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Docket No. 96857-Agenda 7-March 2004.

SANDRA FRANKLIN, Appellee, v. THE INDUSTRIAL
COMMISSION (Carson Pirie Scott & Company, Appellant).

Opinion Filed May 20, 2004.

JUSTICE GARMAN delivered the opinion of the court:

Claimant Sandra Franklin sought compensation under the Workers'Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2000)), foran injury to her left arm suffered at work during a physical altercation withcoemployee Geniver Mohan on February 18, 2001. An arbitrator of theIndustrial Commission of Illinois (the Commission) found that the injury didnot arise out of claimant's employment and was therefore notcompensable. Claimant appealed to the Commission. The Commissionalso found that the injury did not arise out of claimant's employment, onthe ground that claimant was an aggressor in the fight that caused theinjury. Claimant appealed to the circuit court of Cook County, whichconfirmed the decision of the Commission. However, the IndustrialCommission Division of the appellate court reversed, holding that theCommission erred when it found that both claimant and Mohan wereaggressors. 341 Ill. App. 3d 128. The appellate court remanded the causeto the Commission to find which employee was the aggressor. 341 Ill.App. 3d at 136. We granted employer Carson Pirie Scott & Company'spetition for leave to appeal pursuant to Rule 315 (177 Ill. 2d R. 315). Wenow affirm the judgment of the appellate court.

BACKGROUND

Claimant was a cosmetic artist and counter manager in employer'sRiver Oaks store, in Calumet City. She was assigned primarily to sellElizabeth Arden cosmetics. Her assigned work area was a rectangularcounter, or "bay," with an opening at one end. Coemployee Mohanworked in a bay near claimant's, selling Fashion Fair cosmetics. OnFebruary 18, 2001, claimant's left arm was seriously injured during a fightbetween claimant and Mohan.

Claimant filed a petition for adjustment of claim, and her case washeard by an arbitrator. The arbitrator denied compensation on the groundthat the fight between claimant and Mohan was personal in nature or,alternatively, claimant was the aggressor. Claimant appealed to theCommission, which found that the fight was work related. However, theCommission denied compensation on the ground that claimant was anaggressor.

The evidence heard by the arbitrator and relied upon by theCommission was as follows. Both claimant and Mohan received part oftheir compensation in the form of commissions. According to employer'spolicy, cosmetics salespersons were to sell their assigned product linesonly, except that if a customer first purchased a product from anemployee's line, the employee could follow the customer to anothercounter and make further sales from other product lines to that customer.Also, employees were permitted to sell products from another employee'scounter if the other employee was busy with other customers. Claimanttestified that these rules applied to all cosmetics sales persons and thatboth she and Mohan were aware of the rules.

Claimant testified that she began having problems with Mohan inAugust of 2000 when Mohan made sales from claimant's counter inviolation of the rules, and claimant complained to management. Hercomplaint resulted in a meeting between claimant, Mohan, andmanagement. Claimant testified that after that meeting, she had four or fiveencounters with Mohan in which Mohan bumped claimant in a threateningway. Claimant testified she made written reports of three of theseencounters.

On February 18, 2001, at about 4 p.m. there were three or fourcustomers at claimant's counter. Claimant testified she told the customersthat she would take care of each in turn, and the customers agreed to waitfor her. Mohan approached one of the customers and asked to help her.Claimant testified that the customer told Mohan that she was going to waitfor claimant, and Mohan then became verbally abusive toward thecustomer. Claimant testified that she called for a manager. ManagerBarbara Gerrard arrived and spoke to the customer. Meanwhile, Mohanwas shouting threats at claimant and pointing her finger at claimant.Gerrard instructed Mohan to return to her bay. However, when Gerrardleft, Mohan exited her bay and approached claimant's bay, shouting atclaimant, pacing back and forth, and threatening claimant. Claimant feltfrightened, began crying, and left the sales floor. She returned about 20minutes later with aspirin and picked up a cup to get water.

Claimant testified that at this point Mohan again approachedclaimant's bay, shouting at her and threatening her. Claimant went toanother bay, called security, and was told to remain at her bay and thatsecurity would direct a video camera at claimant's bay. Claimant testifiedthat when she returned to her bay, Mohan was there, shouting andthreatening. Claimant told Mohan to "do what you do best." Claimanttestified that Mohan then approached with arms outstretched, grabbedclaimant by the left arm and hair, and pulled claimant towards her.Claimant testified that she responded by striking Mohan twice "as hard as[she] could" on the head with the cup claimant was still holding in her righthand. Another employee separated the two women. Claimant's left arm,which had previously undergone surgery to treat cancer, was seriouslyinjured.

The employer called Mohan as a witness but she refused to testify,citing her fifth amendment privilege against self-incrimination.

Courtney Harris sold Lancome cosmetics from the same bay asclaimant. Harris testified that immediately before the fight Mohanapproached their bay. Claimant told Mohan that she was not afraid of her.At the same time Mohan was telling claimant that claimant could not orderMohan around. Mohan then moved around a display table to the openingof claimant's bay. Claimant did not advance toward Mohan, but turned toface her. Harris testified that she did not see the fight itself.

Barbara Gerrard, who was store manager on duty on the day of thefight, testified concerning events prior to the fight. Ellyn Edwards, lossprevention manager for the employer, testified concerning written reportsthat claimant filed regarding earlier confrontations with Mohan. Thetestimony of Gerrard and Edwards contradicted claimant's testimonyabout the events leading to the fight on a number of points. For example,while claimant testified that in November of 2000 she made a writtenreport to a security agent named Haskell of an incident between her andMohan, Edwards testified that no such report was filed and that Haskelldid not work at the River Oaks store during November of 2000.

A videotape, recorded at the time of the fight by a store securitycamera, was entered into evidence. The Commission viewed the tape andfound that it showed Mohan approaching claimant with her arms folded.It then showed claimant striking Mohan twice with the cup. The camera'sview of claimant was partially obscured by a display rack. Claimanttestified on rebuttal that the tape did not depict everything that happenedduring the fight. The Commission found that in the videotape it appearsclaimant struck the first blow.

Both the arbitrator and the Commission found claimant was notcredible. The Commission cited a number of reasons, including conflictswithin claimant's testimony, conflicts between claimant's testimony andother witnesses, and conflicts between claimant's testimony and thevideotape. Finally, the Commission found parts of claimant's testimonywere implausible, such as her claim that she was initially an innocentbystander in a dispute between Mohan and a customer who preferred towait to be served by claimant. The Commission relied on the testimony ofHarris and on the videotape to find that claimant was an aggressor in thefight along with Mohan. On that basis the Commission deniedcompensation. The appellate court reversed and remanded, holding thatthe Commission erred when it denied compensation based on a findingthat claimant was an aggressor, as opposed to finding that either claimantor Mohan was the aggressor. 341 Ill. App. 3d at 136. The employer hasappealed from that judgment. Thus our review concerns whether theCommission erred in its application of the aggressor defense.

ANALYSIS

When the Commission reviews an arbitrator's decision, it exercisesoriginal and not appellate jurisdiction, regardless of whether it hearsadditional evidence. Paganelis v. Industrial Comm'n, 132 Ill. 2d 468,483 (1989). No reviewing court may overturn a decision of theCommission unless the decision is contrary to law or is based on factualdeterminations against the manifest weight of the evidence. Fitts v.Industrial Comm'n, 172 Ill. 2d 303, 307 (1996). Review of Commissiondecisions regarding questions of law is de novo. Butler ManufacturingCo. v. Industrial Comm'n, 85 Ill. 2d 213, 216 (1981).

An injury is compensable under the Act only if the claimant provesby a preponderance of the evidence that the injury both occurred in thecourse of and arose out of the employment. Sisbro, Inc. v. IndustrialComm'n, 207 Ill. 2d 193, 203 (2003). An injury arises out of theemployment if it results from a risk that originates in, or is incidental to, theemployment. Sisbro, 207 Ill. 2d at 203. When a fight at work arises outof a purely personal dispute, resulting injuries do not arise out of theemployment. Castaneda v. Industrial Comm'n, 97 Ill. 2d 338, 342(1983). On the other hand, fights arising out of disputes concerning theemployer's work are risks incidental to the employment, and resultinginjuries are compensable. Fischer v. Industrial Comm'n, 408 Ill. 115,119 (1951). However, injuries to the aggressor in such a fight are notcompensable. Container Corp. of America v. Industrial Comm'n, 401Ill. 129, 133 (1948). We refer to the rule that an aggressor's injuries arenot compensable as the "aggressor defense."

We first announced the aggressor defense in Triangle Auto Painting& Trimming Co. v. Industrial Comm'n, 346 Ill. 609 (1931). InTriangle Auto Painting, the claimant was injured in a fight at work overthe use of a paint spray gun. After reviewing precedents holding thatinjuries in fights arising out of work-related disputes are injuries arising outof the employment, we held the aggressor's injuries in such a fightnevertheless do not arise out of the employment. Triangle Auto Painting,346 Ill. at 618. We reasoned that the aggression negates all causalconnection between the work and the injury, so that the work is neither"the proximate nor a contributing cause of the injury." Triangle AutoPainting, 346 Ill. at 617. Instead, the cause of the injury is theaggressor's "own rashness." Triangle Auto Painting, 346 Ill. at 618.

Subsequent opinions have applied the rule of Triangle AutoPainting without repeating its reasoning. See, e.g., Ford Motor Co. v.Industrial Comm'n, 78 Ill. 2d 260 (1980). However, the aggressordefense continues to be based on the statutory requirement that injuriesare not compensable unless they arise out of the employment. See 820ILCS 305/2 (West 2000).

The appellate court suggested that it is time "to revisit the continuingvitality of the aggressor defense." 341 Ill. App. 3d at 135-36. As justnoted, Triangle Auto Painting reasoned that aggressive acts by theclaimant may break the causal connection between the employment andthe injury. This is not the only area of workers' compensation law wherethe claimant's acts may negate a causal connection between theemployment and the injury. See, e.g., Howell Tractor & Equipment Co.v. Industrial Comm'n, 78 Ill. 2d 567, 574-75 (1980) (holding claimant'sinjuries not compensable because, while it was reasonable and foreseeablethat a traveling employee would go to a bar with coworkers at 10 p.m.,it was not reasonable or foreseeable for him to attempt to return to hismotel by walking three miles at 2 a.m. through an unsavory section of anunfamiliar town). Cf. Union Starch, Division of Miles Laboratories,Inc. v. Industrial Comm'n, 56 Ill. 2d 272, 277-78 (1974) (holding thatthe Commission could find the injury compensable where it was notunreasonable or unexpected for employee to seek fresh air by steppingthrough window onto roof when going onto the roof for fresh air throughother windows was a long-standing practice in which employeracquiesced). Thus, the aggressor defense is part of Illinois workers'compensation law because of the need to determine whether an act offighting is causally connected to the employment.

The aggressor defense is not expressly provided in the Act. Rather,the aggressor defense is a rational construction of what the legislatureintended when it required that compensable injuries must arise out of theemployment. Triangle Auto Painting, 346 Ill. at 618 (concluding that "itis not within the intent of the act that an employee be protected against theconsequences of a fight in which he was the aggressor"). Since TriangleAuto Painting announced the aggressor defense more than 70 years ago,the legislature has not abolished it, which it could have done at any time.We therefore presume that the legislature acquiesces in our constructionof the legislative intent. People v. Drakeford, 139 Ill. 2d 206, 215(1990), quoting Miller v. Lockett, 98 Ill. 2d 478, 483 (1983).

In sum, because the Act still requires a causal connection betweenthe employment and the injury, the aggressor defense remains vital inIllinois.

As explained above, the aggressor defense applies only when theclaimant's conduct negates the causal connection between the employmentand the fight. The question of who made the first physical contact, whileimportant to determining whether that has occurred, is not decisive. FordMotor Co., 78 Ill. 2d at 263. Rather, a claimant's conduct must bejudged in light of the totality of the circumstances. Ford Motor Co., 78 Ill.2d at 263. The circumstances obviously include the conduct of the otherparticipant or participants in the fight. See Ford Motor Co., 78 Ill. 2d at263. Thus, whether a claimant's conduct rises to the level that triggers theaggressor defense depends in large part on the degree to which the otherparticipant in the dispute has provoked her. For example, to respond toa brief exchange of words over a minor workplace mishap by seeking outthe other employee a half an hour later and angrily threatening to cut histhroat triggers the defense. Container Corp. of America, 401 Ill. at 133.To respond to threatening and abusive behavior by reflexively pushing theother employee away does not trigger the defense. Ford Motor Co., 78Ill. 2d at 263-64. For a manager to attempt to evict a dischargedemployee who refuses to leave the premises by taking a guard's pistol andapproaching the employee with the pistol drawn and leveled does triggerthe defense. Riley v. Industrial Comm'n, 394 Ill. 126, 130 (1946).

Whether a claimant is an aggressor is a question of fact, and theCommission's finding must be upheld unless it is against the manifestweight of the evidence. Ford Motor Co., 78 Ill. 2d at 264. Nevertheless,if the Commission relies on a legally erroneous premise to find a fact, theresulting decision is contrary to law and must be reversed. See FreemanUnited Coal Mining Co. v. Industrial Comm'n, 188 Ill. 2d 243 (1999).In Freeman United the Commission found that the claimant failed toprove a causal connection between his injury and his employment becausethe claimant had not presented evidence of exposure to coal dust. Weheld that requiring the claimant to present evidence of exposure conflictedwith the statutory presumption that coal miners are exposed to coal dust,and we concluded that therefore the Commission's decision was contraryto law. Freeman United, 188 Ill. 2d at 245-46.

In this case, the Commission reasoned that,

"both [claimant's] and Mohan's continued course of aggressiveconduct *** and their failure to withdraw from the conflictallowed for an escalation of said conflict that ultimately resultedin the acts of physical violence exhibited by both employees.[Claimant] and Mohan were in fact equal participants in thealtercation marking them both as the aggressor. As such, theCommission finds [claimant] to be an aggressor in the altercationand therefore is not entitled to compensation under the Act."Franklin v. Carson Pirie Scott, Ill. Ind. Comm'n Rep.2002IIC0166 (March 5, 2002).

The Commission applied a standard whereby aggressive conduct leadingto a fight, combined with failure to avoid a fight by withdrawing from thedispute when possible, marks a claimant as an aggressor. Based on thatstandard the Commission found that both claimant and Mohan wereaggressors and only on that basis concluded that claimant was anaggressor not entitled to compensation.

In reversing the Commission, the appellate court held that only oneparticipant in a fight may be deemed an aggressor. 341 Ill. App. 3d at136. In dissent, one justice of the appellate court suggested that theCommission's finding that Mohan was an aggressor is irrelevant, and theCommission must be affirmed so long as its conclusion that claimant wasan aggressor is supported by the evidence. 341 Ill. App. 3d at 137(McCullough, P.J., dissenting). The Commission was not required todecide whether Mohan was an aggressor. The Commission had toconsider Mohan's conduct only as part of the circumstances against whichit judged claimant's conduct. However, for the following reasons, theappellate court correctly reversed the Commission without decidingwhether the Commission's finding was supported by the evidence.

The employer points out that we have never held that multipleaggressors are impossible as a matter of law. It is possible to imaginescenarios in which it would be appropriate to find multiple aggressors,particularly, as one of the two dissenting appellate court justicessuggested, where more than two employees are involved. See 341 Ill.App. 3d at 137 (McCullough, P.J., dissenting). However, it is not merelyan accident of grammar that prior cases have always spoken of theaggressor. A typical fight involving two employees has only one aggressor.When one employee escalates the dispute, he changes the circumstancesand typically makes it reasonable for the other employee to respond inkind. This is not to condone answering violence with violence. It is toacknowledge that a claimant's conduct must be judged in light of thecircumstances, and the circumstances include the conduct of others.

In this case, nothing in the record indicates anything other than atypical fight. Therefore the appellate court correctly held that theCommission erred when it denied compensation based on its finding thatboth claimant and Mohan were aggressors. The Commission must decidewhether claimant was the aggressor.

The parties point out that in many cases it is difficult to identify theaggressor. However, even though it is often a difficult task, it is also afamiliar one, both in law and in daily life. We do not agree with theemployer that the difficulty of identifying the aggressor is a reason toexpand the aggressor defense to allow the Commission to find that bothparticipants in a typical fight were aggressors.

When a decision of the Commission is set aside, but the facts foundby the Commission are sufficient to determine the correct decision, areviewing court may simply enter the correct decision. 820 ILCS305/19(f)(2) (West 2000). See, e.g., Butler Manufacturing, 85 Ill. 2dat 216. However, when it is not clear from the record what decision isrequired, the appropriate remedy is to remand to the Commission so thatit may decide in the first instance. Furlong Construction Co. v.Industrial Comm'n, 71 Ill. 2d 464, 470 (1978). Original jurisdiction isvested in the Commission, even though it is reviewing the decision of anarbitrator without hearing additional evidence. Paganelis, 132 Ill. 2d at483. In this case, it is not clear from the record whether, had it not erred,the Commission would have found that claimant was the aggressor.Therefore the appellate court correctly remanded the cause so theCommission could correctly apply the aggressor defense in the firstinstance.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the appellatecourt, which remanded the cause to the Commission for furtherproceedings.

Affirmed.