Nov 18

Crime Pays: How Prisoners Can Get Workers’ Comp

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Bad boys, whatcha gonna do when you hurt yourselves making license plates? In California, they apply for workers’ comp. Labor Code section 3370(a) provides: “Each inmate of a state…institution shall be entitled to the workers’ compensation benefits…for injury arising out of and in the course of assigned employment…”1 But an inmate better not drop the workers’ comp soap by purposely hurting himself or shanking another inmate. Labor Code Section 3370(a)(1) provides that an inmate may not seek workers’ comp for an injury resulting from: (1) an “assault” in which he was the “initial aggressor”; or (2) an “intentional act of the inmate injuring himself…”2

The “Initial Aggressor” Exception

Sometimes, the complexities of inmate workers’ comp law can make even the most hardened inmate want to bounce off the walls of a padded cell. The “initial aggressor” exception is one such complexity. Under Section 3370(a)(1), an inmate may not seek workers’ comp for an injury arising out of and in the course of his assignment employment if the injury resulted from an assault in which he was the “initial aggressor.” The problem is that the Legislature didn’t define “initial aggressor.” This lack of clarity can leave a model inmate on the horns of a dilemma: defend himself and risk indefinite detention in an isolation cell with no workers’ comp or become a passive victim of a jailhouse bully and get workers’ comp.

But a variant of that term “initial aggressor” exists in the general workers’ comp statute. Specifically, section 3600(a)(7) bars compensation to the “initial physical aggressor” in a workplace altercation.3 Courts have noted that the Legislature’s use of the word “physical” indicates that it was “primarily concerned with the increased risk of injury [that] arises when a quarrel moves from an exchange of hostile words and nonviolent gestures to a trading of physical blows.”4 Thus, a non-inmate employee is the “initial physical aggressor” if he first engages in “physical conduct” that one would reasonably perceive to be a “real, present and apparent threat of bodily harm.”

But the “initial aggressor” exception of Section 3370(a)(1) omits the word “physical.” Presumably, the Legislature intended to bar an aggressive inmate from receiving workers’ comp for an assault even if he confined his aggression to insults and other verbal “disrespect.” The rationale for the broader “initial aggressor” rule is that the “initial physical aggressor” rule would open the floodgates to inmate workers’ comp claims – the reason being that inmates often insult others and often overreact when others insult them. So unless an inmate reminds a workers’ comp judge of Nicholas Cage’s Christ-like character in Con Air, he probably shouldn’t count on getting workers’ comp for injuries resulting from an assault.

The “Self-Injury” Exception

Inmates often injure themselves even when they aren’t rioting. Consequently, Labor Code section 3370(a)(1) also bars workers’ comp for an injury resulting from “an intentional act of the inmate injuring himself.” The Court of Appeal doesn’t seem to have interpreted that language. The Court of Appeal has, however, interpreted the “self-injury” exception of Section 3600(a)(5), which makes a non-inmate’s “intentionally self-inflicted” injury non-compensable. Courts have held that Section 3660(a)(5) requires a “deliberate intent on the part of the worker to cause injury to himself…not a mere failure to realize the probable consequences of the action.”5

But just as the “initial aggressor” exception excludes more injuries than the “initial physical aggressor” exception does, the exception for an “intentional act of an inmate injuring himself” seems to exclude more injuries than the exception for an “intentionally self-inflicted injury” does. The reference to an “intentional act,” as opposed to an “intentionally self-inflicted injury,” suggests that the “intentional act of an inmate injuring himself” exception excludes all self-inflicted injuries, not just those where the inmate intends to hurt himself to get workers’ comp. Thus, an inmate who punches a wall out of anger at his sentence, without the intent to hurt himself, can’t get workers’ comp.

  1. Lab. Code §3370(a). 

  2. Lab. Code §3370(a)(1). 

  3. Lab. Code §3600(a)(7). 

  4. Matthews v. WCAB, 6 Cal.3d 719, 727 (1972). 

  5. County of Santa Cruz v. WCAB, 47 Cal.Comp.Cases 1136 (1982). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.