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In the spirit of togetherness our firm’s attorneys have continued to meet over Zoom for Happy Hour. Despite our best efforts at keeping things light, the discussions have often taken a turn away from all things happy to the new normal of our lives – endless social distancing, the smoked-filled skies of California, challenges of homeschooling and when would we be able to comfortably eat at a restaurant again.

The conversation about restaurants reminded me of the trouble I was having with my most recent case, which I was glad to share with the rest of my colleagues. The infinitely-smug applicant attorney Ron Summers had recently taken on a case against one of my favorite establishments, Jack’s Diner. As Ron told it, his client, a server, was just doing his job when a dispute arose with one of the patrons.

Words turned to heated words, which led to shouts which resulted in a physical altercation. When all was said and done, the server had been left with a nasty shiner on his perfect “angelic face, like a young Toby Maguire” (Ron’s words), while the patron walked away relatively unscathed. The trauma of the attack would haunt his client forever, Ron claimed.

I then mentioned to my colleagues that on one of my recent trips to pick up takeout at Jack’s Diner I had the opportunity to speak to the owner, Jack, about what had occurred. Evidently, the server did get into a heated verbal altercation with the patron, who was very displeased that they were out of their famous clam chowder.    As the altercation became louder, the server swatted the patron with a menu and in turn the patron landed a solid left hook.

That’s when Hoang Nguyen of our Kegel Tobin & Truce Ontario office piped up. He had recently dealt with a very similar set of facts and had prevailed under the argument that the applicant was the initial physical aggressor under California Labor Code §3600(a)(7), in Knobler v. Los Angeles Unified School District (ADJ10983154).1

Labor Code §3600 provides the criteria for a compensable injury. Labor Code §3600(a)(7) specifically excludes injuries which “arise out of an altercation in which the injured employee is the initial physical aggressor.” As with many defenses, the burden of proof lies with the defendant.

Hoang explained that in Knobler the applicant was a school teacher who was punched in the chest by a student and claimed both physical and psychiatric injury as a result.

Leading up to the altercation, the teacher was standing in a classroom doorway after the bell rang between classes. A dispute began with a student who wished to pass through the door and leave the classroom. Although the teacher alleged that the student purposefully spat in his face during the quarrel, witnesses described a scene in which the student shouted at the teacher with such vigor that spit flew out of his mouth inadvertently. The teacher then slapped the student on the cheek (by accident he claimed), which is when the student landed his punch.

At the trial level, the workers’ compensation judge (WCJ) agreed that the teacher had been the initial aggressor in the argument and issued a finding that there was no injury AOE/COE. Applicant then filed a Petition for Reconsideration.

The panel agreed with the WCJ that the applicant’s claim was barred as he was the initial physical aggressor of the altercation. Their decision relied heavily on the Supreme Court of California decision Jessie Mathews v. Workers’ Comp. Appeals Bd., 6 Cal. 3d 719 and the use of the word “physical” within the Labor Code §3600(a)(7).

Citing Mathews, the Appeals Board explained:

One is not an initial physical aggressor so long as he confines his antagonism to arguments, epithets, obscenities or insults. Instead, an “initial aggressor” is one who first engages in physical conduct which a reasonable man would perceive to be a real, present and apparent threat of bodily harm.

The physical conduct does not need to involve actual touching, but can be an action that the other party reasonably perceived as threatening.

Hoang then said that the applicant attempted to argue that by yelling in his face and spitting on him, the student was the initial aggressor. The Appeals Board disagreed, as witness testimony supported that the spitting was because of the verbal altercation and it was the applicant who first made the argument physical. There was no evidence presented that the applicant was in reasonable fear of a physical attack before he struck the student.  It did not help the applicant’s credibility that in his testimony he downplayed the force with which he slapped the student, which was rebutted by witnesses.

Hoang cautioned that the determinations are very fact based. Whether or not the server in my case would actually be considered the initial physical aggressor would depend upon whether or not he reasonably perceived that he was in “real, present and apparent threat of bodily harm” when he struck the patron with the menu; and in turn, if that represented an actual physical threat to the patron.

This is when I remembered Jack had also helpfully mentioned that the applicant resembled famed wise guy, acclaimed TV and film star James Gandolfini, while the patron was significantly smaller in stature. It’s a wonder the patron was even able to reach, let alone bruise, the applicant’s face.

Just as we were going to log off, another square appeared in our Happy Hour. It was George the Bartender!     He joined to share with us his latest creation, an Autumn Apple Cocktail. We prepared our drinks, and raised them in honor of Hoang’s win. George put the happy in happy hour!


All characters at my home bar are fictional and the storyline is simply a product of my animated imagination.

As Hoang cautioned cases where you attempt to prove an applicant was the initial physical aggressor rely heavily on the facts of the alleged incident. Having multiple corroborating witnesses is an asset in a case like this, in addition to determining the state of mind of those parties involved in the alleged altercation. It is not a defense that is easily argued without sufficient evidence and a skilled attorney.

While Knobler lacks the designation “significant panel decision,” Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, always liked to remind me of one of his favorite portions of the Labor Code, subtitled “Specific Additional Evidence Allowed,” §5703(g) which states in relevant part as follows:

The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (emphasis added)

He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”

We’re still making our own doubles. May George guide my hand. Bottoms up, friends, and keep washing your hands.

1 A copy of Knobler can be obtained via email request.

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