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Fights, Drugs and Alcohol – By: Chance Cuellar – Atlanta, GA

If there’s one thing that is synonymous with the holidays besides friends, family, and gifts, I would say it’s having a good time! Some people even choose to have their good time on the clock. However, during this time of joy, not everyone is so joyful and can bring that joyless attitude to work, which can lead to an altercation or two. This article will explore two willful misconduct defenses in Georgia related to work injuries: employee’s intoxication and fighting. It will also touch on holiday parties.

Drugs and Alcohol

Just as any other willful misconduct defense, a defense that the employee’s intoxication proximately caused the accident and injury, the employer bears the burden. However, under O.C.G.A. § 34-9-17(b), there is a shifting of burdens between employer and employee when there are positive laboratory test results within a certain number of hours after the accident’s occurrence. Specifically, O.C.G.A. § 34-9-17(b) provides where testing has been performed demonstrating an employee has 0.08 grams of alcohol or greater in his blood within three hours of the time of the alleged accident, or where an employee has any amount of marijuana or controlled substance in his blood within eight hours of the alleged accident, or when the employee unjustifiably refuses to submit to a reliable, scientific test, there will be a rebuttable presumption the accident and injury or death were caused by the consumption of alcohol or by the ingestion of marijuana or the controlled substance. Meaning, the burden now shifts to the employee to rebut his intoxication caused the accident by proving: (1) that he has not in fact ingested alcohol or an illicit drug; (2) that even if he had, he did not do so to the point of intoxication; (3) if he did ingest alcohol or illicit drug, it did not intoxicate him at the time of the work accident; (4) that the accident was not proximately caused by his intoxication; or (5) if there was a refusal of testing, the proposed testing was justifiability refused or the proposed testing was not a reliable, scientific test to be performed in the manner set forth in Code Section O.C.G.A. § 34-9-415. Kissiah & Lay’s Workers’ Compensation Law.

 The burden of proof is solely on the claimant to show that the use of alcohol or illicit drugs was not the cause of his injury. It is important to remember even with a valid positive laboratory test or a refusal, it is good practice for the employer to assume the employee may be able to rebut the presumption

Fights

FIGHT!!! Two employees get into a fight. Is it compensable? Violence in the workplace has become the second most likely cause of work accidents (exceeded only by motor vehicle accidents). Many Georgia workers’ compensation claims involve determination as to whether an injury from such workplace violence is in fact compensable in any given situation. Determining whether a fight arose out of or in the course of employment can be difficult. In Georgia, the burden of proof is on the employer if the employer is alleging the aggressor defense; whereas, the burden of proof would be on the employee to prove the injury arose out of or in the course of employment. Even if an employee’s assault injuries might otherwise be said to be the product of an accident arising out of and in the course of his employment, if the employee’s injuries stem from his attempt to injure someone else, the injuries are not compensable. As such, an employee’s injuries sustained while fighting with a co-worker are not compensable when the employee is the aggressor. The aggressor in an altercation is not necessarily the individual who struck the first blow. Rather, the utterance of “fighting words” may make an employee the aggressor even though he did not throw the first punch.

What if two employees get into a fight during work for reasons unrelated to employment? An injury caused by the intentional act of a third person directed at employee for reasons personal to the employee is not an injury that arises out of and in the course of employment. City of Atlanta v. Shaw, 179 Ga. App. 148, 149, 345 S.E.2d 642, 642-43 (1986). The assault while at work must stem from the employee’s work duties. State v. Purmort, 143 Ga. App. 269 (1977)

Holiday Parties

What about those injuries that occur at the company holiday party? Recreational or social activities are within the course or employment if (1) they occur on work premises during a lunch or recreation period as a regular incident of employment, or (2) employee participation is required either expressly or by implication, or (3) the employer derives a substantial benefit beyond the improvement in employee and health moral that is common to all kinds of recreational or social activities. Pizza Hut of Am., Inc.. v. Hood, 198 Ga. App. 112, 400 S.E.2d 657 (1990) So, yes, an injury at a holiday party can be subject to the Georgia Workers’ Compensation Act, but before it can be compensable, one of the above factors must be met.

Overall, these willful misconduct defense related to intoxication, fights, and holiday parties can protect the employers if they are proactive to ensure the defense will be available to them should an accident occur.  Feel free to email me at ccuellar@eraclides.com if you have any additional questions. Stay safe and enjoy the upcoming holidays!

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Remote Work Injuries in Tennessee: Compensable or Nah? – By: Ben Norris – Nashville, TN

In 2019, just before the pandemic, only about 5% of work done by full time-employees in the United States was done from home according to statistics from the Survey of Working Arrangements and Attitudes and Census Household Pulse Survey. Fast forward to 2023 and that number has jumped fivefold to 25%, with many experts expecting remote work to grow even more in the coming years.

With more of Tennessee’s workforce operating remotely than ever before, it is inevitable that employers and carriers will see an increase in workers’ compensation claims filed by employees who were working remotely at the time of their alleged injury. Because remote work is usually done in a setting that is intertwined with the employee’s personal life, like the employee’s home, it can be difficult to determine whether an injury alleged to have occurred while working remotely is compensable under the Tennessee Workers’ Compensation Act. The fact that an injury occurs at a place other than the employer’s premises does not change the basic requirements for compensability; it still must (1) occur in the course and scope of the employment and (2) arise primarily out of the employment

When assessing whether an injury occurred in the course and scope of the employment, the main focus in remote work situations is whether the injury happened:

1. within the period of the employment (during work hours)
2. at a place where the employee reasonably may be
3. while the employee is fulfilling work duties.

            The Tennessee Supreme Court has held that remote employees who sustain injuries during personal breaks—”eating, drinking, smoking, seeking toilet facilities, and seeking fresh air, coolness or warmth”—are still within the course and scope of their employment. However, after listing these examples of “personal breaks” that would be within the course and scope of the employment, the Court cautioned that injuries that occur during “prolonged or planned social visits” would not be within the course and scope of the employment. Consider this hypothetical; a remote employee is injured while exercising in between Zoom calls. Is she in the course and scope of her employment? I would argue she is not. I tend to believe exercise would fall outside the “personal break” activities which are still within the course and scope of employment.

            The second element, that the injury arises primarily out of the employment, is a bit more straightforward. Like with all injuries, the first consideration for whether an injury arises out of the employment is medical causation (i.e. whether the employment contributed more than 50% to the injury). After medical causation, the analysis shifts to whether the employee had an idiopathic injury, which is an injury of “unexplained origin or cause,” or “the result of a condition purely personal to the employee.” Tennessee judicial precedent indicates that employers who allow employees to work from home are essentially allowing the hazards of the employee’s home to become hazards of the employment, meaning an injury resulting from a hazard of the employee’s home would not be “purely personal to the employee” and would, in fact, arise out of the employment. For example, if a remote-working employee has a staircase with unstable railing in their home, and that railing gives way while the employee is walking up the stairs causing the employee to fall from the stairs, the injuries caused by the fall would still arise primarily out of the employment.

            With remote work on the rise, claims professionals and employers with Tennessee claims should expect to see more claims from remote workers who suffer injuries at their home or remote work location. If you ever have a question about compensability in one of these situations, please feel free to email me at BNorris@eraclides.com to get my thoughts on compensability based on the facts of your claim. I monitor Tennessee caselaw closely and will be aware of any new opinions from the Tennessee Workers’ Compensation Appeals Board or Tennessee Supreme Court that impact compensability in remote work situations. 

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Late Reported Claims: Cautions about Claimants and Employers – By: Hunter Trubatch – Miami, FL

A claim being reported late and outside the required timeframe is a useful defense for insurance carriers to wield that comes into play frequently. Not only does this defense completely cut the Claimant off from receiving any benefits, but it can also be used as a powerful negotiation tool. When the facts of a case are murky and there is conflicting testimony about who the claim was reported to, and when the claim was reported to the employer, a denial on this basis may ultimately allow you to push for a more favorable settlement. The applicable part of the statue contained within Florida Statute § 440.185(1) reads:

440.185 Notice of injury or death; reports; penalties for violations. —

(1) An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury. Failure to so advise the employer shall bar a petition under this chapter unless:

(a) The employer or the employer’s agent had actual knowledge of the injury;

(b) The cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment;

(c) The employer did not put its employees on notice of the requirements of this section by posting notice pursuant to s. 440.055; or

(d) Exceptional circumstances, outside the scope of paragraph (a) or paragraph (b) justify such failure.

            As you can see, there is some nuance to how, if, and when a claim is reported. Below are some tips and things to look out for when assessing the validity of this defense not only from the Claimant, but from the Employer as well.

The major factor in determining if a claim was reported timely is whether the Claimant reported any alleged accident/injury to the Employer within the 30-day requirement as stated above. There are few things to be aware of when making this determination and red flags that may indicate the claim was not timely reported. Frist, Claimants are not typically knowledgeable of workers’ compensation law. As such, they usually are not aware of the 30-day notice requirement, unless they are familiar with the system, such as one of our favorite “career type Claimants.” If a Claimant reports an injury that is outside the 30-day window, and then suddenly changes the date of accident to fit within the window, this should raise a red flag that there may be reporting issues. This can come up if the Claimant is originally told his claim is denied due to lack of reporting.

Additionally, you will also see this happen once the Claimant consults with an attorney and is explicitly made aware of the required reporting timeframe. The initial hospital records, if any, typically give the clearest picture of what caused injury to the Claimant. Sometimes, Claimants get emergency treatment for something personal but then start racking up a hefty amount of medical bills. This can cause them to “rethink” where they may have gotten hurt and claim their lingering issues are work related later down the line. Assessing the mechanism of injury reported in a hospital record is a good first step in gaining perspective as to whether the Claimant reported the accident in a timely manner.

Further, taking the Claimant’s deposition is vital in determining if a claim was reported in a timely manner. During the deposition, pointed questions directed to the industrial accident itself and reporting of the incident are asked, such as, who was it reported to, when was it reported, how many times was it reported, and whether the Claimant has any hard evidence of reporting, ie: text messages, emails, or documentation of the alleged incident. Without any solid evidence, assessing the Claimant’s demeanor and credibility is important to better gauge the validity of their story. Lastly, a common theme seen, especially in South Florida, is a sudden accident that occurred months prior, but reported after a Claimant has been terminated. Claimants who have been fired could have a grudge against their Employer and report an accident or injury that occurred prior to the separation of employment. Assessing the circumstances surrounding a Claimants alleged accident is important as a recent termination or reprimand could give insight into why a Claimant is suddenly reporting a workplace accident. When evaluating a claim that was reported within the 30-day notice requirement, it is important to not just look at the date of accident but also the date the Employer stated the accident was reported. Employers are not immune to shady business practices and can be as equally misleading as a Claimant about when an accident was reported.

Just like Claimants, Employers are not immune to providing misleading information about the reporting of a workplace accident. Often, contact with the Employer is one of the first indications that there may be a reporting issue regarding a Claimant’s alleged accident. It is normal for some Employers to be upset or disgruntled about one of their employees filing a lawsuit against them. This can cause clouded judgment when questioned about various aspects of the claim. Sometimes in the heat of the moment, Employers can misrepresent facts when they are not aware of all of the information or simply misremember certain events occurring. One way to combat this is to contact them early, and often. Gathering information about who the Claimant works with, who their supervisor is and finding out who has regular interactions with a Claimant is crucial. Conducting a pre-deposition conference with specific employees or witnesses is important to determine who has the most information and what their testimony might look like. Obtaining as much firsthand information and asking as many questions as possible before a deposition, may also help jog a witness’ memory and lead to an eventual realization that the accident was in fact, reported in a timely manner. This is not all that uncommon as discovery is conducted and more information comes to light.

Determining the credibility of an Employer is just as important as determining the credibility of the Claimant. Their demeanor and attitude about a specific Claimant or during deposition testimony can give you good insight into whether you believe the Judge will find them a credible witness. Flip flopping stories about who, and when, the accident was reported should be a red flag that they may know more information than they are giving off. After all, with it being a common occurrence that no evidence of timely reporting exists, it can often come down to a he said/she said situation between the Claimant and the designated Employer Representative.

Denial of a claim for timely reporting can be a useful tool when trying to get the story straight between Claimant and Employers. Always remember to keep an open mind about what both parties are telling you about the events. Try to keep a keen eye out with respect to the Claimant’s demeanor during an initial interview but also make sure to do the same while talking to the Employer who may initially indicate that the claim was not reported timely. Although a useful tool, denials for lack of reporting are hindered by the nature of the defense. Conducting discovery almost always leads to documents, evidence or testimony that was not foreseen. Any credible evidence that indicates reporting of the claim timely, one way or the other, should be explored thoroughly. Assessing the validity of this defense is a constantly evolving situation that can be unfolded with pointed questions and constant communication with clients. Keeping these things in mind will help prevent everyone involved from getting blindsided by unexpected and unnecessary costs or attorneys fees down the road.