INDUSTRIAL COMMISSION DIVISION

JUSTICE CALLUM delivered the opinion of the court:

Claimant, Sandra Franklin, filed an application for adjustmentof claim under the Workers' Compensation Act (Act) (820 ILCS 305/1et seq. (West 2000)) for injuries to her left arm. The arbitratorfound that claimant's injuries did not arise out of and in thecourse of her employment with Carson Pirie Scott (employer). Thearbitrator concluded that claimant's injuries arose out of a fightbetween herself and a co-worker, that the altercation was of apersonal nature, and that claimant was the aggressor. TheCommission denied compensation, finding that the altercation wasnot of a personal nature, but that both claimant and her co-workerwere aggressors. The circuit court confirmed the Commission'sdecision. Claimant appeals. We reverse and remand.

I. BACKGROUND

Claimant began working for employer at its River Oaks store inCalumet City as a cosmetic artist and counter manager for theElizabeth Arden cosmetic line in early 2000. Claimant's co-worker,Geniver Mohan, sold a different cosmetic line from a bay directlyacross from claimant's bay.

Employer's sales policy provided that, if a customer purchasedcosmetics at an employee's sales counter, the employee waspermitted to go to a different sales counter to sell anothercosmetic line's products. However, if a customer did not purchasecosmetics at the employee's counter, then the employee could notfollow the customer to a different counter to sell a differentproduct line. The foregoing rules applied to all cosmetics salesstaff, and claimant testified that she and Mohan were aware of therules.

Claimant further testified that she knew Mohan "vaguely"before claimant started working for employer. She also testifiedthat she did not know Mohan before she started working at employer,but would occasionally purchase cosmetics from her. Claimantfurther testified that both her and Mohan's salaries were based inpart on commissions from cosmetics sales.

Claimant stated that she began experiencing problems withMohan in August 2000, when Mohan sold products from claimant'scounter area. Claimant told her manager, Annette Simmons, aboutthe incidents and filed a complaint. Simmons called a meeting. Claimant complained that Mohan did not have sales at her counter topermit her to sell at claimant's counter. Claimant testified thatMohan stated that she had heard complaints about claimant stealingsales.

About four or five days later, claimant testified that she andMohan were walking past each other and that Mohan hit claimant withher shoulder and dared claimant to push her or to put her hands onher. Claimant testified that she extended her hands to push Mohanaway. Claimant further testified that Mohan did not ask her torefrain from putting her hands on her. Claimant felt threatened bythe encounter because Mohan was so close to her that claimant couldsmell Mohan's breath. On August 19, 2000, claimant reported theincident to store security and to the store manager, Terry Turner. However, in her written report, claimant wrote that Mohan askedclaimant to refrain from touching her.

Claimant testified that she had about four or five similarphysical encounters with Mohan. Claimant submitted her secondreport on August 23, 2000. Claimant testified that she alsosubmitted reports in September and November of 2000 and that sheturned in her November report to security agent Mr. Haskell.

On February 18, 2001, both claimant and Mohan were working foremployer. At about 4 p.m., three or four customers were standingby claimant's bay. Claimant testified that she had acknowledgedthe customers and told them that she would take care of them all assoon as possible. She stated that all of the customers told herthat they would wait their turn. Claimant testified that Mohanapproached one of claimant's customers, asking if she could assistthe customer. Claimant told Mohan that the customers had agreed towait for her. Mohan then became angry and told the customer thatshe did not have to wait for claimant. The customer stated thatshe would wait for claimant. Claimant stated that Mohan becameverbally abusive and that the customer asked for a piece of paperand to speak to the manager.

Claimant testified that the customer completed a complaintcard and spoke to store manager Barbara Gerrard. Mohan threatenedto get even with claimant and said that she was sick of claimanttelling her what to do and where she could go on the sales floor. The parties were standing near claimant's bay during thisconversation. Claimant stated that Mohan was pointing her fingerat claimant and stated that she was going to get claimant and eventhe score because she was tired of claimant getting her in trouble. Claimant testified that she felt threatened because Mohan wasreaching over and pointing at her. Claimant testified that Gerrardtold Mohan to return to her bay and thanked claimant for notarguing.

Claimant further testified that, after Gerrard left, Mohanexited her bay and walked over to claimant's bay and startedshouting at claimant. Mohan stated that she was going to finishthe thing between them and show claimant who she was and what shecould do. Mohan was shouting at claimant and pacing back and forthin front of claimant's bay. Claimant stated that she was scared,started crying, and then left the floor.

Claimant returned 20 minutes later with aspirin. She pickedup a cup in her bay to obtain water. Mohan walked alone toclaimant's bay and began shouting at claimant, stating thatclaimant was not "going to get away." Claimant walked to anotherbay and telephoned security. She was told to return to her bay. When she returned, claimant testified that Mohan was at claimant'sbay pointing at claimant and shouting at her. Mohan stated thatshe was "going to finish what she should have finished a long timeago." Claimant stated that Mohan was "not going to let this beover with, so you need do what you do best." Claimant furthertestified that Mohan's arms were out-stretched. Mohan then walkedaround a promotional table near the entrance to claimant's bay. Claimant stepped back and Mohan then grabbed claimant's left armand hair and pulled claimant toward her. Claimant picked up hercup and struck Mohan in the head. A co-worker pulled the twoemployees apart.

Upon review of a security videotape, claimant testified thatit showed Mohan walking to the entrance of claimant's bay with herarms crossed.

Claimant testified that she felt a lot of pain in her arm. She was transported to a hospital. Claimant's doctor subsequentlyprescribed taking bone and artery from claimant's leg andtransplanting it to her left arm, which he had previously treatedfor cancer. Claimant testified that she had not undergone thesurgery because she had no health insurance.

Ellen Edwards, employer's loss prevention manager, testifiedthat claimant never filed any incident or investigative reportswith loss prevention in November 2000. However, investigativesummaries can be turned in to supervisors. She further stated that an agent named Haskell did not work at the River Oaks store inNovember 2000.

Courtney Harris, a Lancome beauty advisor for employer,testified as follows. On February 18, 2001, at about 4:40 p.m.,Mohan walked from the opening of her counter to the front ofclaimant's counter, about three to four feet away. At this time,Harris was about six to seven feet away. Harris testified thatclaimant said to Mohan, in a normal tone: "You don't intimidate me. I'm not afraid of you. If you're going to do something come doit." Harris did not believe that Mohan was walking over to strikeclaimant. Mohan said that claimant could not tell Mohan what to doand that Mohan could go wherever she wanted to go. Harris did notobserve who made the first physical contact.

Barbara Gerrard, acting day manager for employer on February18, 2001, at employer's River Oaks store, testified that she gavethe customer comment card to the customer, and the customer did notreturn the card to Gerrard. In her written statement about theincident, however, Gerrard made no reference to giving the commentcard to the customer.

Claimant testified on rebuttal that she observed the customercompleting the comment card and claimant handed it to Gerrard. When Mohan approached her, claimant testified that she did not sayto Mohan that she was not afraid of her. She also denied saying toMohan, to go ahead and do it.

When called to testify, Mohan invoked her fifth amendment(U.S. Const., amend. V) privilege against self-incrimination.

In a decision dated July 13, 2001, the arbitrator deniedclaimant temporary total disability benefits and found thatclaimant's injury did not arise out of or in the course of heremployment. Based on his review of the security videotape, thearbitrator found that claimant was the aggressor and that sheattacked Mohan with a cup as soon as Mohan was near the bayopening. Mohan did not approach claimant in a threatening manner,but had her arms folded when claimant lunged at her. Thearbitrator further found that Mohan did not pull claimant's hair orarm before the attack. Claimant was not credible. Claimant'sinjuries, thus, did not arise out of or in the course of heremployment with employer. The dispute arose out of the parties'drive for sales commissions, and there was no causal relationshipbetween claimant's injuries and a work incident. The arbitratorthus denied claimant's request for medical costs, temporary totaldisability benefits, and permanent partial disability benefits.

Claimant appealed, and the Commission denied claimant'srequest for compensation, concluding that claimant failed to proveaccidental injuries arising out of and in the course of heremployment with employer. The Commission found claimant'stestimony largely uncorroborated, inconsistent, and implausible. Specifically, the Commission noted that, although claimantcontended that she filed three incident reports between August andNovember 2000 regarding Mohan's bumping her and claimant feelingthreatened, the documentary evidence revealed that only oneincident allegedly involved bumping and no report contains anyindication that claimant felt threatened. The Commission furthernoted that claimant's testimony that her third incident report wasfiled in November and turned in to security chief Haskell wasrebutted by Edwards's testimony that no report was filed byclaimant in November and that Haskell was not working at employer'sRiver Oaks store at that time.

The Commission found that claimant's version of the encounteron February 18, 2001, lacked credibility. Claimant's assertionthat all of the customers agreed to wait their turn wasunconvincing, given that one customer desired to complain to amanager and given that Mohan, not claimant, called for supervision. Claimant was not an innocent bystander in the dispute. Gerrardtestified that her conversation with the customer revealed that thecomplaints were related to both claimant's and Mohan's behavior.

The Commission noted that Harris's testimony contradictedclaimant's. Harris testified that when claimant returned to hercounter after she had left crying, she verbally confronted Mohan,told her that she was not intimidated by her, and invited Mohan todo something if she wanted to do so. Harris believed that Mohanwas not going to strike claimant when Mohan approached the openingof claimant's counter.

The Commission noted that the security video showed Mohanapproaching claimant's work area with her arms folded, contrary toclaimant's testimony. It also noted that, although claimant wassomewhat obscured in the video, it appears that she struck thefirst blow, as the video showed claimant's hand holding the cup andrising toward Mohan's head prior to any overt action by Mohan.

The Commission concluded that claimant's testimony wasunworthy of belief and found that the dispute was initiated byclaimant's refusal to permit Mohan to make legitimate sales inaccordance with employer's policies. Both claimant and Mohan wereequal participants in the altercation and thus both wereaggressors. Accordingly, the Commission denied claimantcompensation. Because the altercation was the culmination of adispute over sales commissions, the Commission concluded that itconstituted a continuation of a work dispute.

One Commissioner dissented, arguing that the majority'sconclusion that both parties were aggressors was not based onestablished law. The dissenting Commissioner concluded that Mohanwas the aggressor in the altercation and thus claimant was entitledto compensation.

The circuit court confirmed the Commission's decision, andclaimant appeals. She argues first that the Commission erred as amatter of law in concluding that both parties were the aggressors. Claimant argues next that the Commission's conclusion that claimantwas an aggressor was against the manifest weight of the evidence.

II. ANALYSIS

Claimant argues that the Commission's determination that bothclaimant and Mohan were aggressors is erroneous as a matter of law. She notes that the Commission cited no authority for theproposition that both participants in a workplace altercation canbe deemed aggressors. At a minimum, claimant requests that weremand the cause so that the Commission can determine the properaggressor. We agree.

The question of whether there can be two aggressors in analtercation constitutes a question of law. We review de novoquestions of law. D. Mayer Landscaping v. Industrial Comm'n, 328Ill. App. 3d 853, 857 (2002).

Generally, injuries arising from an assault by a co-worker atthe workplace during work hours are compensable if the assaultarose in the course of a dispute involving the conduct of the work. Village of Winnetka v. Industrial Comm'n, 250 Ill. App. 3d 240, 243(1993). However, where the party seeking compensation was theaggressor, the party's acts are not within the scope of employmentand are not compensable. Ford Motor Co. v. Industrial Comm'n, 78Ill. 2d 260, 263 (1980).

No Illinois case has addressed the issue of whether more thanone employee may be deemed an aggressor. However, in discussingthe so-called "aggressor defense" or "initial aggressor defense,"commentators define it as a defense that denies compensation to theparty who initiates the altercation, typically through physicalmeans. See 1 L. Larson, Larson's Workers Compensation Law