aggressor rule." When one becomes an aggressor, she/he may deviate from the "course and scope" and thus not be entitled to workers' compensation benefits. This may depend upon things like what the dispute regarded — a work issue or personal issue. In that context, the analysis might evolve from one of "course and scope" into one of "arising out of."

If a personal grievance is brought to the workplace, some jurisdictions have concluded that the dispute and resulting injury are not sufficiently connected to work to render injuries compensable. 

It may depend upon company policies regarding how violence or altercation is addressed. It may depend upon testimony about who was the aggressor in a factual situation that was viewed from different perspectives. In this respect, perhaps more of a "course and scope" analysis. The statute provides:

"Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates or other stimulants not prescribed by a physician; or by the willful intention of the employee to injure or kill himself, herself or another."

Having focused recently on workplace violence, specifically as regards mask requirements and psychology, news stories about violence have become more noticeable. The Workers' Compensation Hot Seat addressed the topic of workplace violence and its broadest senses.

But this new week brought news of different perspectives. There has been ample reporting on customer violence and the impact it has on workers and employers. But there is news that may illuminate a different question or questions.

What of the potential that an employee engages in violence? At the outset, it is suggested that such instances will likely involve a fair number of factual issues for resolution. It is very rare that there is a fight or altercation and all of the eyewitnesses provide unanimous conclusions regarding the who, how and why.

Two instances of workplace violence have been recently reported. In one, a retail clerk is accused of lashing out at a customer. The story suggests that the two had words, that a situation escalated and that the clerk assaulted the customer.

In another instance, in a food establishment, disagreement over the product and service escalated to confrontation. In each, there are differing views of who started it. In each, there is a suggestion that management may have not become aware of the escalation in time to intervene. 

In a story earlier in the week, a parent is said to have been speaking with/at a school principal regarding masks. The situation was perceived as troublesome, or worse, by a teacher who then intervened. That led to a physical altercation and ultimately to "lacerations to his face, some bruising and a 'pretty good knot on the back of his head.'”

Wrapped in this analysis, at least tangentially in Florida, is possibly the "stand your ground law." Under this, a threatened person in Florida has no duty to retreat when threatened with "great bodily harm to himself or herself or another." That is not a workers' compensation law, but it might make for interesting legal arguments. When confronted by a threat of violence from a customer, what is a worker to do? If a worker engages in violence and is injured in the process, what are the implications for customer and worker?

It seems probable that the workplace is stressful in the time of COVID-19. There is the potential that tempers could flare. The news reports seem to support that violence is occurring, and we are left to wonder how common this is. The potential for workers to be instigators or aggressors adds a wrinkle or perspective to the curiosity.

In terms of the so-called "aggressor rule" in Section 440.09(3), would the California teacher who interceded in the situation between parent and principal be an "aggressor?" Or would protection come from a statute like Florida's allowing one not to retreat when self or another are threatened? Will the issue of "how threatened" the principal was be relevant in factually determining the reasonableness of the intervening teacher's response? 

Would the employees in the retail and service story be involved in the same analysis of reasonableness? In the event of injury in these altercations, might these questions come down to the factual testimony of those who were involved and/or those who happened to observe?

There is, as mentioned, a challenge with eyewitness testimony. 

Life and workplace stress seems to be a given. We seem to be experiencing ongoing pressure and challenges throughout this experience. I recently spoke with someone who lamented how stressful a formerly enjoyable task, shopping, has become. Not only is there stress in our world, but the very things we perhaps found as solace are not only removed from life's positive column but are now in the negative.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.