dissenting:
I respectfully disagree.
The fact that one party made the first physical contact is not decisive in determining who was the aggressor and such a determination depends upon the totality of the circumstances. Ford Motor Co., 78 Ill. 2d at 263, 399 N.E.2d at 1282; Chicago Park District v. Industrial Comm’n, 263 Ill. App. 3d 835, 842, 635 N.E.2d 770, 775 (1994).
Here, the dispute between claimant and her coworker was work-related, and therefore, the injury from the altercation arose out of claimant’s employment. Schultheis v. Industrial Comm’n, 96 Ill. 2d 340, 345-46, 449 N.E.2d 1341, 1344 (1983); Graphic Group & KLW, Inc. v. Industrial Comm’n, 167 Ill. App. 3d 1041, 1043, 522 N.E.2d 128, 130 (1988). However, as stated in Ford Motor Co., the injuries of an aggressor are deemed not within the scope of employment because they are traceable to her own “voluntary acts.” Ford Motor Co., 78 Ill. 2d at 263, 399 N.E.2d at 1282. As a result, any person who voluntarily participates in physical combat in the workplace may be found to be an aggressor and denied benefits. A person who is attacked or threatened may have no choice but to defend herself and could arguably be found to not be an aggressor even though making the first physical contact in a defensive manner. See Chicago Park District, 263 Ill. App. 3d at 841-42, 635 N.E.2d at 775. On the other hand, a third employee who has not been involved in the argument, sees a fight, joins the fray, and is then injured, has voluntarily participated in the physical combat and could be denied benefits even though she did not initiate or instigate the combat.
Where both of the employees involved in the altercation are equally responsible for fomenting the dispute by mutually irritating each other, equally responsible for initiating the combat, and equally participated in the combat, the Commission could reasonably find that neither is entitled to benefits because the voluntary action of fighting took both employees out of the scope of their employment. The Commission’s determination that claimant and her coworker were both aggressors and equally at fault was not erroneous as a matter of law. In addition, it is irrelevant that the Commission found both employees were aggressors as long as the Commission’s finding that claimant was an aggressor is supported by the evidence.
A reviewing court will not disregard permissible inferences drawn by the Commission merely because different reasonable inferences may be drawn from the same set of facts. Martin v. Industrial Comm’n, 227 Ill. App. 3d 217, 219, 591 N.E.2d 108, 109 (1992). It is the province of the Commission to resolve any conflicts in the testimony and to choose between conflicting inferences. Dexheimer v. Industrial Comm’n, 202 Ill. App. 3d 437, 442, 559 N.E.2d 1034, 1037 (1990).
The Commission found that claimant’s testimony concerning her relationship with Mohan was uncorroborated and contained numerous inconsistencies, implausible explanations, and statements directly contradicted by the evidence. The Commission found that claimant “overtly engaged in prevarication” and was not worthy of belief. In particular, the Commission found claimant’s testimony about the initiation of the incident that precipitated the combat was lacking in credibility.
Gerrard testified that it was Mohan, not claimant, who called her to settle a dispute and that her conversations with a customer revealed complaints about the behavior of both employees. Harris testified that, after the initial encounter on February 18, 2001, claimant left the area in tears, but later returned and confronted Mohan in front of Mohan’s counter and invited Mohan to “do something.” The Commission also viewed the security video in very slow motion. As a result of that viewing, the Commission found that Mohan approached claimant’s counter with her arms folded and was pointing her finger as she came toward the counter opening and that claimant struck the first blow. The Commission also found that claimant initiated the dispute that led to the altercation by refusing to allow Mohan to make legitimate sales in accordance with company policy, she and Mohan both continued a course of aggressive conduct, and their failure to withdraw escalated the disagreement into physical violence. The Commission’s determination that claimant was an aggressor has support in the evidence and was not against the manifest weight of the evidence.
Finally, although the majority “notes that it is likely time for Illinois to revisit the continued vitality of the aggressor defense” (341 Ill. App. 3d at 136) we have by this decision made the revisit.
The order of the circuit court of Cook County confirming the Commission’s decision should be affirmed.