A Capehart Scatchard Blog

Shoulder Injury Arising From Altercation Between Co-Employees Held Compensable

By on June 14, 2019 in Compensability with 0 Comments

Sometimes tensions flare up between employees resulting in physical altercations with unexpected consequences.  A case in point is Bhut v. Aluminum Shapes, No. A-4652-17T1, 2019 N.J. Super. Unpub. LEXIS 1322 (App. Div. June 10, 2019).  The petitioner, Mr. Bhut, worked as a technician fixing manufacturing equipment.  He said that on May 21, 2017, he entered the employee locker room.  A co-worker, Mr. Stevens, had his feet up on a bench.  Bhut said he asked Stevens to move his legs but Stevens refused.   Bhut jumped over Stevens’s legs but his feet caught Stevens’s leg in the process.  According to Bhut Stevens threw a cup of soda at Bhut. 

Petitioner said he left the room but came back a few minutes later to wash his hands.  He ran into Stevens outside the locker room in a narrow walkway.  Stevens was holding a pizza box.  Bhut testified that Stevens pushed the pizza box at him as Bhut passed Stevens.  To keep the box away from him, Bhut swung his arm toward Stevens and hit a hat on Stevens’s head.  Stevens then threw petitioner to the floor.  Bhut maintained that he was not trying to strike Stevens when he swung at him.

A completely different version of facts was advanced by Stevens, who said that Bhut never asked him to remove his feet from the bench.  Stevens said Bhut pushed and kicked his legs off the bench. He claims that when he stood up, petitioner stepped in front of him and caused the Coke drink to fall on him.  Co-workers separated them.  Stevens said Bhut then returned a few minutes later and Bhut came at him.  Stevens side-stepped with the pizza box, and the next thing he knew Bhut struck him in the back of the head.  Stevens said he grabbed Bhut’s arm and the two men bounced off the locker and landed on the floor with Stevens on top of Bhut.  Stevens said he never pushed the pizza box onto Bhut.

There was no dispute that Bhut injured his shoulder in the fall.  Bhut filed a motion for medical and temporary disability benefits resulting in an order for benefits in the amount of $15,583.54.  The respondent appealed the decision of the Judge of Compensation.  Respondent argued that Bhut deliberately struck Stevens leading to the fall, which caused the shoulder injury.   As such, respondent argued that this was in the nature of a deliberate assault, disqualifying Bhut from recovery.

The Judge of Compensation found that the altercation between the two men arose during the fulfillment of work duties or doing something incidental to that, namely eating lunch on premises.  The Judge noted that there was no evidence of hostilities between the two men outside work.  Therefore there was no personal animus between the two men.  The Judge also rejected the argument that Bhut intentionally assaulted Stevens.  She said that neither man had any willful intent to injure the other.  She said, “The reactions of both Stevens and the petitioner were in response to what each felt was aggressive behavior.”  She found Mr. Bhut credible in his testimony that he did not intend to strike Stevens when he pushed the pizza box away from himself.

The Appellate Division affirmed the decision below.  The Appellate Division viewed this as an injury arising from work tensions.  The Court deferred to the Judge of Compensation on her findings of credibility of the witnesses and her finding that there was no intent by either man to deliberately hurt the other.  She found that each man was trying to protect himself from the other.

This decision illustrates a number of important rules.  First, the trial judge is in the best position to assess credibility of witnesses in factual disputes.  Secondly, when a series of escalating tensions occurs, it is very difficult to find that one party deliberately assaulted the other party.  This was not a case where an employee decided to assault a co-employee without prior provocation or tensions.  The Judge viewed these facts as a series of two separate events minutes apart where each party saw the other as the aggressor and tried to defend himself.  The decision of the Judge of Compensation made good sense, and the Appellate Division properly deferred to the Judge below on determination of credibility.  Perhaps the case could have been viewed as one involving “horseplay.”  That rule says that the victim of horseplay is always covered for injuries, and the aggressor may also be covered under certain circumstances.

Thanks to Rick Rubenstein, Esq. for bringing this case to our attention.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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