Publications

GETTING STARTED

Determining if the Claim is Compensable

And

Taking a Statement From the Claimant

THE COMPENSABILITY OF CLAIMS

1. ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT DEFINED

An injury must arise out of and occur in the course of the employee's employment to be compensable.

A. Arising out of -- causal connection

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 compensable because they relate to activities associated with the employee's work. Of course, not all injuries occurring in the workplace arise out of the claimant’s employment. For instance, an employee who suffered a shoulder injury by putting on her coat while leaving to go home was held to have had an injury which arose out of her work. Davis v. Houston General Ins.Co., 141 Ga. App. 385 (1977). Idiopathic falls are another example of an injury that may occur in the course of an employee’s work but not arise out of it. This will be discussed in more detail below.

"In the course of" generally refers to the claimant having an injury during normal working hours at a place where the employee may reasonably be expected to be in the performance of his duties.

Idiopathic falls occur when an employee falls to the floor for a cause unknown. Such injuries frequently may be denied on grounds that it does not arise out of the claimant’s employment. Prudential-Bach v. Moore, 219 Ga. App. 847 (1996). However, if the individual should fall and strike an object indigenous to the workplace, such as a pallet or workbench, the resulting injury will be found to arise out of the claimant’s employment and thus compensable.

B. Travel to and from work

Injuries sustained while traveling to and from work are generally not compensable unless the employer furnishes transportation to the employee. If the employee is paid for travel time, provided with a company car, or reimbursed by the employer for the cost of transportation to and from work, the accident may be compensable. Continental Casualty Co. v. Thompson, 130 Ga. App. 270 (1971). Injuries in a personal vehicle may also be compensable if the employee is performing some act beneficial to the employer, such as carrying equipment in a pickup truck.

C. Reasonable time for ingress and egress

Employees are allowed a reasonable amount of time to enter the employers’ premises before work and a similar reasonable amount of time to exit the premises at the end of the workday. Injuries occurring during these times are generally compensable. It should be noted that the courts have not established how much time is "reasonable." The courts have held that an injury occurring thirty minutes before work was a reasonable time for ingress. U.S. Casualty Co. v. Russell, 98 Ga. App. 181 (1958); Westpoint Pepperall, Inc. v. McIntire, 150 Ga. App. 778 (1 979).

D. 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). However, if the employer owns the parking lot, it is generally held to be part of the employer's premises and, if the employee is injured in the parking lot, generally this is covered under the reasonable time for ingress and egress as a compensable situation.

An accident caused by intoxication is clearly not compensable.O.C.G.A. § 34-9-17 creates a rebuttable presumption that an accident was caused by the ingestion of alcohol, if within three hours of the accident, the employee’s blood alcohol level is 0.08 grams or greater. 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 it was caused by the ingestion of the marijuana or controlled substance. O.C.G.A. § 34-9-17(b)(2).If an employee "unjustifiably refuses" to submit to a drug or alcohol test, there is a rebuttable presumption that the accident was caused by the consumption of alcohol or drugs. O.C.G.A. § 34-9-17(b)(3).

There are some problems in relying upon this statute. The claimant can present evidence that he or she was not under the influence at the time of the injury. For example, marijuana remains detectable for up to thirty (30) days after use. It is very easy for the claimant simply claim that he last used the drugs two weeks before. Absent some evidence that the claimant was impaired at the time of the injury, the claimant may be able to rebut the presumption in favor of the employer. Similarly, the claimant can recover by showing that, even though intoxicated, the accident would have occurred anyway. For example, a claimant who is standing in an appropriate place and is struck by a falling box may be able to convince the Board that the ingestion of alcohol or drugs played no role in the occurrence of the accident.

F. Horseplay

An employee injured while engaged in practical jokes or playing with co-workers and does not sustain a compensable injury. However, an employee who is not a participant in, but is injured because of, the horseplay of another does sustain a compensable injury. Knight v. Liberty Mutual Ins. Co., 141 Ga. App. 409 (1977).

Injuries occurring during breaks are not compensable so long as certain criteria are met. Specifically, the break must be scheduled; the claimant must be free to do as he chooses during such time; and the employee must not be performing any act incidental to his employment when the accident occurs. Home Indemnity Co. v. Swindle, 146 Ga. App. 520 (1978). However, the rule of reasonable ingress and egress still applies in these cases. Further, employees are allowed a reasonable time to go to and from their workstation to a break room. The defense is generally harder to make out in rest break cases because of the short time generally allowed for such breaks. Still, the defense can be made so long as the employee is free to do whatever he or she chooses. This must necessarily include the freedom to leave the premises of the employer.

I. "Injury" -- What is an injury? Must it be physical?

Under Georgia law, an injury must be a physical injury. There must be some physical occurrence as opposed to a merely mental injury. Hanson Buick, Inc. v. Chatham, 163 Ga. App. 127, 292 S.E.2d 428 (1982). This does not mean that there has to be an actual physical impact, and stress, in fact, can be held to be a compensable injury if it causes a discernable physical problem, such as a myocardial infarction that results in some objective injury to the heart, or a stroke, which is also a physical injury although not caused by a physical impact.

Injuries which do not occur as a result of a specific event but are the result of day-to-day "cumulative trauma" are also held to be compensable, and the date of accident is normally found to be the date of disability.

RECORDED STATEMENTS

The recorded statement is an excellent opportunity to obtain information that may later be used to defeat a claim or conduct meaningful surveillance. Most statements are "scripted" in the sense that canned sets of questions are asked by the interviewer. While this is not all bad, there are some pitfalls in this approach of which the interviewer should be careful. This discussion is focused on statements in claims where compensability is questionable or a denial is expected.

First, before beginning any statement, the interviewer should find out as much about the claim from the employer and available witnesses as possible. The more you know, the better the questions you can ask. Remember, if the interview is conducted shortly after the alleged accident and before an attorney is retained, the claimant will most likely not have been "coached" about answering questions. If you have a good knowledge about the facts before beginning the statement, you will have a much better opportunity to identify doubtful aspects of the claim during the interview. You are then better equipped to ask follow-up questions that may lead the claimant to give answers that are inconsistent with facts which may be proved at a hearing.

Before beginning the interview, you should ask yourself what you hope to obtain from the interview. For instance, is this a case in which the employer denies any knowledge of a claim? Are you just gathering some basic information in a clearly compensable claim? Is there a specific defense (such as notice or failure to meet a statutory requirement in a hernia claim) that you are trying to establish? Do we know that there is a past history of physical problems, which we believe the complaints are attributable to? Is there any issue about light duty work?

Once you have decided on what the purpose of the interview is, you need to make a "game plan." Simply stated, this should be an area of questioning that you "hone in" on in addition to your canned questions. Give this area some thought before you begin. What are some possible answers you will receive? Think about every possible scenario surrounding the accident. Knowing what you do about the case, what would you like the claimant to say about a given area of the case?

Once you begin the statement, you need to be able to adjust your plan and ask questions that you do not have written down. There are two important rules for good questioning:

Both these rules are frequently broken in recorded statements and often result in missed opportunities. Many times facts are assumed which are not stated by the interviewee. Do not assume that no previous accident occurred, that notice was given, that a report was filled out, that a claimant did not return to work, or anything else for that matter. Even more important and perhaps more difficult is to pay attention to the answers given. Many times, interviewers are rushed and simply go through the litany of questions without really listening to and thinking about the answer given. This is usually your only opportunity to ask questions of a claimant before he or she has an attorney help fill in the gaps. Recorded statements can be used at a hearing to impeach a claimant who, after consulting with counsel, gives a subsequent, different account of the facts surrounding a claim. Accordingly, the recorded statement can be an important weapon in your defense lawyer's arsenal.