A willful misconduct defense has always been notoriously difficult for an employer to assert, but now after a recent Court of Appeals decision, it is virtually impossible. O.C.G.A. § 34-9-17 states that “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 injure another, or for the willful failure or refusal to use a safety appliance or perform a duty required by statute.” Willful misconduct is an affirmative defense; it must be shown that the willful misconduct of the employee is the proximate cause of the injury by a preponderance of the evidence. Commc’ns, Inc. v. Cannon, 174 Ga. App. 820, 820 (331 S.E.2d 112) (1985).
A willful misconduct defense has always been notoriously difficult for an employer to assert, but now after a recent Court of Appeals decision, it is virtually impossible. O.C.G.A. § 34-9-17 states that “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 injure another, or for the willful failure or refusal to use a safety appliance or perform a duty required by statute.” Willful misconduct is an affirmative defense; it must be shown that the willful misconduct of the employee is the proximate cause of the injury by a preponderance of the evidence. Commc’ns, Inc. v. Cannon, 174 Ga. App. 820, 820 (331 S.E.2d 112) (1985).
Because the statute does not provide an exact definition, “willful misconduct” has been defined primarily through case law. In a seminal case, the Georgia Supreme Court provided guidance as to what it considers willful misconduct stating that:
Mere violation of rules, when not willful or intentional, is not willful misconduct, within the meaning of the laws upon the subject of workmen’s compensation. There must be something more than thoughtlessness, heedlessness, or inadvertence in violating a rule or order of the employer, to constitute willful misconduct. There must be a willful breach of the rule or order. The mere violation of rules, when not willful or intentional, is not ‘willful misconduct.’ If the workman is acting within the scope of his employment, mere disregard of a rule or order does not become such misconduct, unless the disobedience be in fact willful or deliberate, and not a mere thoughtless act, done on the spur of the moment. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 342 (1) (150 SE 208) (1929).
The Court further specified that willful misconduct “involves conduct of a quasi-criminal nature, the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” See Burdette v. Chandler Telecom, 335 Ga. App. 190, 779 S.E.2d 75 (2015) and Aetna Life Ins. Co., 169 Ga. 333 (1929). Recently, the Georgia Court of Appeals issued an opinion which makes it even more difficult to assert a willful misconduct defense.
Burdette Decision
In the case of Burdette v. Chandler Telecom, the claimant Burdette was injured when he fell while descending from the top of a cell tower. Evidence presented at the hearing demonstrated that Burdette had been specifically directed by his supervisor to descend from the tower in a certain manner, and he was not allowed to use a method called “controlled descent,” which is similar to rappelling. Towards the end of the workday when his accident occurred, Burdette announced that he wanted to descend using the prohibited “controlled descent” method. Another worker, who was the on-site lead, testified that immediately before his descent, he told Burdette to climb down because they did not have a safety rope and that Burdette might lose his job for failure to follow policy. The on-site lead then repeated this warning several more times. Despite the admonition, Burdette began a controlled descent and ultimately fell, suffering a serious injury to his ankle, leg, and hip. Testimony was put forward to show that the fall was the fault of Burdette rather than an equipment malfunction.
After the accident, Burdette initiated a claim related to the injuries from his fall. A hearing was held, and an ALJ denied Burdette’s claim on the basis that Burdette had engaged in “willful misconduct” by disregarding the supervisor’s instructions to climb down the tower. Burdette’s appeal was confirmed by the Board, and then affirmed in the Superior Court by operation of law. Thereafter, the Georgia Court of Appeals granted Burdette’s discretionary appeal.
The Court of Appeals reversed the lower court’s decision and held that the ALJ and Board had erred in finding Burdette’s workers’ compensation claim was barred due to willful misconduct on the part of Burdette.
The Court of Appeals looked at past cases to support its rationale, primarily relying on Supreme Court decisions and the Court of Appeals ruling in Wilibro v. Mossman, 207 Ga. App. 387 (427 SE2d 857) (1993). The Court of Appeals found that there was no meaningful distinction between Burdette’s claim and their decision in Wilibro.
In Wilibro, the claimant was a store clerk who fell from a shelf and injured her head and back. The Evidence was presented at the hearing to demonstrate that the clerk had been instructed not to restock while standing on shelves, and that she was reminded by a co-worker not to stand on the shelves. The Court of Appeals found that the claimant had not engaged in willful misconduct, noting that “the conduct was at most a violation of instructions and/or the doing of a hazardous act in which the danger was obvious, but was not conduct that was criminal or quasi-criminal in nature.” Id. at 390.
Board Awards and Takeaways
The lessons of Wilibro and Burdette are that in order for an employer to assert a willful misconduct defense, employers must show something more than even intentional risky activity. The Court found in Burdette that even in a circumstance where there are repeated warnings of a clearly apparent danger, a claimant’s deliberate actions are not necessarily willful conduct.
Burdette leaves only a very narrow avenue for presenting a successful willful misconduct defense that does not involve conduct that could be characterized as quasi-criminal, self-inflicted, or as a result from fighting. The Court of Appeals acknowledged that Burdette engaged in an obviously dangerous act because “he lacked some of the necessary equipment for controlled descent and failed to use the ‘tag line’ or ‘rope’ that was thick enough to support him.” Burdette 335 Ga. App. 190 at 195 (2015). However, the Court focused on the fact that the method of descent the Claimant used was a common method used on other cell towers and the method was also for certain rescue purposes. The Court noted that an Employer “would not require its technicians to train in and use controlled descent to rescue someone if serious injury was the likely or probable result of such conduct.” Id. at 196. This rational suggests that the converse is true: namely that an employer may demonstrate willful misconduct if injury is a “likely or probable” result of such conduct. The difficulty in presenting affirmative evidence with this much strength is a daunting task and it is unclear what evidence the Court would view as actually meeting this standard.
Conclusion
The Burdette decision has been appealed to the Georgia Supreme Court. The Burdette opinion makes clear that the Court of Appeals felt bound by stare decisis to follow the Aetna decision referenced above, despite the fact that Aetna was in fact interpreting a prior version of O.C.G.A. § 34-9-17(a). This provides some hope that the Georgia Supreme Court will reverse the decision and set a new precedent which provides some additional protection for Employers.