Georgia Supreme Court Clarifies “Willful Misconduct” Doctrine

Reversing a decision of the state’s Court of Appeals, the Supreme Court of Georgia, in Telecom v. Burdette, 2017 Ga. LEXIS 103 (Feb. 27, 2017), held that while the mere violation of instructions or the mere doing of a hazardous act in which the danger is obvious cannot, standing alone, constitute willful misconduct, if the intentional act was done either with the knowledge that it was likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences, the injured worker could be disqualified from an award of workers’ compensation benefits. Indicating the state’s Board of Workers’ Compensation had not made factual findings regarding the conduct of a cell-phone tower employee who sustained serious injuries when—contrary to express orders from his supervisor—he attempted a “controlled descent” from a tower, rather than merely climb down like his co-workers, the high court remanded the case so that those issues could be considered.

Background

Evidence indicated that prior to the beginning of the shift on Burdette’s date of injury, he and others had been instructed to climb down the towers and not to use controlled descent. A supervisor testified that as Burdette and others finished their shift, he again told Burdette and his co-workers to climb down, but that Burdette indicated he wanted to utilize a controlled descent. The supervisor testified that again told Burdette not to use the controlled descent, but Burdette started his descent by that means anyway. During that descent, Burdette fell and sustained serious injuries. Following the incident, Burdette had no recollection of how and why he had fallen.

The Board of Workers’ Compensation (the “Board”) adopted an administrative law judge’s findings and concluded that Burdette was barred from receiving compensation because he engaged in “willful misconduct” within the meaning of OCGA § 34–9–17 (a). The superior court affirmed the Board’s decision and Burdette appealed to the Court of Appeals. The Court of Appeals reversed, concluding that his actions did not constitute “willful misconduct” as defined in Aetna Life Insurance Co. v. Carroll, 169 Ga. 333, 150 SE 208 (1929) (“Carroll”). Citing Carroll, the Court of Appeals indicated Burdette’s violation was not of a “quasi criminal nature involving 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.” [Burdette, 335 Ga. App. at 195].

Willful Misconduct Not Defined in the Statute

The Supreme Court observed that the term “willful misconduct” was not defined by the statute. The Court added that “nearly a quarter century ago, the Court of Appeals’ understanding of Carroll went astray” [2017 Ga. LEXIS 103]. According to the high court, under Carroll, the mere violation of instructions or the mere doing of a hazardous act in which the danger is obvious cannot, standing alone, constitute willful misconduct. The Court stressed, however, that this did not mean that the intentional violation of rules could not ever constitute willful misconduct when the violation entailed knowingly doing a hazardous act in which the danger was obvious. The Court said that in such cases, the finder of fact must determine whether such an intentional act was done either with the knowledge that it was likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences.

Remand Necessary

Here, the Board made no findings on this point. The case was reversed and remanded with instructions to the Board to consider the issue and make appropriate factual findings.

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3 Responses to Georgia Supreme Court Clarifies “Willful Misconduct” Doctrine

  1. MV says:

    Am I missing something here? The background to this indicates that the employee was instructed by a superior that he was not to utilize the controlled descent, including twice in the minutes leading up to the event. I would think that ignoring a supervisor and acting in a dangerous manner despite direct instructions not to do so would be considered sufficient insubordination to justify termination of the employee(I know that that may be extreme, but failure to take at least some form of corrective action would be negligent on the part of the employer). At what point do we say that the employee just did what he wanted and now has to live with the consequences.

    • Thanks for the comment. As you indicate, there are several intertwined issues “at work” here (pun intended). I can certainly see that refusal to descend in a manner indicated by his supervisor could easily have been considered insubordinate and would, therefore, in many cases have justified a termination of the employment. That a worker does something that could result in termination does not, however, mean that an injury sustained while doing the action falls outside the course and scope of the employment. For example, if a trucking supervisor told his or her drivers to obey all traffic laws, where a driver disregarded that instruction and drove, say 60 mph in a 55 mph zone, he or she could be terminated. If, however, an accident occurred while the driver was doing 60, that fact, in and of itself, would generally not defeat a workers’ compensation claim. If, on the other hand, the driver were hurt in a wreck while driving 90 mph, that might well be considered the sort of willful misconduct that would bar the claim. In this Georgia case involving the cell-phone worker, the problem with the Board’s decision was that it did not make any factual findings as to just how reckless the activity was. So, the Supreme Court reversed and remanded for such findings.

      Your question is an interesting one. If I have some time today or tomorrow, I might go into this in greater detail in the form of a new post. Take care!

      • MV says:

        I get it and can appreciate your example. However, as it relates to this case, if the supervisor was in the car with the trucker and was telling him to slow down repeatedly, but the driver continued to speed up, wouldn’t that factor into the decision. Descending a building from the outside is inherently risky. Rappelling is also enjoyable when done correctly. Practicing rappelling on the job when instructed not to just appears to be an activity done for personal enjoyment.

        I look forward to your next post expanding the issue.

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