Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, 3202.5
Burden of proof on injured worker to prove injury by preponderance of evidence
Applicant failed to meet burden due to lack of credibility and evidence showing initial aggression
From the decision · page 1The injured worker holds the burden of proving injury by a preponderance of the evidence.
(Lab. Code,1 § 3202.5.) Section 3600(a) provides that: "[l]iability for the compensation... shall,
without regard to negligence, exist against an employer for any injury sustained by his or her
employees arising out of and in the course of the employment...." (Lab. Code, § 3600(a).)
However, section 3600(a)(7) bars an employee's claim for compensation where the injury arises
out of an altercation in which the injured employee is the initial physical aggressor. To "arise out
of an altercation," as required by section 3600(a)(7), an injury must result from an exchange
between two or more persons characterized by an atmosphere of animosity and a willingness to
inflict bodily harm. Section 3600(a)(7) also imposes the necessity of selecting one overt act out
Lab. Code, 3600(a) and (a)(7)
Liability for compensation exists for injury arising out of employment except where employee is initial physical aggressor in altercation
Applicant barred from compensation as initial physical aggressor
From the decision · page 1The injured worker holds the burden of proving injury by a preponderance of the evidence.
(Lab. Code,1 § 3202.5.) Section 3600(a) provides that: "[l]iability for the compensation... shall,
without regard to negligence, exist against an employer for any injury sustained by his or her
employees arising out of and in the course of the employment...." (Lab. Code, § 3600(a).)
However, section 3600(a)(7) bars an employee's claim for compensation where the injury arises
out of an altercation in which the injured employee is the initial physical aggressor. To "arise out
of an altercation," as required by section 3600(a)(7), an injury must result from an exchange
between two or more persons characterized by an atmosphere of animosity and a willingness to
inflict bodily harm. Section 3600(a)(7) also imposes the necessity of selecting one overt act out
Mathews v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 719
Definition of initial physical aggressor as one who first engages in physical conduct perceived as real threat of bodily harm
Applicant found to be initial physical aggressor based on evidence and credibility findings
From the decision · page 2of a series of hostile verbal, psychological, and physical acts as the one that, for compensation
purposes, caused the quarrel and elicited the ultimate injury. (Mathews v. Workmen's Comp.
Appeals Bd. (1972) 6 Cal.3d 719, 726 [37 Cal.Comp.Cases 124].) The Legislature's use of the
term "physical" aggressor indicates that it was primarily concerned with the increased risk of
injury which arises when a quarrel moves from an exchange of hostile words and nonviolent
gestures to a trading of physical blows. Thus, one is not an initial physical aggressor so long as he
confines his antagonism to arguments, epithets, obscenities or insults. Instead, an "initial physical
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. (Mathews, supra, 6 Cal.3d at p. 719.)