June 04, 2015 BY John Adkisson
Is The Injury That Occurred On Break Compensable? – Injuries On "Regularly Scheduled Breaks"
What happens when an employee is injured while on a break? Injuries that occur during “regularly scheduled breaks” are generally not compensable if the claimant is free to use their time as they desire. Wilkie v. Travelers Ins. Co., 124 Ga. App. 714, 183 S.E.2d 783 (1971). When the general rule applies, the injury is not compensable because it does not arise out of or occur in the course of employment. However, there are several exceptions that can cause an injury that occurs on a break to be found compensable.
The burden in a regularly scheduled break case is first on the claimant to establish that the injury took place on the employer’s premises during the claimant’s scheduled workday. If the claimant is able to establish this, the burden of proof falls on the employer/insurer to establish that the injury occurred during a regularly scheduled break and that the claimant was not subject to the employer’s demands or control during the break. Rampley v. Travelers Ins. Co., 143 Ga. App. 612, 239 S.E.2d 183 (1977). The amount of control exercised by the employer during the break is often the deciding factor in the decision on compensability.
Exceptions to General Rule
The first exception to the general rule occurs if the claimant is performing an activity during the break that isincidental to their employment. Employers Mut. Liab. Ins. Co. v. Carlan, 104 Ga. App. 170, 121 S.E.2d 316 (1961). In Carlan, the employer requested the claimant call the employer’s personnel department during his break regarding his application for a different job assignment. The Court of Appeals found the claimant’s injury compensable because the task was incidental to the claimant’s employment.
The second exception occurs when the claimant is not released completely to a personal pursuit, such as just being given a "break" to go to the bathroom. Edwards v. Liberty Mut. Ins. Co., 130 Ga. App. 23, 202 S.E.2d 208 (1973). In Edwards, the Court of Appeals held that the claimant sustained a compensable injury when she fell going to the bathroom during a non-regularly scheduled break because she was not released to a completely personal pursuit, i.e., she was only allowed to go to the bathroom and then had to return to work.
A third exception is for injuries that occur during periods of reasonable "ingress and egress" from the parking lot following a lunch break. Rockwell v. Lockheed Martin Corp., 248 Ga. App. 73, 545 S.E.2d 121 (2001). The Court of Appeals in Rockwell held that the general rule regarding injuries during breaks does not apply when the claimant is still on the employer's premises during a period of reasonable period of ingress or egress prior to or after a break. This situation is treated the same as ingress and egress cases before and after work. Similarly, accidents en route to the claimant's work station have been found compensable. Travelers Ins. Co. v. Smith, 91 Ga. App. 305, 85 S.E.2d 484 (1954). In Smith, the claimant's injury was found compensable when the accident occurred while he was going back to his work station three or four minutes before the end of the regularly scheduled lunch break.
What is “Regularly Scheduled”?
In addition to proving no control over the claimant, the employer/insurer must also establish that the break was “regularly scheduled.” The case law is arguably conflicting regarding what constitutes a “regularly scheduled break.”
The claimant will argue that a break is not “regularly scheduled” if it does not take place at the same time each day by relying on the Rampley case. In Rampley, the Court of Appeals noted that there was “no conclusive evidence” as to whether or not the break was “scheduled” because the break time was “dictated” by the workload. In addition, the employer presented no evidence to prove that they no longer exercised control over the claimant during the break. Therefore, the Court held that the claimant’s injury arose out of and occurred in the course of employment. While a lot of the Court’s decision appears to be based on the employer’s control during break, the fact that the break was not “regularly scheduled” played a part in the Rampley decision.
On the other hand, in ATC Healthcare Serv. v. Adams, 263 Ga. App. 792, 589 S.E.2d 346 (2003), the Court of Appeals held that the claim was not compensable because the break was “regularly scheduled.” In Adams, the lunch break for the prison nurses could vary as to the exact time depending on material covered prior to lunch. However, the break took place every day “[a]proximately at the same point.” Moreover, the evidence showed that Adams was free to use her lunch break as she pleased, and that ATC exercised no control over her activities. The Court of Appeals noted that the ALJ “concluded that Adams’ lunch break was not regularly scheduled because ‘the orientation scheduled each day …. determine[d] when the lunch break would occur.’” However, the Court found that the “ALJ construed the lunch break rule too narrowly.” The Court also found that the “alterations” in the break schedule did not “render the lunch break ‘unscheduled.’” Therefore, the Court held that the injury occurred during a regularly scheduled break and did not arise out of or occur in the course of employment.
The decision in Adams appears to distinguish the Rampley case by looking at how much the break time varied and why it varied. However, there is no bright line rule given by the Court as to how much variance in break time is acceptable.
Regularly scheduled break cases are very fact specific. It is important to remember that the employer/insurer has the burden of proof when asserting a regularly scheduled break defense. Therefore, it is important to establish by witness testimony at the hearing that the employer did not exercise control over the claimant during the break and that the break was “regularly scheduled.”
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley