Christopher Johnson a truck driver for Lexmar Distribution dba LDI Trucking Inc. is a driver for the defendant making runs from California to Arizona. On one of his trips he was stopped for an illegal U-turn by the Arizona State Police.

Video footage taken from inside the cab of the truck. showed Johnson arguing with the officers, refusing to identify himself, provide his driver’s license, registration or insurance cards. He was argumentative with the officers and refused to comply with any of their instructions or orders. He was forcibly removed from the cab of the semi-truck and pulled to the ground which caused him injury for which he filed this claim.

He was arrested and taken to jail on 1/3/21 for 5 misdemeanor infractions. He pled out on two of the five charges pending against him, Count 1 Ariz. Statute 28-622A a misdemeanor 2nd degree and Count 2, 281595B, Failure to Show Driver License or Identification Misdemeanor 2nd degree.

Following a trial and submission, the WCJ found that Johnson did in fact sustain an injury during this physical altercation with the Arizona Police. The WCJ then considered two affirmative defenses raised by the employer.

The WCJ did not find the initial aggressor defense under §3600(a)(7) as the applicant never made any overt moves or threatening gestures to the officers to warrant this finding.

However, the WCJ found and granted a Labor Code §3600(a)(8)1 defense based upon on the altercation that occurred and Johnson’s pleading guilty to two misdemeanor charges. Johnson’s Petition for Reconsideration of this finding was denied in the panel decision of Johnson v Lexmar Distribution dba LDI Trucking Inc .- ADJ14203968 (July, 2022).

On reconsideration, Johnson argues that Labor Code §3600(a)(8) requires that he be convicted of a felony, and that since he was convicted of misdemeanors, the defense does not bar his benefits.

This provision of the Labor Code provides that benefits are to be paid “(8) Where the injury is not caused by the commission of a felony, or a crime which is punishable as specified in subdivision (b) of Section 17 of the Penal Code , by the injured employee, for which he or she has been convicted.”

Penal Code, section 17(b), provides: “(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances . .”

The injury occurred during the commission of these crimes. Had Johnson cooperated with the officers he might have received a ticket or a warning, but do to his resistance and refusal to cooperate and exit his vehicle he was forcefully removed and taken to jail and charges with five misdemeanors.

The applicant pled guilty to two misdemeanors in Arizona, both of which were classified as misdemeanors carrying the potential of jail time and fines.

“Applicant fails to consider that he pled guilty to a crime that was punishable by a “fine or imprisonment in the county jail” as specified in Penal Code, section 17(b). Accordingly, section 3600(a)(8) applies and applicant’s rights to workers’ compensation is barred.”