Under Section 406.032 of the Labor Code, a carrier is not liable for compensation if the injury was caused by the employee’s willful attempt to injure himself or to unlawfully injure another person. An insurance carrier is also not liable if the injury arose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment.
Intentional/willful injuries are often difficult for a carrier to prove because, by their very nature, they require a heavy focus on the state of mind of the claimant or of the third party who supposedly committed the intentional action. Once a carrier raises a willful intent to injure defense, the burden of proof is shifted to the claimant to prove by a preponderance of evidence that the defense does not apply.
The so called “personal animosity doctrine” is the exception contained in section 406.032(1)(C). It states that the carrier is not liable if the injury arose out an act of a third person intended to injure the employee because of a personal reason.
Although an employee’s employment may be an opportunity for the wrongful act to occur or may give a convenient occasion for the commission of the wrongful act, an injury does not necessarily arise out of the employment if an intentional assault by a third party is not connected with the employment, or is for reasons personal to the victim as well as to the assailant. The mere fact that the injury is caused by a co-employee is not controlling of the question of whether the injury is compensable. Mackey v. UP Enterprises, Inc., 935 S.W.2d 446 (Tex. App. – Tyler 1996, no writ).
For a sexual harassment case to be compensable, the assault may not be personal to the victim or committed for reasons personal to the victim or assailant Bomar v. Walls Regional Hospital, 983 S.W.2d 834 (Tex. App. – Waco 1998), reversed 9 S.W.3d 805 (Tex. 2000).
Where the carrier introduces evidence that the claimant was injured while willfully attempting to injure another person, the claimant then has the burden of proving that he was not injured while willfully attempting to injure another. Texas Workers’ Compensation Appeals Panel Decision No. 91032.
The claimant is not necessarily precluded from having a compensable injury if he is engaging in self defense. In Appeals Panel Decision No. 91047, the claimant was injured during a fight that he entered into at work in order to protect his nephew who was also a coworker. The Appeals Panel held that after evidence of the fight was introduced, the claimant had the burden of proving that the exception to coverage did not apply. The Appeals Panel stated that there would be coverage where the employee’s injury resulted from a dispute arising out of the employee’s work or manner of performing it and the employee’s acts growing out of the dispute where done in a reasonable attempt to prevent interference with the work or in reasonable self defense.
Another factor that the Appeals Panel may look at is whether the claimant had an opportunity to withdraw from a dispute or altercation, yet fails to do so. In Appeals Panel Decision No. 91070, the Appeals Panel decided that a claimant was not covered for injuries that he had sustained after he attacked another worker where the fight started because of a non-work related name calling incident and where the claimant had the opportunity to withdraw from the altercation.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation defense attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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