WELL THAT WAS STUPID…but is it compensable?

There’s an old adage that holds “The only difference between being bold and foolish is the outcome.” If you follow us on Twitter, you have seen examples of this in our continuing series called THE COMP CHRONICLES. If you succeed in your rash actions, then it was a bold move and you get recognition for it. If you fail, you also get recognition – along with possible YouTube infamy – but you may also get injured. If that injury happens at work, is it compensable? As with many answers offered by lawyers, the answer is “it depends.” The answer: the compensability of an injury from patently stupid conduct actually depends a great deal more on the Employer than it does on the Employee. In this regard, a solid written policy is the first place to start so that when you encounter the situation of a bold move gone foolish there is no question that the unsafe actions of an employee are not the acceptable norm. Georgia Law is less clear on this than you might think. The reason is this: If an employee is WHERE he was supposed to be WHEN he is supposed to be there, then an injury would be considered “in the course of his employment.” But the injury must also “arise out of” the Employment. In simple terms that just means that the Employee was doing WHAT he was supposed to be doing when the injury happened. If you read the words carefully, you will notice that there is no mention of negligence, gross negligence or glaring and spectacular stupidity. In fact, negligence is generally not a defense to an injury that occurs in the course of and arises out of the employment. An Employer can only hope to escape responsibility for potential Darwin Award nominees if the Employer can demonstrate “Willful Misconduct.” Georgia’s willful misconduct statute is found at The Official Code of Georgia Annotated (O.C.G.A.) §34-9-17. While that statute includes drug and alcohol impairment, our focus here is conduct not touched by impairment issues but instead conduct that is just plain stupid – or subsection “a” of that statute. It provides: “No compensation shall be allowed for an injury or death due to the employee’s willful misconduct, including intentionally self-inflicted injury, or growing out of his or her attempt to injury another, or for the willful failure to use a safety appliance or perform a duty required by statute.” Subsection “c” of that code section makes clear that “the burden of proof shall be generally upon the party who claims an exemption or forfeiture under this code section.” In short, if you are claiming that the injury should be barred because of willful misconduct, the injury is likely compensable unless you as the Employer can convince the Court that the circumstances are so egregious that the injury should never be covered. SELF INFLICTED INJURY This particular version of Willful Misconduct should not be thought of as an introduction of basic principles of negligence into worker’s compensation. In other words if your defense is premised only on the thought of “well what did you think was going to happen” then it’s probably not willful misconduct…at least not of the self-inflicted variety. No, a “self-inflicted” injury seems to assume a higher degree of intentionality on the part of the injured worker. The movie BRUCE ALMIGHTY includes a scene in which Jim Carey’s character kneels down in the middle of the interstate and is met by an oncoming truck. THAT is the kind of thing that we might be looking for to invoke a self-inflicted injury defense. The response from the injured worker will be to show that there was no intent, that he was not thinking, or that what he was thinking was not about injury but instead about something else, ANYTHING else. In short the employee must assert that what appears as intentional was just an accident. The proof as to what happened will lie in witnesses, workplace video and even statements from the injured employee himself. That type of information, however, tends to disappear quickly so prompt investigation is essential. ATTEMPT TO INJURE ANOTHER An attempt to injure another is precisely the type of injury that should not be covered. After all, how can the injury “arise out of the employment” when the injury had nothing to do with work and everything to do with animus towards the other person? Here we must take care to separate the person attempting to injure another with the victim of that intention. The victim of that injury may still be covered if the victim had nothing to do with the event, such as horseplay or a personal feud in which the victim was a participant. In this context, the defense refers to the person making the attempt on another. Think of it as Karma. One guy tries to injure someone else and Karma bites him in the rear with an injury. Why should that be compensable? The simple answer is that it should not be but it is up to you to prove it. Consider this example: two workers in a kitchen are arguing and one punches the other. First thing to ask is who was the aggressor and who was hurt. The injured aggressor is not entitled to benefits. But, if the injured party was not the aggressor, you must ascertain what the argument was about. If the reason for the fight had to do with the job (in our example the food, the service) then the victim would be entitled to benefits. If, however, the argument was over some that both employees were dating, well then this is nothing but an on-the-clock bar fight and there is no reason for you to pay for it. WILLFUL FAILURE TO USE A SAFETY DEVICE Other than intoxication by drugs or alcohol, this is the most frequent brand of willful misconduct that many of us will encounter. You might be thinking “why would anyone avoid using a safety device?” Well the reasons are numerous but include: it is easier not to use the safety device, it is quicker not to use it, the employee did not understand how to use the safety device, or the employee thought he knew better. This last one was the subject of a serious injury to one Adrian Burdette. Mr. Burdette worked for Chandler Telecom as a cell phone tower technician. At heights that many of us would consider dizzying, Mr. Burdette had to climb stairs carrying tools, perform his work and descend those stairs at the completion of his job. Mr. Burdette wanted to avoid the long climb down and decided to use “controlled descent”, a process similar to rappelling but slower in the descent. The problem was that his supervisor SPECIFICALLY told him not to use “controlled descent” but to climb down the stairs. He even threatened Mr. Burdette with possible loss of his job. Well, the reason we know his name is that an injury occurred. The Worker’s Compensation Board denied the claim and the appeals started. The Georgia Court of Appeals found reason not to call this willful misconduct by reading additional requirements into the willful misconduct burden . That decision was reversed by the Georgia Supreme Court and the case was remanded to the State Board. The likely result was that this obstinate choice will prove to be Mr. Burdette’s “downfall.” Other examples of failure to use a safety device include bypassing machine guarding, failure to wear steel-toed safety boots, or failure to wear slip-resistant shoes. The list is not exhaustive but as with the Burdette claim, the utility of the defense will in large part be governed by the employer’s track record of enforcing or more importantly NOT enforcing compliance. Consider for example of the bold/foolish move worked and our intrepid but careless employee was not injured. If this employee was witnessed in his unsafe act and nothing was done by way of admonishment, then even the best written policy was ignored. The implications are significant as the next unsafe act may result in injury and the prior unpunished and unsafe conduct is held as an example that safety is not a priority. SO, IS STUPIDITY COMPENSABLE? We are back to the initial question and the answer remains the same: “it depends.” Remember, with this type of defense, you are generally dealing with an otherwise compensable injury and the burden of proof is on the Employer to show why it should not be treated as compensable. There are some people you look at and wonder “who ties your shoes for you?” Those people can get injured, do get injured and sometimes those injuries happen because they did something REALLY stupid. Your primary defense to this is in the personnel office at the time of hire and generally not after an injury happens. After that, your written policies and safety practices should demonstrate that unsafe conduct is never to be tolerated. If, however, you can show willful misconduct as we have discussed MAYBE you can escape liability.


"Skedsvold and White
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