Thomas v. Sundowner, 94,157.
| Decision Date | 30 May 2000 |
| Docket Number | No. 94,157.,94,157. |
| Citation | 13 P.3d 92,2000 OK CIV APP 111 |
| Parties | Henry A. THOMAS, Petitioner, v. SUNDOWNER, Own Risk, and Workers' Compensation Court, Respondents |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
W.E. Sparks, W.E. Sparks and Associates, Tulsa, Oklahoma for Petitioner.
Vickie J. Buchanan, Tenal S. Cooley III, Looney, Nichols & Johnson, Oklahoma City, Oklahoma for Respondent.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.
¶ 1 Claimant Henry A. Thomas seeks review of the trial court's order that denied his claim. The trial court held that Claimant's injuries at work fell within "the exception to compensability [under] 85 O.S. § 11(4)."1 The trial court concluded "claimant was not a mere innocent victim to the altercation (fight) that ensued between himself and [a co-worker] which resulted in injuries." The trial court based this conclusion on a finding that "claimant had uttered extensive `fighting words' prior to the alleged incident (altercation)" which provided "provocation" for the co-worker to strike claimant. The essence of Claimant's position here on review is that mere words did not make him an aggressor nor constitute "willful or intentional behavior" contributing to his injury. He points out that all the witnesses agreed that he did nothing of a physical nature to cause the fight.
¶ 2 In reviewing this proposition, this court must show deference to the trial court's findings. We believe that the trial court's findings of "fighting words" and "provocation" indicate that the trial court accepted the co-worker's testimony (over Claimant's denial) that Claimant made a personal threat to the co-worker. The co-worker testified that he heard Claimant twice say something about knocking lead men in the head and that, the second time, Claimant mentioned leaving the lead men laying in a puddle of blood. The co-worker was a "lead man" but was not Claimant's supervisor. When the co-worker asked Claimant if he was talking about the co-worker, Claimant replied, At this point, the co-worker pushed Claimant and then hit him when he "bounced right back cussing and everything." When asked why he hit Claimant, the co-worker replied: "There's all kinds of short pieces of [metal] tubing everywhere in that shop and I figured that he might pick one up and hit me with it." When asked why he didn't walk away, the co-worker replied that he was afraid to turn his back on Claimant.
¶ 3 It is a well-settled rule of Oklahoma Workers' Compensation Law that a claimant cannot recover for injuries in a fight at work with a co-worker if claimant was the aggressor. Brister v. Barton and Rich Drilling Company, 1956 OK 134, ¶ 5, 297 P.2d 405, 406. "Aggressor" is defined in the criminal law of assault and battery to mean the "one who provokes the difficulty." Wilkie v. State, 33 Okla.Crim. 225, 242 P. 1057, 1059 (1926). This case further observes that "`[t]o provoke the difficulty' has been defined as willingly and knowingly using some language or doing some act after meeting the antagonist reasonably calculated to lead to the . . . conflict." Id. (citation omitted) (emphasis added). The court in Wilkie further explained that "it is not particularly important whether he begins the trouble by words or acts, if they are such as are `reasonably calculated' to lead to an affray." Id. This definition is recognized to prevent an aggressor from "taking advantage of his own wrongdoing, which the law does not permit." Id. (citations omitted).
¶ 4 This concept is completely compatible with the requirements of § 11(A)(4) that the claimant be an "innocent victim" and not have engaged in willful or intentional behavior to cause his injury. An employee who provokes a fight with a co-worker for whatever reason has engaged in willful or intentional behavior that is likely to cause an injury and is certainly not an "innocent victim" under § 11(A)(4).
¶ 5 "[W]here the question is raised as to who is the aggressor and the testimony is in conflict it is . . . a question of fact." Brister, 1956 OK 134 at ¶ 8, 297 P.2d at 406-07. An order denying an award to a claimant who is determined to be the aggressor...
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...however, no eyewitness or other testimony was presented in the present case that the injury was intentional. ¶ 13 In Thomas v. Sundowner, 2000 OK CIV APP 111, 13 P.3d 92, the claimant was injured in a fight with a co-worker. Direct evidence was produced, in the form of eyewitness testimony,......
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...however, no eyewitness or other testimony was presented in the present case that the injury was intentional. ¶13 In Thomas v. Sundowner, 2000 OK CIV APP 111, 13 P.3d 92, the claimant was injured in a fight with a co-worker. Direct evidence was produced, in the form of eyewitness testimony, ......