he question often arises whether an injury suffered by an employee while on a “break period” classifies as a compensable injury.
The question often arises whether an injury suffered by an employee while on a “break period” classifies as a compensable injury. Georgia courts have widely held that injuries during personal time are not considered compensable even if they occur during the work day while on the employer’s premises. In Wilkie v. Travelers Insurance Co., 124 Ga. App. 714, 185 S.E. 2d 783 (1971), the Court adopted the ruling in Ocean Acc. & Guarantee Corp. v. Farr, 180 Ga. 266, where an “…employee is free to use the time as he chooses so that it is personal to him, an injury occurring during this time arises out of the individual pursuit and not out of his employment.”
In Wilkie, the employee was injured in a fall while on her way to the restroom on the employer’s premises during a ten minute rest break. Wilkie at 714. The employer had scheduled two ten-minute rest breaks, in which the beginning and end of the breaks were signaled by a buzzer. Id. at 715. The breaks were considered ‘personal time’ and the employees were free to do anything they wanted, including leaving the premises, as long as they were back at work by the end of the break. Id.
The Claimant in Wilkie attempted to argue that while she was free to leave the premises, she could not effectively do so during the allowed ten minute period because her work station was in the center of a ten-acre premise. Id. at 716. The Wilkie Court did not find this factor to be controlling. It also used the rationale inGay v. Aetna Cas. & Sur. Co., 72 Ga. App. 122, 124, which stated: ‘It would make no difference whether the claimant was injured during a rest period of thirty minutes, or during her lunch period of forty-five minutes or during a lunch time and rest period of three hours, if the claimant was injured while on her own time and while not engaged in any way in her employer’s business…’
The employee in Wilkie fell over some boards in the aisle after the buzzer sounded signaling the start of the rest break. Wilkie at 715. Similarly, the employee in the Ocean case was injured by falling while going down a set of steps on the employer’s premises while on his lunch break. Id. at 716. The Wilkie court was further persuaded by the Ocean ruling denying compensability for the employee because “…the injury arose inthe course of employment, but not out of it.” (Emphasis added). As a result, the Wilkie court affirmed the Award denying compensation. Id.
There are, however, some important exceptions to the general rule that an injury is not compensable during ‘personal’ time. The injury will be found compensable if the employee sustains an injury while conducting employer’s business or following job-related instructions during the ‘break.’ American Hardware Mut. Ins. Co. v. Burt, 103 Ga. App. 811 (1961); Mut. Lib Ins. Co. v. Carlan, 104 Ga. App. 170 (1961). In the Carlancase, the employee sustained an injury during a ten minute rest break while going to use a pay telephone on the employer’s premises to call the employer’s personnel department, as they had instructed him to do. Carlan at 170. The employer required the claimant to remain on the premises during these ‘breaks’ and the claimant was also compensated for such rest breaks. Id. The three facts that substantiated to the Court the Claimant was ‘within the course of employment’ was: 1) The claimant was compensated for the ‘break period,’ 2) the claimant was under the control of the employer during the ‘break period,’ in that he could not leave the premises without the express permission of his supervisor, and 3) the claimant was following instructions from his supervisor when he was going to make the telephone call. Id. at 172. As a result, the case was found compensable. Id.
In the American Hardware case, a minor employee was injured while using a motor scooter furnished by the employer on his way home for supper. American Hardware at 812. One of the claimant’s conditions for employment was that he be allowed to come home for a ‘warm supper.’ Id. The employee was a delivery boy for a pharmacy, and the employer agreed and allowed the claimant to use the drugstore’s motor scooter for this purpose since the claimant’s supper hour was at the convenience of the drug store and varied day to day. Id. The Board ultimately held his injury was deemed compensable upon appeal from the claimant. Id.
The Court in American Hardware noted the terms ‘arising out of’ and ‘in the course of’ employment are not the same. Id. at 813. The term ‘arising out of’ refers to when the accident occurs within the period of employment at a place where the employee reasonably may be in the performance of his work. Id. On the other hand, the term ‘in the course of employment’ refers to a causal connection between the conditions under which the work is required to be performed and the resulting injury from the accident. Id. citing Hartford Accident &Indem. Co. v. Cox, 101 Ga. App. 789 (1960). It was further noted that the ‘lunch hour’ cases are determined by specific facts and not necessarily the mere designation of time. Id. at 814; citing Travelers Ins. Co. v. Smith, 91 Ga. App. 305 (1954).
Ultimately, the American Hardware Court was persuaded by the fact the reason the employer dictated the time for the supper hour and furnished the transportation to and from home was because the drug store had the highest volume of trade during that time. American Hardware at 814. While the claimant technically could take a full hour for supper, he did not do so when his services were needed at the store and he was instructed on the night of his accident to come back as soon as he could. Id. at 815. Moreover, the Court also followed the rationale that an inference of an employment relationship would continue during the period the employee is going to and returning from work when the transportation is provided by the employer. Id.; citing Kobe v. Industrial Acc. Commission, 215 P. 2d 736. The Court not only considered whether the transportation was furnished for the purpose of getting the employee promptly to work in the morning and home at night or promptly to and from the premises during a lunch hour period, but also whether the furnishing of the transportation was a benefit to the employer and an incident of the employment contract. Id (emphasis added). The Court found in American Hardware that the transportation provided for the employee served both functions. Id.
Ultimately, the Board found the following factors controlling: an evening meal being made necessary and incidental to the claimant’s employment; the furnished transportation; the controlled time and duration; and the employer retaining the right to have certain duties performed during the trip. Id. at 816. Therefore, the Court found the board acted appropriately in finding the injury arose not only in the course of but also out of the employment. Id.
The compensability of claims made by employees on break periods essentially is determined on a fact by fact basis. The deciding factors that each case ultimately hinges on are how much control did the employer have and whether the employee is performing a task that would provide a benefit to the employer. Since the compensability during break periods is so fact-specific, it could be beneficial for employers to spell out in their handbooks or employment contracts how much freedom they are accorded during their rest periods. It could be the difference between a compensable or non-compensable claim.