Salazar, Hector, Applicant v. SOUTHWEST PATROL; ARCH INSURANCE GROUP administered by LWP CLAIMS SACRAMENTO, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
HECTOR SALAZAR, Applicant
vs.
SOUTHWEST PATROL;
ARCH INSURANCE GROUP administered by LWP CLAIMS SACRAMENTO,
Defendants
Adjudication Numbers: ADJ17912353 (MF); ADJ17823292
Pomona District Office
OPINION AND ORDER
DENYING PETITION FOR
RECONSIDERATION
Defendant seeks reconsideration of the Findings and Order (F&O) issued on August 26,
2025 by the workers’ compensation administrative law judge (WCJ) which found in relevant part
that in ADJ17912353, applicant claimed psychiatric injury and stress1 while employed by
defendant as a security guard from November 12, 2022 through June 12, 2023 so that defendant
did not meet its burden that applicant was employed less than six months; and that in
ADJ17823292, applicant sustained injury to his head and face and claimed injury to his neck, back
and hips while employed by defendant as a security guard on June 12, 2023, and that defendant
failed to prove by a preponderance of the evidence that applicant was the initial aggressor.
Defendant contends that applicant’s injury arose out of an altercation in which he was the
initial physical aggressor so that compensation is barred by Labor Code section 3600(a)(7); the
appropriate weight was not given to the security video; and it impeached the credibility of applicant
and witness, Fred Lorenzo.
We have not received an Answer from applicant. The WCJ filed a Report and
Recommendation on the Petition for Reconsideration (Report) recommending that we deny
reconsideration.
1 The parties are reminded that stress is not a body part; it is a cause of injury to a body part and can be the cause of a
physical injury or a psychiatric injury.

2
We have considered the allegations of the Petition for Reconsideration and the contents of
the Report. Based on our review of the record, and for the reasons stated in the WCJ’s Report,
which 	we 	adopt 	and 	incorporate, 	and 	for 	the 	reasons 	discussed 	below, 	we 	will 	deny
reconsideration.
DISCUSSION
I.
Preliminarily, we note that former Labor Code2 section 5909 provided that a petition for
reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days
from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to
state in relevant part that:
(a) 	A petition for reconsideration is deemed to have been denied by the appeals
board unless it is acted upon within 60 days from the date a trial judge transmits
a case to the appeals board.
(b)
(1) 	When a trial judge transmits a case to the appeals board,
the trial judge shall provide notice to the parties of the case and the
appeals board.
(2) 	For purposes of paragraph (1), service of the accompanying
report, pursuant to subdivision (b) of Section 5900, shall constitute
providing notice.
Under section 5909(a), the Appeals Board must act on a petition for reconsideration within
60 days of transmission of the case to the Appeals Board. Transmission is reflected in Events in
the Electronic Adjudication Management System (EAMS). Specifically, in Case Events, under
Event Description is the phrase “Sent to Recon” and under Additional Information is the phrase
“The case is sent to the Recon board.”
Here, according to Events, the case was transmitted to the Appeals Board on September
26, 2025 and 60 days from the date of transmission is November 25, 2025. This decision was
issued by or on November 25, 2025, so that we have timely acted on the petition as required by
section 5909(a).
2 All further references are to the Labor Code unless otherwise stated.

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Section 5909(b)(1) requires that the parties and the Appeals Board be provided with notice
of transmission of the case. Transmission of the case to the Appeals Board in EAMS provides
notice to the Appeals Board. Thus, the requirement in subdivision (1) ensures that the parties are
notified of the accurate date for the commencement of the 60-day period for the Appeals Board to
act on a petition. Section 5909(b)(2) provides that service of the Report and Recommendation shall
be notice of transmission.
Here, according to the proof of service for the Report and Recommendation by the WCJ,
the Report was served on September 26, 2025, and the case was transmitted to the Appeals Board
on September 26, 2025. Service of the Report and transmission of the case to the Appeals Board
occurred on the same day. Thus, we conclude that the parties were provided with the notice of
transmission required by section 5909(b)(1) because service of the Report in compliance with
section 5909(b)(2) provided them with actual notice as to the commencement of the 60-day period
on September 26, 2025.
II.
In addition to the analysis set forth in the WCJ’s Report, we observe the following.
At trial, the WCJ reviewed the admitted June 12, 2023 security camera footage of the
altercation between applicant and his co-worker, John Gonzalez, in the presence of the parties, and
then she entered the following summary of its contents in the record:
We are looking at a video that appears to show a lobby with a set of doors leading
out to a small vestibule with another set of doors that leads to the outside. It is
date-stamped June 12, 2023, at 9:44 P.M. I see a gentleman walking out to the
vestibule area and out to the outside. There appears to be someone sitting
outside, and he has walked out of frame. There is someone at the front desk, a
woman at the front desk.
The gentleman who had walked outside walks back towards the door and walks
in the door and is now holding it open and appears to be talking to someone.
Another person comes up and starts punching him. There is a third person in the
video, a woman with white hair, who comes up and tells the front desk to call
somebody and then runs outside and appears to be tending to somebody. The
woman at the front desk is called. Another woman runs out to the front as well,
and then a gentleman and two more persons, another person all run out to the
front. The gentleman who had gone out first has come back in. It appears another
person has come into frame. It appears to be a nurse. Several more people go
outside. The gentleman comes back with his helmet and his jacket.
(08/06/2025 Minutes of Hearing and Summary of Evidence, at p. 3:6-17.)

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In her Report, the WCJ further explained what she discerned in the June 12, 2023 security
camera footage of the altercation to explain why she assigned it the weight that she did:
While there is video of the altercation, it is silent. The view is from a security
camera in the lobby, pointed somewhat downward, looking through the lobby
glass doors, into an entry way, through a second set of glass doors, and into the
darkness outside. The view provides limited view of Mr. Gonzalez, as he is at
the second set of glass doors leading from the entryway to the outside. For the
most part, except when he turned away from the doors, started to walk to the
lobby and then turned back, all we can see of him is his back. The video is not
clear enough to show us whether Mr. Gonzalez did, or did not, have anything in
his hands. Almost nothing can be actually seen of the fight although it does
appear that applicant threw a punch first…as he testified.
(Report, at p. 4.)
In essence, defendant contends that its interpretation of the security camera footage is fact,
that it impeached the testimony of applicant and witness, Fred Lorenzo, and otherwise proved that
applicant was the initial aggressor in the June 12, 2023 altercation.
It is well established law that the weight accorded to the evidence is a matter to be
determined by the WCJ and the WCJ’s credibility determinations are given great weight because
the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen’s
Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317-319 [35 Cal.Comp.Cases 500].
Until reconsideration, it does not appear that defendant objected to the WCJ’s August 6,
2025 summary of what she saw on the security camera footage. The WCJ’s determinations about
the June 12, 2023 altercation are consistent with both the security camera footage as described by
the WCJ and credible testimony. In particular, the WCJ could not see Mr. Gonzalez’ left hand in
the security camera footage, but applicant’s credible testimony about the same was clear.
(06/17/2025 Minutes of Hearing and Summary of Evidence, at p. 7:7-24.) As explained in the
WCJ’s Report, neither of the defendant’s witnesses, George Tabullo nor Marilein Martinez,
witnessed the altercation on June 12, 2023 and could therefore offer no firsthand witness testimony
about it. Mr. Gonzalez, who was involved in the altercation, did not offer testimony.
Defendant incorrectly asserts that the security camera footage was relied upon by the
Covina Police Department as their evidence to determine that applicant was the “initial aggressor”
and implies the WCJ is somehow bound by this conclusion and/or the WCJ should assign it great
weight. (Petition for Reconsideration, at p. 4.) The investigating detective, who was not on the

5
scene on June 12, 2023 to interview any witness, concluded that the incident between applicant
and Mr. Gonzalez was a “mutual combat physical altercation” when he reviewed the silent security
camera footage. (Exhibit F, at p. 6.) The detective concluded applicant was the “primary
aggressor.” (Id.) However, as the security camera footage was not clear to the WCJ, it could not
have been clear to the detective either. We observe that while defendant appears to rely on this
characterization by the detective, defendant failed to call the detective to testify. In any event, the
WCJ is not bound by the conclusions of the detective. Similarly, defendant failed to call Mr.
Gonzalez or any other witness to the incident to testify in support of its burden. Hence, based on
this evidence, the WCJ assigned more weight to the credible, firsthand witness testimony than to
the limited security camera footage available.
We have given the WCJ’s credibility determination great weight because the WCJ had the
opportunity to observe the demeanor of the witnesses. (Garza, supra.) Furthermore, we conclude
there is no evidence of considerable substantiality that would warrant rejecting the WCJ’s
credibility determination. (Id.)

6
For the foregoing reasons,
IT IS ORDERED that the Petition for Reconsideration is DENIED.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ KATHERINE WILLIAMS DODD, COMMISSIONER
I CONCUR,
/s/ KATHERINE A. ZALEWSKI, CHAIR
/s/ JOSÉ H. RAZO, COMMISSIONER
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
November 25, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
HECTOR SALAZAR
SOLIMON RODGERS
FAMIGLLIETTI & VOLPE
SL/abs
I certify that I affixed the official seal of the Workers’
Compensation Appeals Board to this original decision
on this date. 	abs

7
REPORT AND RECOMMENDATION
ON PETITION FOR RECONSIDERATION
ADJ17912353: HECTOR SALAZAR born on [], while employed during the period
November 12, 2022 through June 12, 2023 as a SECURITY GUARD at Covina, California, by
SOUTHWEST 	PATROL, 	whose 	workers’ 	compensation 	insurance 	carrier 	was 	ARCH
INSURANCE GROUP administered by LWP CLAIMS SOLUTIONS, INC., claims to have
sustained injury arising out of and occurring in the course of employment to stress & psyche.
ADJ17823292: HECTOR SALAZAR born on [], while employed on June 12, 2023 as a
SECURITY GUARD at Covina, California, by SOUTHWEST PATROL, whose workers’
compensation insurance carrier was ARCH INSURANCE GROUP administered by LWP
CLAIMS SOLUTIONS, INC., sustained injury arising out of and occurring in the course of
employment to his head and face and claims to have sustained injury arising out of and occurring
in the course of employment to his neck, back and hips.
Defendant has filed a timely Petition for Reconsideration, objecting to said decision(s) in
the following particular(s):
1. 	Petitioner contends that the undersigned erred insofar as the evidence does not justify the
finding of fact.
2. 	Petitioner further contends that the undersigned erred insofar as the finding of fact do not
support the Findings and Order.
FACTS ON DISPUTED ISSUES
This matter came on for trial on the limited issues of:
ADJ17912353: AOE/COE, nature and extent and the affirmative defense of the six-month
rule under California Labor Code §3208.3(d), barring compensation for psychiatric injuries where
the applicant was employed with defendant for a period less than six months.
ADJ17823292: AOE/COE, nature and extent and the affirmative defense of initial
aggressor.
Applicant, Hector Salazar, testified on his own behalf and described a history of
intimidation and bullying by John Gonzalez, culminating in an altercation on June 12, 2023. Fred
Lorenzo, applicant’s co-worker who was present at the time of the altercation, testified on his
behalf and substantially supported applicant’s testimony.
Defendant did not bring in John Gonzalez, the other participant in the altercation to testify.
The defendant did provide two witnesses. The first, George Tabullo, plant manager for the
hospital where the altercation took place, authenticated the video of the incident, but was not
present at the time of the altercation. Defendant also called Marilein Martinez, office manager of
Southwest Patrol, who testified that applicant was hired on November 12, 2022, and was still
employed as of June 12, 2023.

8
Defendant produced a video, which the court watched and narrated into the record as
Exhibit B. Defendant also offered a police report of the incident, Exhibit F, as well as incident
reports regarding the altercation. Exhibit D.
Pursuant to the testimony of Marilein Martinez, applicant was employed by Southwest
patrol from November 12, 2022 through, at least June 12, 2023. MOH/SOA 8/6/2025 pg. 4, ln. 20-
25. Exhibit C shows that his first paycheck was issued November 20, 2022 and his last one was
issued July 16, 2023, but there is no indication of which days applicant did or did not work during
that period. There were nine days between the 12th and 20th of November, and applicant was paid
for 32 hours of work, (Exhibit C, pg.2) thus the court makes a reasonable assumption that he started
working the day of, or shortly after being hired and continued through the 16th of July 2023, – a
period in excess of seven months.
There was a history of harassment and bullying by John Gonzalez toward the applicant.
Applicant testified that in May of 2023 there was an incident in which Mr. Gonzalez, “got into his
face,” and asked him if he wanted to fight, called him names and stated that “he would fuck him
[applicant] up.” MOH/SOA 6/17/2025 pg. 6, ln. 7-10. As he was leaving, Mr. Gonzalez turned
and yelled insults at the applicant sufficient that the receptionist asked what caused the issue.
MOH/SOA 6/17/2025 pg. 6, ln. 13-15. He indicated that he made out an incident report and therein
informed his supervisors that he felt physically and verbally threatened by Mr. Gonzalez.
MOH/SOA 6/17/2025 pg. 6 ln. 17-20, pg. 10, ln. 3-12, Exhibit E. He was losing sleep because of
the stress Mr. Gonzalez caused him. MOH/SOA 6/17/2025, pg. 6 ln 25.
Prior to the May incident, Mr. Gonzalez had been acting with hostility toward the applicant
for at least two months. MOH/SOA 6/17/2025 pg. 6, ln 22-23.
In June of 2023, the fight occurred.
Mr. Gonzalez started by insulting applicant and Mr. Lorenzo, another security guard, while
they were sitting outside the lobby entrance. MOH/SOA 6/17/2025 pg. 7, ln 6-9. He called them
“Old F’s,” and “bitches,” and complaining that “you old motherfuckers can’t do your fucking
jobs.” MOH/SOA 6/17/2025 p. 7, ln 6-9, pg. 12, ln. 18-19. While doing so he was holding his keys
in his left hand and his radio in his right. MOH/SOA 6/17/2025 pg. 7, ln 6-9. When they ignored
him, Mr. Gonzalez insulted them again, turned and walked into the lobby. MOH/SOA 6/17/2025
pg. 7, ln. 9-11. This physical action is corroborated by the video. Exhibit B. Applicant testified
that Mr. Gonzalez then turned back, came toward them and hurled more insults. MOH/SOA
6/17/2025, pg. 7 ln 9-11. Again, this physical action is corroborated by the video. Exhibit B. Mr.
Lorenzo indicated that, at that time, Mr. Gonzalez told applicant he was going to “fuck Salazar
up.” MOH/SOA 6/17/2025 pg. 12, ln. 19-20.
Applicant then testified that he walked toward the lobby entrance to leave and Mr.
Gonzalez told him, “I’m going to fuck you up,” more than once. MOH/SOA 6/17/2025, pg. 7, ln.
11-13. Applicant saw that Mr. Gonzalez had his keys laced through the fingers of his left hand,
protruding between the knuckles. MOH/SOA 6/17/2025, pg. 7, ln. 13-14. This was confirmed by
Mr. Lorenzo. MOH/SOA 6/17/2025, pg. 12, ln. 20-12. Mr. Gonzalez raised his left hand as though
he was going to strike the applicant. MOH/SOA 6/17/2025, pg. 7, ln. 15-16. Applicant admits he
threw a punch, MOH/SOA 6/17/2025, pg. 7, ln 16, but he did not recall if he or Mr. Gonzalez
punched first. MOH/SOA 6/17/2025, pg. 7, ln. 7-11. Mr. Lorenzo believed that Mr. Gonzalez
through the first punch. MOH/SOA 6/17/2025, pg. 12, ln. 21-22.

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Applicant felt physically threatened. MOH/SOA 6/17/2025, pg. 7, ln. 15. Mr. Gonzalez
was standing between the applicant and where he had to be – inside the lobby. MOH/SOA
6/17/2025 pg.7, ln. 17-18. He believed that Mr. Gonzalez was ready to fight him and was going to
take a swing at him. MOH/SOA 6/17/2025 pg. 7, ln. 18-19.
While there is video of the altercation, it is silent. The view is from a security camera in
the lobby, pointed somewhat downward, looking through the lobby glass doors, into an entry way,
through a second set of glass doors, and into the darkness outside. The view provides limited view
of Mr. Gonzalez, as he is at the second set of glass doors leading from the entryway to the outside.
For the most part, except when he turned away from the doors, started to walk to the lobby and
then turned back, all we can see of him is his back. The video is not clear enough to show us
whether Mr. Gonzalez did, or did not, have anything in his hands. Almost nothing can be actually
seen of the fight although it does appear that applicant threw a punch first…as he testified.
The court gave “weight” to the video, it just did not find it to be as compelling evidence as
defendant does.
Applicant was struck several times in the face. His wounds were lacerations. MOH/SOA
6/17/2025, ln. 23-25. The court made a reasonable inference that the lacerations were caused by
the keys in Mr. Gonzalez’s hand, as just a punch wouldn’t cut. He testified that Mr. Gonzalez hit
him so hard that one of the keys bent. MOH/SOA 6/17/2025, pg. 8, ln.18-19.
The Covina Police Department was called and Mr. Gonzalez was taken from the scene.
MOH/SOA 6/17/2025, pg. 8, ln 23-25. The contemporaneous detailing of police report tends to
support the version of events detailed by applicant and Mr. Lorenzo. Exhibit F.
There is some issue with Mr. Lorenzo’s testimony conflicting with his deposition and
initial written report. When asked the question “why,” he indicated this was due to his fear of being
fired as he was still working for Southwest and that he was pressured to change what he said
initially. MOH/SOA 6/17/2025, pg. 13, ln 21-25. The defense did not bring forth any witness to
rebut that assertion. Further, the police report supports Mr. Lorenzo’s testimony at trial. Exhibit F.
His handwritten incident report corroborates Applicant and Mr. Lorenzo’s testimony at trial that
Mr. Gonzalez was yelling threats at them and had his keys in his left hand. Exhibit D.
Mr. Gonzalez’s report of the indecent is notably short and does not discuss his own
behavior prior to the fight. Exhibit D. Mr. Gonzalez was not brought to testify.
Defendant called George Tabullo, Director of plant operations for Aurora Charter Oak
Hospital. As the custodian of record, he detailed the chain of custody of the security video (Exhibit
B) and testified to its authenticity. MOH/SOE 8/6/25 pg. 2, ln. 10 to pg. 3, ln. 23. He did not
witness the altercation. MOH/SOE 8/6/25, pg. 2, ln. 20-21. Defendant also called Marilein
Martinez, office manager and human resources for Southwest Patrol. She verified applicant’s
employment, but had no knowledge of whether applicant was working on the day of the altercation.
MOH/SOE 8/6/25, pg. 4, ln. 19-25.
DISCUSSION
First, regarding case ADJ17912353, the court found that the six-month rule regarding
psychiatric injury did not apply. The court also found that, because of the applicant’s testimony of
ongoing harassment for almost the entire time applicant worked with John Gonzales, (see
discussion supra) that this was not a specific injury as pled, but rather a continuous trauma. The
court amended the pleadings to conform to the proof at trial under CCR §10517.

10
Because applicant worked for defendant, Southwest Patrol, for at least seven months, the
affirmative defense under Labor Code §3208.3(d) failed. However, the court could not determine,
based on the evidence before it, whether applicant had a compensable psychiatric injury and further
development of the record was necessary.
To address each of defendant’s contentions in their petition:
The Court weighed the video and found it lacking
As stated previously, the court gave weight to the video, but it did not find it to support
defendant’s contentions about who started the fight. The best that can be proven by it was a) there
was a fight, and b) it happened at the hospital just outside the front lobby. The court found that the
applicant’s testimony, backed up by testimony, incident reports and contemporaneous statements
taken by the police at the scene was more persuasive than a grainy video located two rooms away
from the actual fight. Carter v. County of Los Angeles 2013 Cal.Wrk.Comp P.D. 414.
The applicant was not the initial physical aggressor
What is consistent throughout the witness testimony and contemporaneous statements
made in the reports, and those taken down by the police immediately after the altercation, is that
Gonzalez was threatening applicant and had his car keys laced through his fingers.
“A car key is not an inherently deadly or dangerous weapon, but if wielded as a makeshift
weapon with sufficient force at close range […], a key is capable of puncturing skin and causing
serious bodily injury.” People v. Koback (2018) 25 Cal.App.5th 323, 326 [remanded and modified
on other grounds People v. Koback (2019) 36 Cal. App. 5th 912]. An initial aggressor is the one
by physical conduct who first places his opponent in reasonable fear of bodily harm, the mere act
of clenching a fist or raising a weapon can be sufficient to convey a real, present and apparent
threat of physical injury. Mathews. WCAB (1972) 6 Cal.3d 719, 727. In the Mathews case, the
applicant was found to be the initial aggressor because he advanced on the other party with a closed
fist. Mathews, supra. In Pirrie v. WCAB (1990) 55 Cal. Comp. Cases 400 (writ denied), the board
held that a waitress holding up pitchers and threatened a cook with them while taunting him, was
the initial aggressor. The Board has opined in other cases that "[it] is not necessary that there be a
battery before one can be deemed a physical aggressor" (Rosenthal v. Wong (1964) 30 Cal. Comp.
Cases 103, 104, emphasis added); "'bodily contact . . . is not the significant factor," ( Briglia v.
Industrial Accident Commission, supra, 27 Cal. Comp. Cases 217, 218.) in deciding who was the
initial aggressor.
Whether the injured employee is the initial physical aggressor is a question of fact for the
appeals board, and the burden of proof rests on the employer who must show that the applicant
was the one who first engaged in physical conduct that a reasonable person would perceive as a
threat. Los Angeles County Metropolitan Transit Authority v. WCAB (Hicks) 2006 71 Cal. Comp.
Cases 641, [644] (writ denied). Thus the keys protruding through Mr. Gonzalez’s fingers combined
with the threats to “fuck you up,” directed at the applicant would be a real, present and apparent
threat of physical injury. That made Mr. Gonzalez the initial aggressor, and applicant was allowed
to defend himself from the perceived threat.

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The defense attorney did not successfully impeach either applicant or Mr. Lorenzo
The court acknowledges that there are some inconsistencies with exactly what was said in
the depositions of both applicant and Mr. Lorenzo, and the testimony of trial. However, there are
not so inconsistent as to completely wreck either man’s credibility. What they testified to at trial
is generally what they testified to at their depositions, and is generally what they wrote in their
reports, and is generally what they told the police at the time of the incident. When defense attorney
asked “why,” Mr. Lorenzo had changed his report and was not as forthcoming in his deposition,
he rationally explained it as he was afraid of losing his job at Southwest as he was still employed.
Given that his initial, handwritten report was admitted into evidence and his statement to police
was admitted into evidence and both of those back up his trial testimony the defendant failed to
score the points they think they did.
Development of the record is warranted
Applicant and Mr. Lorenzo testified that applicant’s face was slashed by the keys wielded
by Mr. Gonzalez. The police report details the lacerations to the applicant’s face. Applicant
testified that he has nerve and scarring issues because of same. MOH/SOE 6/17/2025, pg.8, ln. 17-
19. Based on the testimony and other evidence, it is apparent that applicant suffered an injury to
his face/head on June 12, 2023. Whether that injury was merely superficial or has caused deeper
nerve damage will require medical reporting. To date, as these are denied claims, the current
medical reporting is all outside the MPN. The court will require reporting by either an MPN
physician or a Qualified Medical examiner for that to be determined. This is also true for
applicant’s other claimed injuries resulting from the fight which applicant testified to. Thus, the
nature and extent of applicant’s injuries, on both cases, requires development.
CONCLUSION
For all the forgoing reasons, defendant’s Petition for Reconsideration should be denied.
DATE: September 26, 2025
Amy Britt
WORKERS’ COMPENSATION JUDGE