Oct 16

Who’s on First? The “Initial Physical Aggressor” Rule and the ’88 Elizabethton Twins “Basebrawl”

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Abbott and Costello doing their famous "Who's on first?" routine.For a baseball player, 90% of the game of getting workers’ compensation in California is “half mental.” That’s particularly true for a pitcher who suffers an injury when a batter charges the mound. Generally, an injury that results from a workplace altercation, whether between co-employees, an employee and his supervisor, or an employee and a third party, is compensable, so long as the injured employee wasn’t the “initial physical aggressor”1 – i.e., the one who first engaged in physical conduct that a reasonable man would have perceived to be a “real, present and apparent threat of bodily harm.”2 In other words, the task of a workers’ compensation judge (WCJ) is to ask, “Who’s on first?”

Perez Puts Martin on the Disabled List

When a batter charges the mound, the question “Who’s on first?” is no comedy routine. But what if the pitcher charges the batter in a hotel room? In Minnesota Twins Baseball Club v. WCAB, 61 Cal.Comp.Cases 1489 (1996), the Minnesota Twins and Christopher Martin, a first baseman for the team’s Elizabethton, Tennessee farm club, tangled over the answer to that curve ball. Evidently not tired after a 1988 14-inning game, Martin threw a wild pitch of sorts on the team bus, striking Twins pitcher Alex Perez in the head. Enraged, Perez challenged Martin to meet him at Perez’s hotel room. Martin accepted the challenge and headed to Perez’s room. Evidently, Perez didn’t believe in the “designated hitter” rule, and when Martin knocked, Perez greeted him with a bat, promptly placing him on the disabled list.

Martin later sought workers’ compensation for elbow injuries resulting from the hotel room “basebrawl.” But the Twins stayed true to the old wisdom that there’s no crying in baseball. The team argued that Martin’s injury was non-compensable because he “started it.” Manager Ray Smith testified that he saw Martin with taped knuckles, “just like a boxer before a fight,” before Martin headed to Perez’s room. Martin disputed Smith’s version of the events, testifying that he had taped his wrists, not his knuckles, and only because of a “prior injury.” Martin further testified that he went to Perez’s room to “talk things over.” The WCJ concluded that Perez was the initial physical aggressor, and even if Martin had gone to his room to fight, he never struck a blow.

Extra Innings: Martin Gets Workers’ Comp – Seven Years Later

The Twins called in a relief pitcher, the Workers’ Compensation Appeals Board (WCAB), and petitioned for reconsideration, arguing that the WCJ should have accepted Smith’s side of the story. The WCAB agreed and concluded that the WCJ made “too many wrong mistakes.” The WCAB explained that the WCJ didn’t consider a written report from Smith in which he opined that Martin had started the fight. The WCAB remanded the case to the WCJ, but on remand, it was “deja vu all over again,” as the WCJ reached the same conclusion: Perez was the initial physical aggressor. The WCJ elaborated: Smith didn’t witness the incident, his report was hearsay, and his conclusion that Martin started the fight was at odds with Martin’s sworn testimony.

Martin left the Elizabethon Twins, and in 1989, went to the Reno Silver Sox, a then-unaffiliated Class-A Advanced team in the California League. Sadly, he batted .000 after only four games. He appears to have retired from baseball at the end of the 1989 season at the age of 21. The facts surrounding his retirement from minor league baseball aren’t clear from the public record, but Perez evidently swung for the fences when he batted against Martin in the hotel room. Fortunately for Martin, he finally made the Twins compensate him for the apparently career-ending injuries that Perez inflicted, though it took seven years for him to get the Twins to turn on the benefits. Like a wise man once said, it ain’t over ‘til it’s over.


  1. Lab. Code §3600(a)(7). 

  2. Mathews v. WCAB, 37 Cal. Comp. Cases 124 (1972). 

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.