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Willful Misconduct: The Horseplay And Assult Exceptions To The Workers' Compensation Act

June 04, 2014 BY Lauren Julian

    Jack and Jill are friendly coworkers who often chat and take breaks together. One day while working together, Jack animatedly tells Jill a story regarding an altercation he witnessed. In the course of the story telling, he demonstrates with a “friendly” shove to Jill’s shoulder. Not recognizing his own strength and catching Jill off-guard, the shove causes Jill to stumble backwards. Unable to regain her balance, Jill falls to the floor, landing on her back. As a result of the accident, Jill sustains a lower back injury. She reports the injury and requests medical attention.

            This all too familiar scenario is a frequent occurrence for any sociable working environment. The unfortunate result goes beyond the wasted resources from the employees deviating from work to include the lost time and medical treatment required to treat the injury. However, situations such as this may not be compensable. In order to fall within the purview of the Workers’ Compensation Act, an occupational injury must be “an injury by accident arising out of and in the course of employment.” O.C.G.A. §34-9-1-(4). One notable exception to the definition of occupational injury is an accident caused by willful misconduct. Injuries caused by willful misconduct are excluded as they fail to satisfy the elements for compensability that the injury arises out of and occurs in the course of the employment. 

            O.C.G.A. §34-9-17 denies compensation for an injury due to an employee’s willful misconduct, including engaging in horse play and willful acts of third persons directed against the claimant is for personal reasons. It is well settled that “where an employee steps aside from his or her employment and engage in horseplay…while continuing their work, and an accidental injury results… the injury is not one arising out of the employment within the meaning of the compensation act.” Knight v. Liberty Mut. Ins. Co., 141 GA. App. 409, 233 S.E.2d 453 (1977); American Mut. Liab. Ins. Co. v. Benford, 77 Ga. App. 93, 47 S.E. 2d 673 (1948).

            Although the determination of whether an employee is engaging in horseplay is made on a case-by-case basis determined by the facts surrounding the accident, certain facts will trigger the exception such as when an injury is sustained by the aggressor or when an injury is caused by an action taken for personal reasons.American Fire and Casualty Co. v. Gay, 104 Ga. App. 840 (1961); Burns Int’l. Sec. Servs. V. Johnson, 284 Ga. App. 289, 643 S.E.2d 800 (2007); Western Waterproofing Co. V. Rogers, 204 Ga. App. 779, 420 S.E.2d 606 (1992).

            In evaluating whether an injury is subject to exclusion from the Act, one must first determine whether the injury arose out of the injured workers’ employment and whether the injury occurred in the course of the employment.  Both conditions must be satisfied for the Workers’ Compensation Act to apply. Hughes v. Hartford Accident Co., 76 Ga. App. 785, 47 S.E. 2d 143 (1948).

            An injury arises out of employment when there is a causal connection between the conditions under which the employee works and the injury which is received. The causative danger must be incidental to the character of the employment and the accident must be one resulting from a risk reasonably incident to the employment, namely when it is connected with what an employee has to do in fulfilling her contract of service.Dawson v. Wal-Mart Stores, Inc., 324 G.A. App. 604, 751 S.E.2d 426 (2013); Hartford Accident Co. v. Zachery, 69 Ga. App. 250, 25 S.E. 2d 135 (1943); Employers Ins. Co. v. Wright, 108 Ga. App. 380, 133 S.E. 2d 39 (1963). A causal connection has been found when an injury was sustained by a security officer after an assault as the position of security officer and for injuries arising after an assault to a retain store employee in the parking lot upon arrival at work in early morning hours, regardless of whether the retail store was located in the vicinity of an area of known criminal activity. Burns Int’l Sec. Servs. Co., 284 Ga. App. 289, 643 S.E.2d 800 (2007);Helton v. Interstate Brands Corp., 155 Ga. App. 607, 271 S.E. 2d 739 (1980); Dawson, 324 G.A. App. 604, 751 S.E.2d 426. Simply put, if the requirements a job carry an inherent risk peculiarly conducive to a likelihood of attack, the injury will be found to have arisen out of the employment. Murphy v. Ara Services, Inc., 164 Ga. App. 859, 298 S.E.2d 528 (1982); Helton, 155 Ga. App. 607, 271 S.E. 2d 739 (1980); Employers Ins. Co., 108 Ga. App. 380, 133 S.E. 2d 39; General Fire, Etc., Co. v. Bellflower, 123 Ga. App. 864, 182 S.E.2d 678 (1971). Alternatively, an injury does not arise out of employment when it cannot be fairly traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. O.C.G.A. 34-9-11(a). In particular sexual assaults, regardless of whether the assailant is a co-worker or supervisor or an unaffiliated person, have been repeatedly found as a hazard to which an employee is equally exposed apart from his or her employment. Murphy, 164 Ga. App. 859, 298 S.E.2d 528; Kennedy v. Pineland State Bank, 211 Ga. App. 375, 439 S.E.2d 106 (1993);Johnson v. Holiday Food Stores, 238 Ga. App. 822, 520 S.E.2d 502 (1999).

            An injury occurs in the course of employment when it occurs within the period of her employment, at the place where she is performing her employment and while she is fulfilling her employment duties or engaged in doing something incidental to the duties.  New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682, 118 S.E. 786 (1923); General Fire, Etc., Co., 123 Ga. App. 864, 182 S.E.2d 678 (1971); Murphy, 164 Ga. App. 859, 298 S.E.2d 528 (1982). In analyzing whether an injury occurred in the course of employment, the place of employment has been extended to include the Employer’s parking lot when an employee is arriving or departing from his or her employment. Dawson, 324 G.A. App. 604, 751 S.E.2d 426 (2013); Helton, 155 Ga. App. 607, 271 S.E. 2d 739 (1980); Macy’s South v. Clark, 215 Ga. App. 661, 425 S.E. 2d 530 (1994). 

            In performing the above two-prong analysis to determine whether an injury will fall within the purview of the Workers’ Compensation Act, one must carefully scrutinize the facts of the claim. In particular, the type of employment, job duties and any inherent risks involved, the location and timing of the injury, whether the employee was engaged in his or her employment duties at the time, and whether the injury was caused by personal reasons must be analyzed. Only after careful consideration of the facts and circumstances of each claim can a determination be made.

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. 

Editorial Board:

H. Michael Bagley