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) This story is reprinted with permission from FC&&S Legal, the industry’s only comprehensive digital resource designed for insurance coverage law professionals. Visit the website to subscribe. 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

About John Fagan

John is a Jacksonville native who grew up on the First Coast. He graduated from Bishop Kenny High School in 1975 and went to college at Florida State University where he completed a 4-year program in 3 years. John graduated from the Florida State University College of Business in 1978 and went straight into Florida State University College of Law. While in law school, John earned a position on the prestigious Law Review Board serving as its Business Editor. As a law student, John studied in the Oxford program. He also interned with the Florida Legislature working in the Florida House of Representatives Criminal Justice Committee. John was admitted to the Florida Bar in 1981. John began his legal career as a law school intern in the State Attorney's Office in Jacksonville in 1981. After his internship, legendary State Attorney Ed Austin hired John as a full-time Assistant State Attorney for the Fourth Judicial Circuit (Clay, Duval, and Nassau Counties). As a prosecutor, John tried jury and non-jury trial on charges ranging from DUI to Murder. In 1983, John moved from the State Attorney's Office to begin his career in private practice. He has practiced law for 30 years on the First Coast. For the last 20 years, John and his family have made Clay County their home. John limits his practice to personal injury and disability cases. While there are many fine attorneys in Clay County, John is one of only a few Clay County attorneys who limit their practice to personal injury and disability cases. John takes pride in helping clients resolve injury claims in ways that avoid the stress, uncertainty, and the expense of unnecessary litigation. Professional Activities John is the past President of the Clay County Bar Association and has served on the Board of the Clay County Bar Association from 2009-2013. He is an active member of the Florida Bar, and the Federal Bar of the Middle and Southern Districts of Florida. He is also a member of the American Association of Justice, the Florida Association of Justice, the National Organization of Social Security Claimants' Representatives, and the National Organization of Veterans' Advocates. Service to the Community John is involved in the Clay County Community serving as a member and Director of the Rotary Club of Orange Park, of the Clay County Bar Association, and the Putnam County Bar Association.
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