With the recent issue of gun control and violence making its way to the headlines, we, in fact, are confronted with the issue of violence in the workplace.

It can occur that an injury is caused by the act of a third person intending to injure an employee because of reasons personal to that third person and not directed against the employee because of employment issues. The Commonwealth Court, as we all know, has held that an injury must be “in the course of” the employment. Paper Products Company vs. WCAB (Kirin), 448 A2d 657 (Pa. Cmwlth. 1982). When an injury is caused by the act of a third person intending to injure an employee because of reasons personal to the third person and not directed against the employee because of the employment, such an injury is excluded from the course of employment by §301(c) (1) 77 P.S.§411(1). Personal Animus is an Affirmative Defense. Heath vs. W.C.A.B.(Personal Board of Probation and Parole), 860 A2d 25 (Pa. 2004).

Attorneys for Cipriani & Werner recently handled a matter involving workplace violence before Workers’ Compensation Judge Joseph Sebastianelli in Wilkes-Barre, Pennsylvania. In the matter Candy Rowe vs. Big Lots Stores, Ms. Rowe filed a Claim Petition whereby she alleged that she suffered a work injury on January 14, 2011, as a result of being physically attacked by the mother of a co-worker. The claimant sought full disability as of January 14, 2011.

The claimant testified at a hearing held before the judge that on January 14, 2011, she had walked from the parking lot through the store and into the back where the lockers were located. She further testified that she put her things away and as she turned to leave, Sue, a fellow co-worker and the assailant, said she wanted to tell her something. The claimant testified that Sue then grabbed her by the chest and said “you have anything to say from now on you say it to me, not to my daughter”. The claimant continued to testify that as she attempted to pull back, she jerked and came forward and was punched in the chest by Sue. On the day of the assault she was taken to the hospital by ambulance and alleged a chest and neck injury.

On behalf of the employer, attorneys for Cipriani & Werner raised the Personal Animus Defense. After reviewing the evidence, the judge found that any injuries that may have been sustained by the claimant on January 14, 2011, had nothing to do with her status as an employee of the employer. The judge carefully reviewed conversations between the claimant and the assailant, as well as the with assailant’s daughter. Judge Sebastianelli concluded that the burden of proof was sustained in proving that the claimant was not in the course and scope of her employment at the time of the assault, since the assault on the claimant was not directed to the claimant because of employment, but rather for reasons personal to the assailant. The Claim Petition was denied and dismissed. The matter is now on appeal before the Workers’ Compensation Appeal Board.

What It Means to You

The judge’s findings illustrate that when defending cases involving personal assault upon an employee, preparation for direct and cross examination of all witnesses must be carefully undertaken to establish Affirmative Defense.