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Greetings, by special request, this week’s Tip is on the Aggressor doctrine defense.
If you are looking for the words “aggressor doctrine” in the FL WC statute, you will not find it. Here is how it is actual phrased in the law:
440.09(3) Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician; or by the willful intention of the employee to injure or kill himself, herself, or another.
The aggressor is the one who initiates the first physical aggressive conduct. Verbal threats do not count, it is the first person to turn it into a physical altercation. Documentation is one of the keys to being successful in defending these claims. Be sure to get witness statements and clarify the first physical action. If there is a police report, track that down as well. Preserve any video if it exists. If it can be proven that claimant was the aggressor, you can deny the entire claim.
Additionally, sometimes the claim for the other individual in the fight may not be compensable as well. If the fight was entirely due to something unrelated to work, the combatants knew each other outside of work and the workplace was simply the place it spilled over, you could potentially deny their claim as well as it does not arise out of employment. A love triangle-based fight at work was found compensable however, because the individuals all met through work, and one stabbed the other with a knife used to peel shrimp at work.
If the 2nd person is fired for the fight, you could potentially deny TPD for misconduct.
As always, these situations are fact specific. Please feel free to reach out with any questions!
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Sincerely,
Morgan Indek | Managing Partner