COMPENSABILITY ISSUES: WHAT CONSTITUTES ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

Presented By:
Jeffrey E. Hickcox

1. Definitions

Generally speaking, an injury arises out of employment if there is a causal connection between the injury and the workers' employment. Most injuries occurring at work are clearly compensable because they relate to activities associated with the employee's work. Some situations, however, obviously may be the result of injuries that are not caused by the employment.

Historically, there have been five interpretations of what constitutes "arising out of" employment. The "proximate cause" approach is no longer followed in this state. Briefly, the "proximate cause" approach holds that an injury arises out of the employment when, upon consideration of all the circumstances, there is a causal connection between the injury and the conditions under which the work was performed, and the injury is a natural incident of the work. Fried v. United States Fidelity & Guaranty Corp., 192 Ga. 492, (1941).

Another interpretation of what constitutes "arising out of" employment is the "peculiar risk" approach. Again, this is no longer followed in Georgia. This theory held that it was not enough for a claimant to prove that he would not have been injured had he not been at work. Rather, it was necessary to show that the peril to which he was exposed was "peculiar" to his employment. If the public was exposed to a peril similar to that that injured the employee, the injury was not compensable. This interpretation was completely overruled by National Fire Ins. Co. v. Edwards, 152 Ga. App. 566 (1979).

Today, Georgia blends the other three interpretations. These include the "increased risk" doctrine; the "actual risk" doctrine; and the "positional risk" doctrine.

The "increased risk" doctrine holds that the injury arises out of the employment if the employment environment increases the likelihood of the harm suffered by the employee. An example of this is the convenience store clerk who works alone at night and is shot in a robbery attempt. Certainly that environment is one which increases the likelihood of such an assault.

The "actual risk" doctrine overlaps the increased risk doctrine and is essentially a slightly broader application of the latter. Courts applying this doctrine do not require that the employee show that the work environment increased the likelihood of the harm suffered. Indeed, the public at large may have been exposed to the same peril. All the employee need show is that the peril may reasonably be considered to arise from the employment.

The broadest definition and the one applied in Georgia is the "positional risk" doctrine. Our Appellate Courts adopted this in 1979. It requires only that the employee show that his work brought him within the range of the danger. For example, an employee who is struck by lightning while working in a lumber yard need not prove that he was more likely to be struck because he was in a lumber yard, or that a lightning strike is reasonably associated with working in a lumber yard. Rather, he must only show that his employment placed him in the place (lumberyard) where he was when the lightning struck him.

"In the course of" requires that the injury occur during normal working hours; at a place where the employee may reasonably be expected to be in the performance of his duties; and while performing those duties.

2. Frequent Issues

   The definitions seem to be pretty straightforward. However, there are numerous twists to "arising out of" and "in the course" of employment. Below is a discussion of some of the more frequent issues that are presented in determining the compensability of claims.

   A. Idiopathic Falls

   An idiopathic fall is one in which an individual falls for a cause unknown. These falls do not arise out of the employee’s employment. However, this is a very narrow exception. If the employee faints and strikes nothing but the floor or a baseboard, the accident is generally not compensable. Prudential-Bache v. Moore, 219 Ga. App. 847 (1996). Of course, if the employee fainted because of exertion, there would be a different result. If the individual strikes an object indigenous to the workplace in the fall, the accident is deemed to arise out of the employment. For example, if an employee faints and strikes a workbench, pallet, machine, etc., the accident will be deemed to arise out of the employment.

   B. Travel to and from work

   The general rule is that routine travel to and from work is not compensable. However, it seems there is no rule of law that does not have exceptions to it. This general rule is no different.

   1. Exceptions to general rule

The key question to ask in determining whether or not this exception applies is: "Did the employer furnish transportation in furtherance of the employment?" It is not enough that transportation was simply furnished. In Electric Mut. Liab. Ins. Co. v. Grynkewich, 122 Ga. Ap. 765 (1970), the employee was killed in an accident on the way home from the office in a company car. Benefits were awarded although there was quite a vigorous dissent. This case does not hold that a claim is compensable just because the employee is injured in a company car. Rather, there must be some causal connection between the nature of the employment and the travel. In this case, the claimant was on his way home from a business trip. Instead of proceeding directly home from the trip, he stopped by the office to pick up some papers before going home. Accordingly, the Court reasoned that the stop at the office to pick up the papers was simply an extension of the business trip so that the drive from the office to home was not a routine to and from work trip. Had the employee driven directly home without stopping at the office, the accident would clearly have been compensable. This case does appear to be a stretch to avoid a denial of benefits simply because the employee stopped by the office before heading home.

The same issue is presented in Jose Andrade Painting v. Jaimes, 207 Ga. App. 596 (1993). The employer in this case was a painting contractor who met his employees each morning at an apartment complex where many of them lived. Because many of the workers did not have transportation, employees would get to job sites in car pools using employee personal vehicles and vehicles furnished by the employer. On occasion, the employer would purchase gas for those who used their personal cars. However, he never paid employees for their travel time. The claimant in this case was injured in a car owned and driven by a coworker who was not reimbursed for gas. The claim was denied because the employer did not furnish transportation and he was not paid for travel time. Had he been riding in an employer-furnished vehicle, this would arguably have been a compensable event, as the claimant had no other way to work. In that instance, transportation would have been furnished in furtherance of the employment.

An example of this exception is found in Travelers Insurance Co. v. Moore, 115 Ga. App. 295 (1967). The claimant was an employee of a vending company. During the course of the day, he collected money from his customers. He was required to bring this money to the office at the start of the following day. The claimant was injured in an auto accident on the way to work with the money. Although he was driving his own car and was not paid for his travel time, the Court awarded benefits since he was doing something required by the employer and in furtherance of its business.

In Lewis Wood Preserving Co. v. Jones, 110 Ga. App. 689 (1964), the employee sometimes received a call to report to the employer’s plant at night. He was paid additional sums whenever he responded to one of these calls. On the date of the accident, he was killed on the way to the plant in response to a special call. The Court awarded benefits reasoning that this was no a routine trip to work. Rather, he was an on call employee who was doing something in furtherance of the employer’s business at the time of the accident.

The scope of employment is broader in the case of employees who travel. They are exposed to the "perils of the highway" which are compensable. Injuries occurring in hotels and motels are generally compensable, as are injuries on the way to or from restaurants. Whether or not the employee is paid a per diem does not make a difference. However, there are some restrictions on the scope of employment. An employee who parties all night and takes a ride home with a stranger who then mugs him does not suffer a compensable event. The general rule in regard to traveling employees: if ministering to a personal need at the time of the injury (eating, sleeping, clothing), the accident is compensable.

Some employees are considered, by the nature of their job, to be continuously employed. An example is found in Barge v. City of College Park, 148 Ga. App. 480 (1978). In that case, the employee was a uniformed police officer on his way to work in a personal vehicle when he was shot and killed. In awarding benefits to the family, the Court held that an officer of the law is on duty or subject to call twenty-four hours a day. Accordingly, he was continuously employed and thus his death was compensable.

The so-called "Good Samaritan Rule" does not apply in our state. The issue was confronted by the Court of Appeals in Olde South Custom Landscaping, Inc. v. Mathis, 229 Ga. App. 316 (1997). In that case, the employee was struck by a car when he stopped on I-85 to help a stranded motorist. The Court held that whether or not the definition of "arising out of" should be extended to include the Good Samaritan Rule was a matter for the Legislature. It should be noted that the Board found this to be a compensable claim.

What about the employee who has a compensable claim and is injured on the way to or from a medical appointment? Is that a compensable event? The answer depends on the purpose of the visit.

In Street v. Douglas Co. Road Dept., 160 Ga. App. 559 (1981), the claimant seems to have been punished for returning to work. Although he was injured on the way to an authorized physical therapy appointment, the accident was found by the Court to be not compensable. Since he had returned to work, his appointments were not set during working hours. Seizing upon this, the Court reasoned that his attendance at physical therapy was voluntary and took place during a time that the employee was free to do what he wanted. The Court did not address the claimant’s obligation to cooperate with medical treatment or reimbursement for travel expenses. It should be noted that the Board found this to be a compensable injury.

Benefits were awarded in the case of Firestone Tire & Rubber v. Crawford, 177 Ga. App. 242 (1985). The claimant, who was still out of work, was injured on the way to see an authorized physician. The Court noted that the claimant was required by the employer to see a physician as a precondition to returning to work. Although it went unnoticed in Street, the Court pointed out that the employee was paid for mileage when going to the doctor. This was a 5-4 decision and is difficult to distinguish factually from Street. If this reasoning is taken to its conclusion, even an employee injured on the way to an IME, whether in a compensable claim or not, would arguably have a compensable injury.

In 1993, the Court took a more employer-oriented approach in Combined Ins. Co. v. Peoples. 207 Ga. App. 560 (1993). The claimant made an appointment on her own for evaluation of headaches, which she contended, was related to her compensable injury. In denying the claim, the Court relied on the fact that since she acted on her own in setting the appointment and that she did so without the knowledge or direction of the employer/insurer. Again, it should be pointed out that the Board found this claim compensable.

As is seen by these cases, the case law unfortunately does not lend itself to a clear result in cases involving travel to medical appointments. Based upon these cases, it is submitted that at least some of the following factors need to be present to make out a compensable claim involving travel to a medical appointment: 1) the claimant is still in the employ of the employer at the time of the accident; 2) the employer or insurer required the attendance at the appointment; 3) transportation was furnished or travel expenses provided; 4) attendance was a precondition to returning to work; 5) the employer/insurer set the appointment rather than the claimant; 6) the claimant was paid by the employer at the time of the appointment. When presented with one of these type cases, one should remember that the Board is likely to find the accident compensable. Based on the history of the cases discussed above, denial of the claim islikely to require a trip to an appellate court.

Another frequent sub-issue in travel cases is ones involving a deviation. This is the case of the employee who, while on his way to see a customer, and remembers the driving range a couple of miles off the main road. Since he has his clubs in the back and is running ahead of schedule, he turns off of his course and hits a couple of buckets of balls. If the accident happens after he turns off of the main road and while headed toward the driving range, the accident is not compensable. However, what happens if the accident occurs while he is on his way back to the main road after hitting the balls? He is still at a place where he would not have been but for the personal deviation. The question to be asked is: Did the injury occur before his acts brought him back into the line of employment? Georgia follows a minority of jurisdictions and holds that the accident is in that instance compensable. According to the theory advanced by our courts, the claimant’s employee’s object, after accomplishing the personal mission, is the single purpose of getting to his employment destination.

C. Reasonable time for ingress and egress

Normally an employee is found to have an injury which arose out of and in the course of employment if the individual is injured on the company premises at a reasonable time before and after work would have normally started, even if the employee was normally required to clock in from work and had not punched the time clock prior to the injury. There is no exact amount of time written into the Georgia law regarding this, but there is at least one appellate case, which holds that 30 minutes, is a reasonable amount of time for ingress and egress. WestpointPepperall, Inc. v. McIntire, 150 Ga. App. 778 (1979). The nature of the business may play a role in determining how much is a reasonable amount of time for ingress and egress. Further, one should remember that the rule allowing reasonable time for ingress and egress also applies in rest break and lunch break cases.

D. Rest break/lunch break

Accidents occurring during a rest break or lunch break may or may not be compensable. In order to defeat a claim based upon this exception, three items are necessary. It should be remembered that the rules of reasonable ingress and egress apply to these cases as well.

First, the break must be a scheduled one. Accordingly, the employee injured on the way to the bathroom for during an unscheduled break sustains a compensable injury.

Second, the accident must occur during a time that the employee is free to do as she chooses. The employer must have no control over the employee during this time for the exception to apply. The employee must be free to leave the premises during the break if she desires. Further, the employee must not be subject to recall by the employer during the break.

Third, the employee must not be performing some act incidental to work or beneficial to the employer when the accident occurs. For instance, a secretary who has picked up lunch for the boss and is involved in a car accident on the way back to the office likely sustains a compensable injury. Similarly, a plant employee who, after clocking out for lunch, is injured carrying a box to the loading dock on his way out of the building, sustains a compensable injury.

E. Parking Lots

If an employee is injured in a parking lot that is not owned or controlled by the employer but is open to the public in general, the injury does not arise out of and in the course of the employee's employment. Tate v. Bruno's, Inc/Food Max, 200 Ga. App. 395 (1991). In that case, the claimant clocked out and walked directly to the parking lot. Her injury occurred less than ten minutes after she clocked out. The Court denied benefits holding that the ingress/egress rule does not apply to injuries in public parking lots not maintained or controlled by the employer. Had the lot been owned by Bruno’s this would have been a compensable case under the rules of reasonable ingress and egress.

Accidents during company-sponsored events such as picnics can be compensablein certain circumstances. The Court of Appeals in Crowe v. Home Indemnity Co., 145 Ga. App. 873 (1978) cited Professor Larson in setting forth prerequisites for recovery in these type cases. "Recreational or social activities are within the course of employment when (1) they occur on the premises during a lunch or recreation period as a regular incident of employment; or (2) the employer by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of employment; or (3) the employer derives substantial direct benefit from the activities beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life." Larson, The Law of Workmen’s Compensation, Vol. 1, 5-62, (Matthew Bender 1979 Rev.).

The general rule is that injuries sustained on company-sponsored sports teams are not compensable. Our Court of Appeals considered the issue in City Council of Augusta v. Nevils, 149 Ga. App. 688(1979). The Nevils Court again relied on Professor Larson and cited four criteria: 1) the accident occurred on the employer’s premises and during working hours; 2) the team was organized at least in part on the employer’s initiative; 3) the employer contributed money or equipment to the team; 4) the employer derived some benefit from the employees’ participation on the team. Although the Board found this sports team's accident compensable, the Court of Appeals held that these criteria were not met so that the accident was not compensable.

Injuries sustained as a result of playing practical jokes and playing with coworkers are not compensable unless the claimant wasthe unwitting victim of such a joke or play. Knight v. Liberty Mutual Insurance Co., 141 Ga. App. 409 (1977).

Compensability of injuries sustained in fights on the job focus on two main issues: 1) who was the aggressor; and 2) about what did the fight arise. Under no circumstances may the aggressor in a fight recover for injuries sustained. American Fire & Casualty Co. v. Gay, 104 Ga. App. 840 (1962). Similarly, if the fight is about purely personal issues, no participant may recover for injuries sustained. City of Atlanta v. Shaw, 179 Ga. App. 148 (1986).

Georgia law has long held that an injury or accident that was caused by the worker being under the influence of alcohol or drugs constitutes willful misconduct and is thus not compensable. However, the law was substantially strengthened in 1994. According to the 1994 Act, if any amount of marijuana or controlled substance is found in the employee's blood within eight hours of the time of the alleged accident, there is a rebuttable presumption that the accident was caused by the ingestion of the marijuana or controlled substance. O.C.G.A. § 34-9-17(b)(2). Similarly, if 0.08 grams or greater of alcohol are found in the employees blood within three hours of the accident, there is a rebuttable presumption that the accident was caused by the consumption of alcohol. O.C.G.A. § 34-9-17(b)(1). Finally, if the employee "unjustifiably" refuses to submit to a drug test following the accident, there is likewise a rebuttable presumption created that the accident was caused by the consumption of alcohol, marijuana, or other controlled substance. O.C.G.A. § 34-9-17(b)(3).

There are some problems with defending cases on drug and alcohol tests. First, you have to be concerned about admissibility of the test. Was it done under a chain of custody? Was the testing done in compliance with O.C.G.A. § 34-9-415? Once the test is admissible, can the employee rebut the presumption? Drug tests identify metabolites, or by-products of drugs excreted by the body after use. This means that a person will test positive for use of certain drugs for several days after use. Can the employee get around this by admitting to use a few days before the accident? If that becomes an issue, it may be necessary to have testimony that the claimant appeared intoxicated or was observed using drugs before the accident. What if you can show a person to be under the influence but intoxication played no role in the accident? For instance, an intoxicated employee involved as a passenger in a compensable motor vehicle accident has a compensable injury, as the passenger’s intoxication did not cause the accident. However, if an employee is injured who chooses to enter a vehicle operated by a coworker known to be intoxicated, the employee is guilty of willful misconduct and cannot receive benefits in an accident caused by the intoxicated coworker. J. C. Lewis Enterprises v. Keith, 70 Ga. App. 855 (1984).