Kyorkian, Tiwart

Applicant, an auto painter, claimed industrial injury to his bilateral knees on January 30, 2019, after being pushed by a coworker during a workplace argument. The WCJ found the injury presumptively accepted under section 5402 but barred under section 3600(a)(7) on the theory that applicant was the initial physical aggressor. On reconsideration, the Board agreed the claim was presumptively accepted because defendant failed to produce evidence of a timely denial, and also found the injury industrial based on the QME's reporting. The Board held that defendant failed to meet its burden of proving applicant was the initial physical aggressor, as the only supporting testimony came from a witness who admitted he mostly heard rather than saw the altercation, and the nature of any touch by applicant was unclear. The Board rescinded the F&O and substituted findings of an industrial injury not barred by section 3600(a)(7), remanding for further proceedings.