Workers' Compensation

• Publication year: 2021

Workers' Compensation

H. Michael Bagley

J. Benson Ward

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Workers' Compensation

H. Michael Bagley^*

J. Benson Ward^**

The June 1, 2020 through May 31, 2021 survey period was notable for a limited number of appellate decisions—which included an impactful decision from the Georgia Supreme Court overruling decades of prior precedent—and no legislation.¹

I. Scheduled Lunch Break Exception

For eighty-five years, Georgia courts have found that an accident occurring during an employee's scheduled lunch break may not have arisen out of the employment, and therefore would not be compensable, because a lunch break is a personal matter unrelated to the employer's work.² During the survey period, in Frett v. State Farm Employee Workers' Compensation, the Georgia Supreme Court overruled Ocean Accident & Guarantee Corp. v. Farr, and its progeny, to hold that an injury occurring on an employer's premises during an ordinary, unpaid lunch break was compensable.³

The claimant in Frett slipped and fell while on a scheduled lunch break inside the employer-provided breakroom.⁴ It was undisputed that the claimant was free to do as she pleased on her break, including leaving the office, though she was on the employer's premises when the injury occurred.⁵ She filed a workers' compensation claim, which the employer

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denied based on the scheduled lunch break exception.⁶ The Administrative Law Judge (ALJ) found that the claim was compensable and awarded benefits, based on a prior court of appeals decision, Rockwell v. Lockheed Martin Corporation,⁷ which held that, while injuries occurring during a regularly scheduled break are generally not compensable, injuries occurring on the employer's premises during periods of reasonable "ingress and egress" to and from those premises are compensable.⁸

The Appellate Division of the State Board of Workers' Compensation (Appellate Division) reversed the ALJ's award, concluding that the injury did not arise out of the employment because it occurred during her regularly scheduled break while she was leaving to attend to a purely personal matter, and the superior court affirmed.⁹ The Georgia Court of Appeals noted the potential conflict between the ingress and egress rule and the regularly scheduled break exception.¹⁰ However, it deferred to the existing Georgia Supreme Court precedent laid down in Farr, and ruled that the claimant's injury did not arise out of her employment because it occurred while she was engaged in an individual pursuit while on a scheduled lunch break during which time she was free to do as she pleased.¹¹

The supreme court noted that the analysis of whether an injury occurred "in the course of" employment generally focuses on the nature of the employee's activity at the time of the injury. This includes injuries sustained when engaged in the performance of the employee's assigned work as well as when engaged in activities "incidental" to the assigned work, with such incidental activities including ingress and egress to the place of work while on the employer's premises and attending to personal needs, such as eating a meal or using the restroom.¹² The accident in Frett occurred when the claimant was preparing to eat lunch while on her employer's premises which the court concluded was an incidental activity and thus the injury occurred in the course of employment.¹³ The

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lack of payment during a lunch break or the freedom to do personal tasks at the time of the injury is not dispositive, and those factors may be more significant in closer cases where the nature and timing of the activity have a tenuous connection to the usual work hours or work-related activities.¹⁴

Turning to the "arising out of the employment requirement for a compensable claim, the court briefly explained that an injury during a scheduled lunch break on the employer's premises can arise out of employment when a reasonable person would perceive a causal connection between the conditions under which the employee works and the resulting injury.¹⁵ Because the claimant was injured when she slipped and fell on a wet floor in a breakroom on her employer's premises, the court determined that a causal connection existed between the injury and the conditions of employment and so the injury arose out of her employment:

It is undisputed that [the claimant, an insurance claims associate] was injured when she slipped and fell on the wet floor of the breakroom on her employer's premises. It logically follows that her injury was causally connected to the conditions under which she worked, and her injury, therefore, 'arose out of her employment.¹⁶

In reaching such a conclusion, the court did not adhere to the principle of stare decisis, and instead reexamined and overruled Farr, noting apparent inconsistencies in case law decisions resulting from the holding in Farr.¹⁷ In Frett, the court considered the reasoning in Farr to be unsound and noted that the claimant in Farr tripped and fell on steps at his work site, while engaged in an activity incidental to his employment (preparing to eat lunch), and such accident was not unrelated to the claimant's work.¹⁸ Subsequently, in Frett v. State Farm Employee Workers' Comp., the Georgia Court of Appeals vacated its earlier decision and adopted the Georgia Supreme Court's decision as their own.¹⁹

II. Statutory Employment and Exclusive Remedy Provision

In Brack v. CPPI of Georgia, LLC,²⁰ the Georgia Court of Appeals addressed the issue of whether a general contractor was a statutory

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employer under O.C.G.A. § 34-9-8,²¹ and therefore immune from tort liability in the pending civil suit pursuant to O.C.G.A. § 34-9-11,²² in the context of a subcontractor's employee maintaining portable toilets on a construction site.²³

CPPI entered into a construction management-at-risk contract to build a school, and CPPI contracted with Tony's Jons to provide portable toilets for the construction site.²⁴ The plaintiff was hired through a temporary placement agency to work for Tony's Jons to deliver the portable toilets and to clean and maintain them. He was injured while pumping out a portable toilet and filed a civil suit against CPPI for negligence and damages for pain and suffering...