An injured worker may collect for injuries caused by a deliberate assault. NC workers' compensation benefits are payable if the assault arose out of the work environment. Although an assault is an intentional act, it may be considered an accident within the meaning of the workers’ compensation law when it is unexpected and without design on the part of the employee victim.
When a disagreement arises while at work and a worker is assaulted, it is usually held that such an assault grows out of the employment and is therefore payable. However, the danger which causes the assault must be peculiar to the work and not common to the neighborhood.
It must be incidental to the character of the business and not independent of the relation of worker and employee. The assault need not to have been foreseen or expected, but after the event, it must appear to have had its origin or risk connected with the employment and to have flowed from that source as a rational consequence.
Where the assault upon the employee grows out of a motive foreign to the employment relationship (not related to work), the necessary connection between the injury and the employment is not presented, and there will be no compensation awarded for the injury. When the cause of an assault upon an employee by a third person is personal, or when the circumstances surrounding the assault furnishes no basis for a reasonable inference that the nature of the employment created a risk of such an attack, the injury is not payable. This is true even if the employee was engaged in the performance of their duties at the time. Here are different workplace assault examples:
- The courts have held that the risk of murder by a jealous spouse is not an incident of employment. This is true even though there was a possibility that the employee’s spouse became jealous of an associate at work. The courts held that this is a hazard common to the neighborhood and is independent of the relationship of employer/employee, and is not a risk arising out of the employment.
- Where an employee was struck by a co-employee with a shovel after he had spoken words to him which he deemed insulting, and who then left the employment and returned and shot the other worker causing permanent injury, the court held that there was evidenced of “injury by accident arising out of and in the course of the employment,” and the claim therefore was payable.
- When a worker was shot in the eye by a hunter while working on his employer’s truck, the court held that the injury did not result from a cause peculiar to the employment in which the worker was engaged, and therefore it was not payable. On the other hand, in another case the court held that when an employee whose duty it was to collect accounts for his employer was struck and killed by a debtor of his employer the evidence was sufficient to support a finding that the death was a result of an accident arising out of and in the course of employment.
- Where a game warden was killed by a person against whom he had testified in a criminal action for violation of the game law, the court held that the injury did not arise out of and in the course of the employment for the State.
- Where a delivery man was driving a truck in the course of his employment, and while passing a group of boys playing baseball, a baseball struck his windshield and injured him, the court held that that injury resulted from an accident arising out of and in the course and scope of employment.
As can be seen from the examples set out above, the rulings of the court on the issue of whether an injury arose out of and in the course and scope of employment are somewhat inconsistent. It is doubtful whether all the cases cited above would be decided the same way were they heard today.
Because of the difficulty of predicting whether the courts will hold that accidents are payable in certain unusual fact situations, it is always important to retain an experienced NC workers’ compensation attorney to help resolve these matters.