Workers' comp claims: Drinking & fighting on the job in Georgia
Review allowable defenses for denying workers’ comp claims for injuries arising from willful misconduct and deviations from the scope of employment in Georgia's no-fault workers' comp system.
The foundation of the Georgia Workers’ Compensation Act is to provide medical and wage loss benefits to injured workers in a no-fault system without having to undergo the rigors of filing a lawsuit and navigating the legal system.
In exchange, an injured workers’ remedies under the law are limited and absent in rare circumstances; it is the exclusive remedy available against an employer when seeking recovery for injury or even death arising out of or in the course of employment. In exchange for the limitation in remedies available to an injured worker, the employer gives up many of the affirmative defenses that may be available in traditional tort actions.
Although it is a no-fault system, when a claim’s compensability is in question, the employee carries the burden of proof when filing a claim for benefits. That burden requires the injured worker to prove their injury arose out of and in the course of employment.
The workers’ comp act also provides defenses for an employer when an injured worker engages in misconduct, the conduct arises out of unlawful behavior or is, in fact, outside the course and scope of employment. O.C.G.A. § 34-9-17 specifically provides, “no compensation shall be allowed for an injury or death due to the employee’s willful misconduct, including intentionally self-inflicted injury, growing out of their attempt to injure another or the willful failure or refusal to use a safety appliance or perform a duty required by statute.”
Willful misconduct is defined in this regard as including all conscious or intentional violations of law or rules of conduct, obedience to which is not discretionary, as distinguished from inadvertent, unconscious or involuntary violations.
Willful misconduct: intoxication
Asserting an intoxication defense under O.C.G.A. § 34-9-17(b) creates a shifting of burdens between employer and employee. While O.C.G.A. § 34-9-17 generally places the initial burden upon the employer, there is an exception when the employee tests positive for alcohol and drugs, as shown by chemical analysis of the employee’s blood, urine, breath or other bodily substance.
Specifically, O.C.G.A. § 34-9-17(b) provides where testing has been performed demonstrating an employee has 0.08 grams of alcohol or greater in his blood within three hours of the time of the alleged accident, or where an employee has any amount of marijuana or controlled substance in his blood within eight hours of the alleged accident, or when the employee unjustifiably refuses to submit to a reliable, scientific test, there will be a rebuttable presumption the accident and injury or death were caused by the consumption of alcohol or by the ingestion of marijuana or the controlled substance.
This rebuttable presumption that the injury or death was caused by the consumption of alcohol or controlled substance effectively relieves the employer of meeting the “proximate cause” element of their defense – at least until the employee rebuts the presumption.
The burden then shifts to the employee to rebut this presumption by proving: (1) he did not ingest the alcohol or illicit drug; (2) if he did, he was not intoxicated; (3) if he did ingest the alcohol or illicit drug, he was not intoxicated at the time of the work accident; (4) that the accident was not proximately caused by his intoxication; or (5) if he refused testing, it was justified because the proposed testing was not a reliable, scientific test to be performed pursuant O.C.G.A. § 34-9-415.
The claimant has the burden of showing by “clear, positive, and uncontradicted evidence” that the use of alcohol or controlled substances was not the cause of the injury.
Each case is fact-specific, though generally speaking, the employee may rebut the presumption in cases where the accident would have occurred whether or not the employee was intoxicated.
Accordingly, even with a valid positive drug test or a refusal, it is good practice for the employer, and their defense counsel, to assume the employee may be able to rebut the presumption, resulting in a shifting of the burden back. Thus, the employer should prepare to prove the employee’s intoxication was the proximate cause of the on-the-job injury.
Willful misconduct: Fights
Georgia expressly excludes intentional acts by the employee and acts derived from matters personal to the employee from being compensable. Determining whether a fight arose out of or in the course of employment is not always clear and requires a thorough examination of the facts.
Of course, the burden of proof is on the employer if the employer is asserting an “aggressor defense.” Conversely, the burden of proof would be on the employee to prove the injury arose out of or in the course of employment.
Where an employee’s on-the-job injury is the result of his or her attempt to injure another, workers’ compensation benefits may be barred under O.C.G.A. § 34-9-17(a). Furthermore, an employee’s injuries sustained while fighting with a co- worker are not compensable when the employee is the aggressor. Additionally, an injury caused by the willful act of a third person directed against an employee for reasons personal to the employee is not an injury that arises out of and in the course of employment.
However, injuries sustained by the victim of an assault while at work may be deemed compensable if the fight stems from the employee’s work duties. Additionally, the Georgia Court of Appeals has interpreted “aggressor” as not just the one who initiated the physical altercation, but also as the individual who precipitated the altercation by using so-called fighting words, threats, or even abusive language.
Injuries not arising out of or in the course of employment
Unlike willful misconduct defenses, when an employee suffers an injury while deviating from the scope of employment, an employer can deny on the grounds it did not arise out of or in the course of employment. The employee then bears the burden of proof.
Arising out of employment requires a causal connection between the accident and the employee’s job duties. In the course of employment refers to when an accident occurs within the period of the employment, at a place where the employee reasonably may be in the performance of the employee’s duties and while the employee is fulfilling those duties engaged in something accidental thereto.
The court of appeals, General Accident Fire & Life Assurance Corp. v. Prescot found that an employee’s injury does not arise out of and in the course of his employment when he breaks the continuity of his employment for a personal mission and is injured before bringing himself back into the scope of his employment.
The courts have since taken the length and nature of the deviation into consideration when determining if an accident is compensable.
The court of appeals has defined a “slight deviation” as “an act so closely connected with the master’s affairs that even though the employee may derive some benefit from it, it may nevertheless be fairly regarded as arising out of and in the course of employment,” in Lewis v. Chatham Cty. Savannah Metro. & Planning Comm’n.
In contrast, where an employee has deviated from his employment for reasons wholly unrelated to the job, any injury sustained while the deviation persists is not compensable.
Employers should be proactive on the front end to help set up for the best defense, no matter which one the employer may need to assert. Having systems already in place for swift and thorough investigation of accidents, proper implementation of alcohol and drug screens, and securing evidence including written statements of any relevant witnesses will set up an employer for success no matter what defense may be asserted.
Along with that, it is essential that employers understand the law relevant to these potential defenses, so the right information is secured early on. When in doubt, employers can contact their insurers or defense counsels who are able to advise on what processes or procedures they should have in place, if not already, depending on their industry.
Martine Cumbermack is a partner at Swift, Currie, McGhee & Hiers in Atlanta. She provides counsel and representation in workers’ compensation matters on behalf of employers, insurance companies, self-insureds and third-party administrators in both Florida and Georgia.
Alexis Herring is an attorney at Swift, Currie, McGhee & Hiers in Atlanta. She defends employers and insurers in workers’ compensation claims throughout Georgia.
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