Workers' Compensation
| Publication year | 2020 |
Workers' Compensation
H. Michael Bagley
J. Benson Ward
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The 2019-2020 survey period again featured decisions from the Georgia Court of Appeals over an interesting array of workers' compensation topics including: robberies, misrepresentations, calculation disputes, and various potential employment situations.1 There was no legislation of significance during the period.
Kil v. Legend Bros., LLC,2 offers insight into unique circumstances presented in going to and coming from work, as well as where the home is a situs of employment. The claimant worked as a restaurant manager and lived with the owner of the restaurant, and each day after work the two spent time at home reviewing sales, receipts, and inventory. one night after closing the restaurant, the owner drove the claimant and a coworker home, and on arriving in the garage they were approached by three men who demanded at gunpoint a bag of money. When the attackers noticed that the claimant had a gun, they fled but shot at the claimant, hitting him in the forearm. The claimant was hospitalized for more than two weeks and underwent multiple surgeries. The claimant requested workers' compensation benefits, and the employer denied his claim on grounds that the gunshot wound did not arise out of the course of employment.3
The Administrative Law Judge (ALJ) determined that the injury arose out of and in the course of the claimant's employment under the
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continuous employment doctrine because the claimant was still acting in his job as a manager at the time of the shooting, as a result of his obligation to review the day's receipts and inventory with the owner each night at home.4 The Board affirmed the finding of a compensable accident, not under the continuous employment doctrine, but on grounds that the accident occurred in the course of his employment because the claimant was with the owner and planning on continuing to work at home.5 Further, the Board ruled that the injury arose out of the employment because the circumstances of the robbery demonstrated that the perpetrators had specifically targeted the men due to their connection to the restaurant and expectations of them carrying money home from the restaurant, thus, "the robbery would not have occurred but for the circumstances of [the claimant's] employment, and it is apparent that there is a causal connection between the conditions under which the employment was performed and the resulting injury."6 The employer appealed to the Clayton Superior Court, which reversed the Board, concluding that the injury did not arise out of the employment because it occurred as the claimant arrived home from the restaurant, and he would have had to return home after work regardless of the scope of his job.7 Furthermore, the court noted he was not a traveling employee.8 Moreover, the superior court noted that the claimant was shot because he was carrying a gun, which the superior court observed was unrelated to his duties for the employer.9
On appeal, the Georgia Court of Appeals first concluded that the Board did not err in ruling that the injury occurred in the course of the employment.10 While the general rule in Georgia is that injuries occurring while an employee travels to and from work are outside the course of employment, the claimant's specific job responsibilities and unique circumstances in living with the owner and reviewing accounts each night at home provided sufficient facts for the Board to determine that the claimant was in the course of continuing to perform his job duties as manager.11 The men did not take any personal detours on the way home and were in the process of performing their final job duties of
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reviewing receipts.12 Additionally, the court noted that the claimant was with the owner in possession of job-related paperwork to resume their work at home.13 Accordingly, "under the unique circumstances of this case," the court determined that the Board did not err in determining that the injury occurred in the course of the employment.14
The court then turned to the issue of whether the accident arose out of the employment, and determined that sufficient factual evidence existed to support the Board's finding that the injury arose out of the claimant's work.15 The specific circumstances of the case, including the robbers apparently specifically targeting the men due to their connection to the restaurant and the likelihood that the men would return home late at night with money from the restaurant, supported a finding of a causal connection between the nature of the claimant's employment and the robbery.16 The court of appeals disagreed with the superior court's conclusion that the claimant was equally exposed to the risk because he would return home regardless of his job. This conclusion did not accord with the Board's finding that the claimant's presence in the garage at the time of the robbery was a direct result of his job responsibilities; that is, the court noted that the issue was whether the claimant's job responsibilities were the proximate cause of his injury. Here, the court noted that some evidence existed to support the Board's findings.17 The court reversed the superior court and affirmed the Board's rulings as they were supported by some evidence.18
In Smith v. Camarena,19 the court of appeals explored the parameters of the "ingress/egress rule" in public parking from the perspective of a civil defendant attempting to utilize the exclusive remedy of the Workers' Compensation Act20 as a defense.21 The employee was shot and killed in the parking lot outside the grocery store where she was employed, and her mother and her estate brought a tort suit against the store and its owners and managers. The deceased employee clocked out as the store was closing, left the store, and walked into the parking lot to talk with a
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coworker who was sitting in a parked car with the coworker's husband. The employer did not own or control the parking lot, which was owned and controlled by the store's landlord, served multiple businesses in the shopping center, and was open to the public. While the two women were talking in the parking lot, two men approached, pointed a gun, and demanded their purses. At this time the grocery store's assistant manager saw the robbery in progress as he was leaving the store and confronted the robbers. The assistant manager also had a firearm, and he and the robbers exchanged gunfire. The robbers fled but the employee was shot in the gunfire and subsequently died.22
The defendants in the civil suit moved for summary judgment, arguing that the case was barred by the Workers' Compensation Act's exclusive remedy provision, O.C.G.A. § 34-9-11(a),23 because the injury was compensable under the Act. The trial court granted summary judgment based on the exclusive remedy provision, and the plaintiffs appealed. The plaintiffs argued that the shooting might have arisen out of employment, but it did not occur in the course of the employment, because the deceased employee was shot after work at "a location that was not owned, maintained, or controlled by her employer."24
The court of appeals observed that whether an injury occurs in the course of employment depends on whether the injury took place during the period of employment at a location where the employee reasonably would be in the performance of her duties or whether the injury occurred during a time when the employee is off duty, free to do as she pleases, and not performing any job duties.25 While the deceased employee was off duty at the time of the shooting, the defendants argued that the claimant was still in the course of her employment because of the ingress/egress rule, which generally provides that an employee's period of employment ordinarily includes a reasonable time before and after work for the employee to enter and leave the place of work while on the employer's premises.26 ordinarily, an injury that occurs in a parking lot owned and maintained by the employer will be deemed to have occurred on the employer's premises for purposes of the ingress/egress rule.27 However, as noted by the court of appeals, the key distinction is whether the parking lot is owned, controlled, and maintained by the employer;
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where the parking lot is not owned, controlled, nor maintained by the employer, then the parking lot is not part of the employer's premises and the ingress/egress rule should not apply.28 Because the parking lot was neither owned, controlled, nor maintained by the employer, an issue remained as to whether the defendants could show that the injury occurred in the course of the employment, and thus the court of appeals reversed the summary judgment decision.29 The court distinguished the defendants' arguments that the positional risk doctrine supported summary judgment (on grounds that the employment brought the deceased employee within the range of the danger),30 because this doctrine addresses whether an injury arose out of the employment, not whether it occurred in the course of the employment.31
In Hartford Casualty Insurance Co. v. Hawkins,32 the court of appeals reiterated the Board's fact-finding prerogative, in the context of a claimant reaching maximum medical improvement and returning to full duty work status.33 The claimant had an accident at work in October 2015 when she tripped backwards and fell to the floor, but she did not immediately seek medical treatment. The employer did not have a proper posted panel of physicians at the time of the accident, but one of the owners talked with its insurer after the accident and compiled a panel of physicians and authorized treatment with a physician selected from the panel by the claimant. The claimant presented for her initial visit with the authorized treating physician...
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