In a decision that will affect all Employers and Insurers throughout the State, the Georgia Supreme Court overturned decades of precedent and pumped new life into the willful misconduct defense to workers’ compensation claims.
The case, Chandler Telecom LLC v. Burdette, 300 Ga. 626 (2017) was handled by Andrew G. Daugherty of Hamilton, Westby, Antonowich & Anderson in Atlanta. The case centered on a cell phone tower worker who disobeyed his supervisor and attempted to rappel down the side of the tower against company policy.
WILLFUL MISCONDUCT STATUTE AND PRIOR CASE LAW
The willful misconduct defense, contained at O.C.G.A. § 34-9-17, provides that “no compensation shall be allowed for an injury or death due to the employee’s willful misconduct”. The statute, originally passed in 1920, did not explicitly define the term “willful misconduct”.
It was not until a 1929 case, Aetna Life Insurance v. Carroll, that the Georgia Supreme Court defined willful misconduct as an action that “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.”
The willful misconduct statute then went decades without the Georgia Supreme Court considering it. During that time, the Georgia Court of Appeals considered the statute a small number of times and eventually issued an opinion, Wilbro v. Mossman that made it explicit that an action was required to be “quasi criminal” in nature in order to qualify as willful misconduct.
The language regarding “quasi behavior” existed only in the case law, not in the statute. The Georgia Legislature did not revisit the statute again until 1996, when it made some slight modifications but declined to put the “quasi criminal” language into the statute itself.
CHANDLER TELECOM, LLC V. BURDETTE
Seith Burdette, employed as a cell phone tower worker by Chandler Telecom, was on a job site in Texas when he was injured. His job required him to climb up the tower, assist his supervisor in installing new components, and then descend the tower. The company provided Mr. Burdette with safety ropes and a harness to use while on the tower, and a ladder was attached to the tower for climbing up and down.
The Employer had a policy of requiring its employees to only climb up and down cell phone towers. Rappelling down the side of a tower was expressly prohibited by the Employer.
Prior to climbing the tower on the date of injury, the Employer had a safety meeting where Mr. Burdette was told that he was not allowed to rappel down the side of the tower and was required to climb down the attached ladder.
After climbing the tower and completing the work, Mr. Burdette was told by his supervisor that it was time for him to climb down. Mr. Burdette repeatedly refused to climb down and insisted on rappelling. The supervisor told Mr. Burdette several times that he was required to climb down and “might not have a job” if he insisted on rappelling. Mr. Burdette was also told that he did not have the type of rope needed to safely rappel down, even if it was permitted.
Mr. Burdette ignored all of these instructions and attempted to rappel down the tower anyway. He fell almost immediately and sustained severe injuries. He filed a workers’ compensation claim for his injuries.
The Employer/Insurer denied compensability of the claim on the grounds that it was caused by Mr. Burdette’s willful misconduct. The Employer/Insurer won at the trial level. That was affirmed by the State Board’s Appellate Division and again by the Superior Court.
The Court of Appeals reversed, however, finding that under Wilbro Mr. Burdette’s actions were not “quasi criminal” and therefore could not be willful misconduct.
The Georgia Supreme Court agreed to hear the case and issued its opinion in February, 2017.
SUPREME COURT DECISION AND NEW TEST FOR WILLFUL MISCONDUCT
The Employer/Insurer argued that the “quasi criminal” standard applied by the Court of Appeals was not found in the willful misconduct statute itself. Instead, the requirement that an injury had to be “quasi criminal” in order to be willful misconduct was invented by a series of court rulings and represented an unconstitutional expansion of the Employer’s burden of proof for willful misconduct cases.
Additionally, the Employer/Insurer argued that the phrase “willful misconduct” is vague and inapplicable to workers’ compensation cases.
The Georgia Supreme Court, in a unanimous decision, agreed with the Employer/Insurer and struck the “quasi criminal” requirement for willful misconduct cases. This decision expressly overruled the decision in Wilbro and the language regarding quasi criminal behavior found in Carroll.
Going forward, in order to determine whether an action qualifies as willful misconduct under the statute, making the injury non-compensable, the test approved by the Georgia Supreme Court is whether the action:
- Is prohibited by the Employer;
- Is done with the knowledge that it is likely to result in serious injury, or
- Is done with a wanton and reckless disregard of its probable consequences.
If an action leading to injury satisfies either of these standards, the injury is barred from being compensable under the Georgia Workers’ Compensation Act. A finding that the action was “quasi criminal” is no longer required in Georgia.
RECOMMENDATIONS AND ANALYSIS
This case represents a huge win for Employers and Insurers in Georgia, as it lowers the standard for asserting the willful misconduct defense in workers’ compensation claims. We at Hamilton, Westby, Antonowich & Anderson are making the following recommendations to our clients when it comes to these issues:
- Willful misconduct will most often arise when an Employee is injured doing something that is prohibited by the Employer (violating safety policies, not wearing protective equipment, etc.).
- Willful misconduct, when it applies, is a 100% bar to benefits – the Claimant is not entitled to indemnity or medical treatment at all.
- Willful misconduct is an affirmative defense, meaning it must be raised right away or it is waived.
- If you ever have a case where willful misconduct might apply, we recommend running the facts by one of our attorneys before accepting compensability. Failure to assert the defense right away might prevent you from denying a claim that is not compensable.