JOHN’S GEORGIA TIP OF THE WEEK: Is a Claimant’s Failure or Refusal to Use Safety Equipment Grounds for Denial?
- O.C.G.A. 34-9-17(a) states “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.”
- A “safety appliance” is defined as any instrumentality provided by the Employer for use by the Employee in operation of a machine, use of which in operation of the machine would reduce danger or hazard to employee from the machine’s operation. Herman v. Aetna Cas. & Sur. Co. (1944).
- But what constitutes a “WILLFUL“ failure or refusal to use a safety appliance??
- Willful is MORE than just the “mere intentional and voluntary failure” to use a safety appliance.
- Georgia courts have held that “mere intentional and voluntary failure to use a proper safety appliance does not necessarily make the act willful. Willfulness contemplated amounts to MORE than a mere act of the will and carries with it the idea of premeditation, obstinacy, and intentional wrongdoing.”
- A claimant’s failure to use “easily accessible” safety appliances can also be “willful.”
- When safety appliance provided by the Employer is (1) located in the proximity to the machine, (2) easily accessible to the employee operating the machine, (3) its location know to the employee, and (4) the employee has received specific instructed not to operate the machine without use of such appliance, operation of the machine without use of the appliance constitutes a willful failure or refusal to use the safety appliance. If the employee is injured by reason of not having used the appliance, the employee is barred from compensation!
Sincerely,
John Fennelly | Atlanta Associate