Tuesday, February 26, 2019

CASELAW UPDATE - Scheduled Rest Break and Reasonable Ingress & Egress

It often seems like the Courts speak through an inexpert interpreter. Part of the problem is that we look for the result of the case and not to how the Court got to that result. The other problem comes from the attempt of the Court to reconcile different lines of authority that have developed over time, especially when that authority involves other principles of law. This morning, February 26, 2019, the Georgia Court of Appeals issued a decision in Daniel v. Bremen-Bowdon Investment Co.,. This case, and the case upon which it relies may prove to have far-reaching effects on Georgia Worker’s Compensation. Ms. Daniel was employed as a seamstress and was taking a scheduled lunchbreak. During that break she was permitted to leave the premises and do whatever she pleased with her time. She intended to go home for lunch but on the way to the parking lot, was injured. The problem for her was that to get from her work station to the parking lot, she had to cross a public street and traverse a sidewalk. In order for an injury to be compensable, it must 1) Occur in the Course of the Employment and 2) Arise out of that employment. For an injury to be IN THE COURSE of the employment, the employee must be WHERE they are supposed to be WHEN they are supposed to be there. So that one looks to the TIME and PLACE that an injury happens. This usually means that an employee injured while going to and from work is not IN THE COURSE of his employment. For an injury to ARISE OUT OF the employment, the Employee must be doing something in furtherance of the employer’s business. This is a causal connection between the employment and the injury. An injured worker must prove both IN THE COURSE OF and ARISING OUT OF in order for her injury to be compensable. Exceptions/clarifications to these rules have developed over time. This is where the different lines of authority problem comes into play. The Scheduled Rest Break Defense asserted by the Employer to the Compensability of an injury is meant to recognize that the Employer does not have control over the Employee during the scheduled break and so injuries occurring during such a scheduled break are not compensable. However, historically, the employee’s injury might still be compensable if the injury occurred during a “reasonable time for ingress and egress” to the employment premises. That changed in November 2018, when the full court of the Georgia Court of Appeals decided Frett v. State Farm Employee Workers’ Compensation. Ms. Frett was also on a scheduled break but was injured while in an employee break room on the employer’s premises when she was injured. That Court declined to graft onto the “Scheduled Rest Break Exception” the “Ingress and Egress” Doctrine. In other words, while the Scheduled Rest Break would have meant the injury was NOT compensable, the Ingress and Egress Doctrine would have meant that the case WAS compensable. The Frett Court declined to apply the exception to the exception as it felt that they lacked the authority to do so. Ms. Frett’s injury was deemed not to have arisen out of her employment. “In our view, any decision to apply the ingress and egress rule to the scheduled break exception should be made by our Supreme Court, particularly because the Supreme Court has never expressed its view on the ingress and egress rule generally.” So, while ruling against Ms. Frett, the Court invited the Supreme Court to take a look. That brings us back to Daniels v. Bremen-Bowdon. The Daniels court noted the Court’s disapproval of the previous authority in Frett v. State Farm and decided that the Ingress and Egress Rule does not apply to the Scheduled Rest Break scenario. Judge Goss, who joined the Majority opinion in Frett, wrote the opinion in Daniels and was joined by Judge Brown who did not participate in Frett. Given the rules of the Court of Appeals, the Daniels decision is known as “physical precedent” (binding fo r this case) but is not “Binding precedent” (good authority on which future litigants must rely). All of this is a confusing way of saying that changes may be afoot. First, in both Frett and Daniels the ALJ initially found the claims to be compensable. In both cases, the Appellate Division of the SBWC found the cases to be NOT compensable in both cases on the interplay between the scheduled rest break and the ingress and egress doctrine. The Court of Appeals, accepting the factual determinations made by the SBWC looked to potential legal error in the refusal of the SBWC to apply the Ingress and Egress rule at a time when the Employee was free to do whatever the employee wanted on a scheduled break. The Court of Appeals, generally bound by the “any evidence rule” is accepting the SBWC decisions to the extent that they do not clearly contradict established caselaw. Neither the Georgia Supreme Court nor the Georgia General Assembly have made their views known. Even Judge Yvette Miller, formerly an ALJ for the SBWC, is asking for the Supreme Court to step in. She wrote, in her dissenting opinion in Frett : “But I certainly agree with the majority that the conflicts between the two lines of cases cannot continue, particularly because injuries implicating both the scheduled break rule and the ingress/egress rule arise far too often. And as a former director and appellate judge of the Board, I am acutely aware of the need for employers and employees—as well as the Workers' Compensation bar—to have clear direction in the law. “ As this decision shakes out and the full contours of the developing authority become known, we will keep you updated.

"Skedsvold and White
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