Fight Like a Girl: Appeals Decision Affirms Workplace Assault in Course & Scope
Compliments of “Girl Dad” Nick Krayer, in tandem with Mackenzie and Emilie, we have an appeals ruling from President Judge Jurden hot off the press. What makes this decision blog-worthy is its offering of a clear and concise template to evaluate assaults occurring “in the course of” but not necessarily “arising out of.” In this case, the identity of the assailants was never known and no one was ever charged, but there was a presumption on the part of law enforcement that “more likely than not” the attack was arranged by Claimant’s supervisor, taking personal animus to a whole new level with the aid of a baseball bat.
The IAB decision below, Jeremy Bottomley v. Alside Supply Center, IAB Hr’g No. 1475360 (June 20, 2019) concluded in favor of the Claimant that the injuries were sustained in the course and scope and arising out of the employment. The “in the course of” component was not challenged, noting that Claimant had secured his vehicle in his usual parking spot outside the building where Alside is located, at the time he normally arrived for work at 6 a.m., walking towards the building entrance when he was attacked by feet, fists, and a baseball bat. As to the disagreement centering on the issue of “arising out of”, the Board recognized that personally-motivated assaults are outside of course and scope, whereas “neutral” attacks and attacks arising from work-related interactions or activity are compensable.
A Delaware State Police detective testified that although there was insufficient evidence to support an arrest, Claimant’s attack by three unknown individuals was more likely than not arranged by his supervisor, based on a well-known and longstanding history of conflict at work, including “a particularly notable verbal confrontation about two weeks before the assault.” The assailants appeared to have “inside knowledge” of the Claimant’s work schedule, parking habits, and that the particular area of the parking lot utilized by Claimant did not offer a security camera. Co-workers corroborated their belief that the supervisor would have the means and the character (or lack thereof) to have been involved in such an episode.
The supervisor did not testify to offer rebuttal and there was no evidence to suggest that Claimant’s personal life outside of work would place him at risk for this kind of danger. Regardless of whether this supervisor was actually culpable in this assault, the Board held there was sufficient evidence that the employment placed Claimant at a greater risk and that the only credible evidence of a motive for such attack had its genesis in the workplace. The Employer appealed this ruling.
President Judge Jurden, in my opinion, has a better handle than most of her colleagues on the complexities and interplay of work comp issues. She handled workers’ comp during her tenure at Young Conway and this is familiar territory for her, more so than some of the others on the bench. In the attached decision of Alside Supply Ctr. v. Bottomely, C.A. No. N20A-07-002 JRJ (March 29, 2021), the IAB’s ruling is affirmed. With regard to the Board’s conclusion that the injuries in question “arose out of” the employment, the Court found that the Board had “two independently adequate reasons” supporting the outcome, the first being “credible evidence of work-related tension” that could have rendered Claimant a target, as well as employment conditions “which increased the likelihood of attack by unknown assailants as claimant arrived for work.”
Comparing the facts of this case to Rose v. Cadillac Fairview Shopping Ctr. Properties, 668 A.2d 782 (Del. Super. Ct. 1995) and Del. Transit Corp. v. Hamilton, 2001 WL 1448239 (Del. Super. Ct. Oct. 31, 2001), President Judge Jurden makes short work of explaining the distinctions between employment-motivated assaults, personal assaults, and neutral assaults. This discussion illuminates the propriety of the Board’s analysis, which comes down in favor of compensability, be this an employment-motivated or “neutral” assault.
Whether you celebrate Passover or Easter, we had hoped to provide you with something a little gentler for Holy Week . . .but Nick had something special for us — even if it did involve being beaten halfway to Hades with a baseball bat — and it’s hard to say no to those two precious little faces above, or to overlook the legal stylings of our President Judge. In any event, we hope this week brings you all the peace and joy of your respective holiday, along with a little extra insight as to workplace assaults. Nothing quite like comp to bring you closer to God!
Irreverently Yours,
Cassandra Roberts
