McCARTHY, J.
The employee, a painter and rigger in the General Electric parts department, had been back to work for only four days following a six-month period out of work for treatment of non-work-related colitis when he was threatened and assaulted by a fellow employee at work. (Dec. 4, 5.) The incident occurred on September 20, 1990 when the co-worker confronted the employee in the company lunchroom, threatened to kill both the employee and his family, and threw a cup of water in his face. (Dec. 4, 5.) The employee worked for the rest of the day, but was out of work thereafter for an eight-month period for treatment of anxiety, depression, and a flareup of his pre-existing ulcerative colitis. (Dec. 4, 6-7.) After the employee was awarded § 34 benefits for the closed period from September 21, 1990 to December 1, 1990, plus medical benefits, both parties appealed for hearing de novo. The judge found the employee sustained a personal injury "arising out of and in the course of employment on September 20, 1990" when the employee "suffered from exacerbated ulcerative colitis due to the stress caused by the harassment at work." (Dec. 9.) Finding the employee's temporary total disability causally related to his employment, the judge awarded § 34 benefits from September 21, 1990 through May 12, 1991, the period during which the employee was out of work. (Dec. 10.)
The employee had returned to work from his six-month medical leave with instructions from his treating physician, Dr. Ades, that he "be restricted to a less stressful environment." (Dec. 6.)
The insurer now appeals from the decision on grounds that the September 20, 1990 incident occurred "in the course of" but did not "arise out of" the employment, and therefore the employee's injury is not compensable. The insurer contends that the incident merely occurred on the work premises, but arose out of a purely private relationship with no causal connection to the employment.
The judge found that the employee and the co-worker had driven to work together three or four times before the employee had taken the non-work-related medical leave, but had had no further contact with each other until the assault. (Dec. 5.) The judge found the employee's testimony credible, including his statements that other co-workers, including the assailant's brother, a foreman at the company, knew that "Bakas was crazy," and that the co-worker [Bakas] "initiated this confrontation on his own and it had nothing to do with some alleged version of a carpool incident." (Dec. 5.) No contrary evidence was offered by the insurer to dispute the employee's testimony that the co-worker attacked the employee first verbally and then physically in an unprovoked confrontation that began with the co-worker accusing him of failing to speak to him at work. (Tr. 34-35.) The judge believed the employee's version of events, and her credibility findings are final.
The insurer alleges that the fact that the two workers exchanged rides with each other several times made their relationship purely private, with any animosity arising therefrom unrelated to the employment. (Insurer Brief 6.)
Section 26 supports the judge's finding on the issue of compensability of his injury. That section states in pertinent part that
if an employee while acting in the course of his employment . . . is injured by reason of the physical activities of fellow employees in which he does not participate,
whether or not such activities are
associated with the employment, such injury shall be conclusively presumed to have arisen out of the employment. (Emphasis added.)
Under § 26, an employee acting in the course of his employment is covered by the Act when he is injured by a fellow employee's activities whether or not those activities are work related so long as he does not participate. Such is the case here. The conclusive presumption of § 26 renders the employee's injuries compensable.
The decision of the administrative judge is affirmed. Employee's counsel is awarded a fee in the amount of $1,000.00 pursuant to § 13A.
Judges Wilson and Fischel concur.