WCLA MCLE

1. WCLA MCLE • Altercation & Fight Cases: Proof & Defense • Thursday June 10, 2010 • 12:00 pm to 1:00 pm • Matthew J. Novak of Garofalo, Schreiber, hart & Storm, Presenter • James R. Thompson Center Auditorium, Chicago, IL • 1 Hour General MCLE Credit

2. Issue • Are fights and altercations at work covered? • “Accidental injuries arising out of and in the course of the employment” • Special burdens or defenses? • How does collateral estoppel fit in? • Physical-physical? Physical-mental?

3. Supreme & Appellate Court Cases • (+)Petitioner wins; (-)Respondent wins • + Pekin Cooperage, 285 Ill. 31 (1918): barrel raiser fights co-employee “details of which are clouded in the obscurity which usually attends such occurrences;” drunk assailant took staves; “origin in some risk of the employment” or connection to employment: “infirmity of temper, or worse, may be expected, and occasionally blows and fighting;” Claimant was “not responsible for the assault.” • + Swift & Co., 287 Ill. 564 (1919): dispute over who would fix leak; “who was the aggressor” has some bearing on whether the dispute arose out of the employment or was personal, but is not “necessarily decisive” • + Chicago Rock Island, 288 Ill. 126 (1919): Decedent killed by co-worker whom decedent reported had left work early; killer came back later

4. Supreme & Appellate Court Cases • - Marion County Coal, 292 Ill. 463 (1920): dispute over cars in coal train; Decedent was “aggressor” for cursing killer; “interests of the employer” were not being “aided, protected or advanced” and there was “no reasonable connection” to work • + Franklin Coal, 322 Ill. 23 (1926): dispute over route; shooter comes back six days later; “causal connection” not severed; “prerequisite” the claimant “shall not have been the aggressor;” “rulings laid down” in other cases • - Triangle Auto Painting, 346 Ill. 609 (1931): dispute over use of tool; “It is not the intent of the Act that an employee be protected against the consequences of a fight in which he was the aggressor though the fight be over matters of work;” Petitioner had “put his hand against assailant’s breast” • - Riley, 394 Ill. 126 (1946): Petitioner superintendent fired assailant over work hour dispute; Petitioner got a gun but was shot first by assailant; firing assailant was not part of claimant’s job; Petitioner was aggressor because he got a gun

5. Supreme & Appellate Court Cases • - Armour & Co., 397 Ill. 433 (1947): Petitioner interposed himself in dispute between boss & assailant; Petitioner made nasty remark and kicked assailant; no connection because outside of Petitioner’s duties to discipline co-worker; Petitioner was aggressor because he initiated • - Container Corp., 401Ill. 129 (1948): Decedent killed by assailant after dispute about earlier work accident; Decedent threatened assailant; assailant pushed decedent who struck his head and died; delay between accident and assault severs connection to employment; Decedent was aggressor because of threat to “cut your throat” • - Fischer, 408 Ill. 115 (1951): Dispute with foreman over loading trucks; Petitioner was aggressor by threatening and striking foreman • - Giganti, 73 Ill.2d 1 (1978): Dispute over union grievance of another worker; not related to the employment; Petitioner was aggressor by pushing against door into meeting

6. Supreme & Appellate Court Cases • - Laboy, 74 Ill.2d 18 (1978): Dispute was really over lottery tickets and was personal; unavailable assailant’s testimony at preliminary hearing in criminal matter was erroneously admitted into evidence by Arbitrator (no opportunity for Petitioner to cross-examine) • + Ford Motor, 78 Ill.2d 260 (1980): Dispute over Petitioner ratting out assailant to boss about welding job; Petitioner made first contact but was not the aggressor; who makes first contact is not “decisive;” totality of circumstances determines who is aggressor • + Rodriguez, 95 Ill.2d 166 (1983): Unexplained assault due to neutral reason is compensable, as long as it is not personal; ethnic hatred is not personal; ethnic hater is like a “defective tool” (applies to non-participating victim of horseplay too; see Murray, 163 Ill.App.3d 1987) • - Castaneda, 97 Ill.2d 338 (1983): Personal dispute over exchange of vulgar words; no evidence to connect it to possible work dispute over time card from day before

7. Supreme & Appellate Court Cases • + Graphic Group, 167 Ill.App.3d 1041 (1988): Dispute over spilled paint; Petitioner was not aggressor; (interesting statutory employer section1(a)3 issue) • + R.A. Cullinan, 216 Ill.App.3d 1048 (1991): dispute over truck right of way; Petitioner was not aggressor, even though Arbitrator had found otherwise • + Village of Winnetka, 250 Ill.App.3d 240 (1993): Dispute over garbage collection schedule; Petitioner was not aggressor; assailant’s on-going behavioral problem is work related • + Chicago Park District, 263 Ill.App.3d 835 (1994): Attorney Petitioner fights with boss over legal issue; post traumatic stress disorder; Petitioner not aggressor; PermTotal taken away

8. Supreme & Appellate Court Cases • + Kochilas, 274 Ill.App.3d 1088 (1995): Petitioner painter fights with police over bringing dog to subway for protection; Petitioner not the aggressor because he didn’t know they were police; allowed to have dog at work • + Franklin, 211 Ill.2d 272 (2004): Dispute over cosmetics sales; Commission denies because both assailant and Petitioner were aggressors; Supreme Court says there can be only one aggressor and although difficult, Commission must make that determination; Who was the aggressor? • Foster v. Johnson, 378 Ill.App.3d 197 (2007): Is there a third-party case against assailant co-worker or employer? Does exclusive remedy protection apply?

9. Recent IWCC Cases • - Brown v. DaVinci, 2009 IWCC 0666: Petitioner loses because he was the aggressor when Petitioner threw the first elbow and had a well-known “short fuse” • + Soumare v. Cargill, 2009 IWCC 0777: Dispute over breaks and time cards; video-tape confirms that Petitioner was not the aggressor • - Bulliner v. Swit, 2009 IWCC 0865: Commission reverses Arbitrator and denies compensation; fight was personal over girlfriend

10. Recent IWCC Cases • - Giles v. Cardinal Health, 2009 IWCC 0936: Petitioner repeatedly called assailant “larita” (little rat); credible evidence that petitioner was aggressor; fight was strictly personal • + Langellier v. Hoopeston, 2009 IWCC 0973: Dispute was over proper procedure for loading beans; Petitioner was not the aggressor and threw no punches

11. Darius Wicks v. Bassgar, Inc. d/b/a Grant’s Appliances02 WC 005424 • DA 1-6-02 • Petitioner 25 year old delivery driver • Petitioner disagreed with supervisor over delivery route, specifically last delivery • Round 1: Petitioner grabbed by supervisor • Round 2: Petitioner followed supervisor into warehouse where supervisor struck him more • Petitioner sustained Left arm FX • Testimony by another worker • Testimony by another supervisor • Petitioner convicted of battery after bench trial (pro se)

12. Arbitration DecisionWicks v. Grant’s 02WC005424 • Arbitrator Hennessy in Joliet • “The Petitioner is collaterally estopped on the issue of whether the supervisor is at fault regarding the altercation because that issue has been already determined by the criminal courts using a higher standard of proof and convicted the Petitioner of battery.” • “The Petitioner has failed to prove at what point during the altercation he fractured his arm” Round 1 or Round 2? • The supervisor was attempting to flee; therefore, Petitioner was the aggressor • “No accident arose out of and in the course of the Petitioner’s employment with Respondent.”

13. Commission DecisionWicks v. Grant’s 07 IWCC 1248 • Mason, Demunno, Gore • “The doctrine of collateral estoppel does not apply unless the issue in the prior adjudication is identical to the one presented in the suit in question….Determination of who was the initial aggressor was neither necessary nor essential” to the criminal conviction • Petitioner was not the aggressor in Round 1 at which time he fractured his arm • Award for $13K in medical, 27 3/7 weeks TTD, 25% loss of use of the left arm

14. Circuit Court DecisionBassgar, Inc. v. Wicks 07 MR 947 • Judge Bobbi N. Petrungaro • The question is whether a criminal conviction can have an estoppel effect on civil litigation • 3 requirements: 1) identical issues; 2) final judgment; and 3) party in privity • Identical issues because criminal court must have found that Petitioner had no legal justification for battery; therefore, he must have been the aggressor • Decision of Arbitrator affirmed(? Reinstated?)

15. Appellate Court DecisionBassgar v. IWCC349 Ill. App.3d 1079, 917 N.E.2d 579, 334 Ill. Dec.753 (2009) • Husdson, McCullough, Hoffman, Holdridge & Donovan • Claimant represented himself at the trial and his testimony was the only evidence presented on his behalf…However, claimant offered the following explanation for the guilty verdict: "The result of the trial they said that because I followed him after he tackled me, that on their part they said I was guilty for the battery because I followed him after he tackled me, for that part.“ • In this case, a review of the totality of the circumstances supports the Commission's determination that claimant was not the "initial aggressor.”The evidence presented at the arbitration hearing establishes that although the "altercation" between claimant and Armstrong lasted no more than five or ten minutes, there were actually two separate acts of aggression It was the first act of aggression that persuaded the Commission to conclude that claimant was not the initial aggressor. The evidence set forth above supports the Commission's finding. In particular, the evidence establishes that although claimant instigated the verbal dispute, he attempted to walk away. • No collateral estoppel because: There is no evidence that the court hearing the criminal charges considered claimant's role in the first act of aggression. In contrast, the Commission clearly did. It found that claimant was not the "initial aggressor" with respect to the first act of aggression. And, as we concluded above, the Commission's finding regarding the identity of the aggressor is not against the manifest weight of the evidence. Therefore, the issue decided in the criminal prosecution was not identical to the issue presented in the workers' compensation suit, and collateral estoppel does not apply.