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Workers’ Comp Updates

 

BY TRACEE BENZO

The general rule for willful misconduct is that the mere violations of instructions, orders, rules, ordinances, and statutes, and the performing of hazardous acts where danger is obvious, do not, without more, as amatter of law constitute willful misconduct.

 

 

WILLFUL MISCONDUCT

CHANDLER TELECOM, LLC, ET AL V. BURDETTE

(SUP. CT FEBRUARY 2017)

A cell tower technician (“Burdette”) was seriously injured when he fell rappelling from a tower. Chandler Telecom, LLC’s (“Employer”) policy prohibited technicians from using a controlled descent from the tower.

The narrow holding in this case concludes that an intentional violation of an employer’s rule may constitute willful misconduct, but all intentional violations of employer’s rules do not rise to the level of willful misconduct. An intentional violat ion only bars compensation when the facts prove that the act was conducted with the knowledge that it is likely to result in serious injury, or with a w anton and reckless disregard of resulting in injury.1

The Court remanded for further factual findings regarding whether Burdette acted with the requisite knowledge or recklessness. By way of background, Burdette’s supervisor instructed him to climb down the tower several times. Despite the request, Burdette prepared his equipment and began a controlled descent. Burdette fell a great distance from the tower and landed on an “ice bridge.” Burdette was unable to recall anything that occurred immediately before or after the fall, including any conversations with h is supervisor. Burdette’s supervisor testified that the fall was the result of “user error.” rather than equipment malfunction. He also testified that Burdette did not have the necessary equipment for a controlled descent.

The State Board of Workers’ Compensation adopted the administrative law judge’s findings that Burdette was barred from receiving compensation because he engaged in “willful misconduct” pursuant to O.C.G.A.§34-9-17(a).2

Burdette appealed to the superior court, which affirmed the Board’s decision. Burdette then appealed to the Court of Appeals. The Court of Appeals reversed, concluding that Burdette’s actions did not constitute “willful misconduct.”3

The general rule for willful misconduct is that the mere violations of instructions, orders, rules, ordinances, and statutes, and the per-forming of hazardous acts where danger is obvious, do not, without more, as a matter of law constitute willful misconduct. 4

The finder of fact must determine whether an intentional act was done with knowledge that the act was likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences.

ABOUT THE AUTHOR:

Tracee Benzo is the founder of Benzo Law in Atlanta where she specializes in workers’ compensation cases. She currently serves on the Executive Committees of both GTLA and the Georgia Association of Women Attorneys (GABWA) and is also a 2014 graduate of the GTLA LEAD Program. She can be reached at tracee@benzolaw.com.

 

 

 

FOOTNOTES

1 Aetna Life Insurance Co. v. Carroll, 169 Ga. 333, 342 2 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 du ty required by statute. O.C.G.A.§34-9-17(a) 3 Carroll, 169 at 333 4 Burdette, 335 Ga. App. at 191 n.4.