In Wolfe v DuBorg House/Archdiocese of St. Louis, 93 S.W.3d 855, (E.D. 2003), even though claimant made the first contact with co-worker sticking her finger toward face of claimant, brushing co-worker’s hand away from claimant’s face, even though technically a battery, was not sufficient to establish that claimant was the aggressor. Injuries resulted from co-worker’s physical act, sticking finger toward face, an “unprovoked assault”
In Dimaggio v Johnston Audio/D&M Sound, 19 S.W.3d 185 (6/8/00). Claimant failed to prove assault arose out of employment when claimant worked part-time for stereo business, and altercation arose out of claimant’s own stereo business and not on premises.
In Robinson v U.S. Road & Rail, (LIRC Aug. 9, 1999), the claimant was on his lunch break going to pick up lunch for the rest of the crew, when he stopped to offer assistance to a man who was being beaten by two other men. As the claimant got out of his car, he was shot by another individual. The Commission held that the claimant’s injuries were out of and in the course of his employment as he was providing a mutual benefit to his employer. The deviation from the intended purpose being only for the comfort and convenience of the claimant. The Commission also stated that claimant was a victim of an assault not due to any personal motives so that the claimant’s injuries fell under the category of unprovoked or neutral assault cases.
In VanBlack v Trio Masonry, 986 S.W.2d 200 (Mo.App. W.D. 1998), a co-worker taunted a employee who approached co-worker and swung at him but missed. Co-worker then struck him. Compensation denied, based upon the “aggressor” defense, confirming concept that taunting and screaming are not enough to provoke an assault, but approaching an employee in a threatening manner (or taking a swing at him) is evidence of provocation, to allow denial.