Arising out of employment - "The words ‘arising out of’ mean that there must be some causal connection between the conditions under which the employee worked and the injury which he received." Thornton, 198 Ga. at 792-793, 32 S.E.2d 816.
Arising in the course of employment –An injury arises "in the course of" employment when it "occurs within the period of the employment, at a place where the employee may be in performance of her duties and while she is fulfilling or doing something incidental to those duties." Hennly v. Richardson, 264 Ga. 355, 356 (1), 444 S.E.2d 317 (1994). Injuries occurring "in the course of" employment certainly include injuries sustained when an employee is engaged in the performance of her assigned work, but they also include injuries sustained when the employee is engaged in activities "incidental" to her assigned work. Such incidental activities include, among other things, ingress and egress to the place of work while on the employer's premises. Frett v. State Farm Emp. Workers' Comp., 309 Ga. 44, 844 S.E.2d 749 (Ga. 2020)
The Ingress and Egress Rule – An employee is allowed a reasonable time for egress from the immediate place of work during which she remains in the course of her employment. West Point Pepperell v. McEntire, 150 Ga. App. 728 (1), 258 S.E.2d 530 (1979). The ingress and egress rule was expressly created to cover injuries that are acts preparatory to entering or leaving the employment but not strictly in furtherance of it. General Acc. Fire & Life Assur. Corp. v. Worley, 72 S.E.2d 560, 86 Ga. App. 794 (Ga. App., 1952).
Premises – This includes the entire area devoted to the employer with which the employee is associated. The Ingress/egress exception will apply if the area where the claimant is injured is an area (1) limited (or very nearly so) to the respondent business, even if the business's right to the area is merely a leasehold interest or some other non-exclusive access; or (2) owned, maintained, or controlled by the business, even though the area is heavily traversed by the public without connection to the business. Bonner-Hill v. Southland Waste Sys. of Ga., Inc., 330 Ga. App. 151, 767 S.E.2d 803 (Ga. App. 2014)
Personal comfort doctrine - "Acts of ministration by a servant to himself, such as quenching his thirst [or] relieving his hunger, are incidents to his employment and acts of service therein within the [296 Ga. App. 231] workmen's compensation acts, though they are only indirectly conducive to the purpose of the employment." Harris v. Peach County Bd. of Com'Rs, 674 S.E.2d 36, 296 Ga. App. 225 (Ga. App. 2009)
The heart of every worker’s compensation act, and the source of most litigation in the compensation field, is the coverage formula. Although Workers Compensation is a statutory regime, forty-three states, and the Longshore and Harbor Workers’ Compensation Act have adopted the entire British Compensation Act (1897) formula: injury “arising out of and in the course of employment.” In 1920, Georgia also adopted the British Compensation Act formula in its entirety, as roughly 40 states had already done. As the Georgia Court of Appeals noted in 1923, “volumes have been written in the opinions upon this clause [arising out of employment]” dating all the way back to the Workers’ Compensation Act of England.
O.C.G.A. § 34-9-1 states that the definition of a work injury is an accident arising out of and in the course of employment. These are two distinct prongs that must be satisfied individually. The in the course of prong relates to the time, place and circumstances under which the injury takes place. The arising out of prong deals with causation —whether there is a 'causal connection' between the employment and the injury. One could say that “arising out of” simply means that there is a causal “nexus” between the injury and the circumstances of the employee’s work.
In 1935, the Ocean Acct. & Gaur. Corp. v. Farr case established what would come to be known as the “scheduled break” defense. In these cases, the “arising out of” prong focused solely on the question of whether the employee had “freedom of action” or remained under the employer’s “control”. Pursuant to Farr (1935), if the Employer had released time to the employee to follow his individual pursuits, then it was reasoned that there was no accident arising out of employment. The contours of the “scheduled break” defense were almost entirely developed by the Court of Appeals. These cases often be distinguished based on seemingly arbitrary factual distinctions. For example, an employee returning to the employer’s premises during a scheduled lunch break would be covered under the Act, but an employee who chooses to remain on the premises would have no such coverage. Additionally, whether an employee had the subjective intent to depart the premises would arguably determine the coverage question (because of the ingress and egress rule).
The appellate courts struggled to apply the rule consistently. Arguably, under prior caselaw, an employee was held to have an accident “arising out of” employment while returning from a lunch break, but not while leaving to a lunch break (there was conflicting case law on this point). Under Rockwell v. Lockheed Martin Corp., 248 Ga. App. 73, an employee leaving to lunch was considered to have an accident “arising out of employment” for the purpose of the exclusive remedy. In Aetna Cas. & Sur Co. v. Honea, 71 Ga. App. 569 (1944), a workers’ compensation case, the Court of Appeals also reached the opposite conclusion of Rockwell under similar facts.
On the day of her accident, Frett had begun her regularly scheduled lunch break. All of the parties agreed that she was free to do as she pleased on her break and could leave the office for lunch if she wished. Generally, Frett brought her lunch and would walk to the State Farm employee break room on her floor to prepare her food. On the day of the accident, Frett went to the break room to microwave her lunch. She intended to eat her lunch outside on a bench. As she exited the break room, she slipped and fell on water and suffered an injury. It is undisputed that Frett was still inside the break room when she fell.
The issue, broadly defined, is whether the Claimant’s injury is compensable under O.C.G.A. § 34-9-1(4) of the Workers’ Compensation Act, which requires an injury to “arise out of and in the course of employment.” Narrowly defined, the issue is whether an employee who injures herself while leaving the employer’s premises to eat her lunch during her scheduled lunch time should be denied workers’ compensation benefits. In this case, the litigation at the hearing level focused on the interaction between the “ingress and egress rule” and the “scheduled break defense”. The Administrative law Judge’s award found that the accident arose out of and in the course of employment because of the “ingress and egress” rule.
However, the Appellate Division held that Mrs. Frett’s accident did not arise out of employment due to the claimant being on a “scheduled break”. Although the Rockwell case held that the ingress and egress rule should apply to scheduled breaks, the Board’s Appellate Division declined to apply this precedent to workers’ comp cases on the basis that it was a negligence case (See attached Appellate Award for the Frett case). The Appellate Division decision in Frett left the injured worker in a legal no-mans-land. There was simply no available legal remedy for injuries that occurred while the employee was leaving the premises to eat lunch. This would be true even if the employer negligently dropped a piano on the employee’s head. The Court of Appeals would apply the exclusive remedy tort bar, and the Appellate Division would hold that the accident was not covered by the Workers’ Compensation Act (i.e., did not arise out of employment).
On appeal, the Superior Court affirmed the denial of benefits by the Appellate Division. The Court of Appeals opinion in Frett, 348 Ga. App. 30, (later reversed by the Supreme Court) noted that the case law regarding the intersection of the ingress and egress rule with the scheduled break rule created “anomalous and arbitrary results”. The Court held that these contradictory lines of cases (Honea and Rockwell) should not have been allowed to co-exist. The Court emphasized that workers’ needed clarity about whether they should sue in tort or seek workers’ compensation benefits for lunchtime injuries. Ultimately, the Court "'conclude[d] that the extension of the ingress and egress rule to cover cases in which the employee is injured while leaving and returning to work on a regularly scheduled break was an improper dilution of the Supreme Court's decision in Farr.” But the Court of Appeals’ decision led to its own absurdities. Under Frett, an employee who falls while exiting her employer's premises to go home for the evening would be covered under the Act, but if she was exiting her employer's premises to go home to have lunch, intending to return to work, she would not be covered.
However, the majority and dissenting opinions agreed that the Supreme Court needed to address the question of how the ingress and egress rule and the scheduled break rule should interact. The Supreme Court did decide to hear the issue, and the resulting decision overturned 85 years of caselaw relating to the so-called “scheduled break” defense.
Ultimately the Supreme Court decided to overturn Ocean Acct. & Gaur. Corp. v. Farr. The Court held that an accident on the employer’s premises during a lunch break occurs in the “course of employment.” The Supreme rejected the “scheduled break” defense was poorly reasoned and contrary to O.C.G.A § 34-9-1. In short, a “scheduled break” is not sufficient to suspend the course of employment. An employee is still in the course of employment while attending to personal matters which are incidental to employment (i.e., eating lunch, using the restroom, etc.) When an employee slips on a wet floor at work, it logically follows that her injury was causally connected to the conditions under which she worked, and her injury, therefore, 'arose out of' her employment." Frett v. State Farm Emp. Workers' Comp., 309 Ga. 44, (Ga. 2020) Moreover, the Court explicitly applies the “personal comfort doctrine” to on-premises lunchbreak injuries for the first time.
The court looked at this as an issue of statutory interpretation (O.C.G.A § 34-9-1). In a nutshell, scheduled break defense cases mixed up the two-prong task for “arising out of” and “in the course of” employment. Employer “control” of the employees’ action is a factor that should be more relevant to the “course of employment” question. The Court held that when analyzing the “arising out of” prong of the compensability formula, the focus should be on the issue of causation. To quote the supreme Court, "[…] Farr said nothing at all about causation when it analyzed the 'arising out of' prong, focusing instead on the fact that the worker had 'knocked off' from work and was free to do as he pleased." The problem with the “scheduled lunch-break” defense was that it ignored the seminal “arising out of” question: whether there was a causal connection between the conditions of the work and the resulting injury.
Although the only issue here as “arising out of” employment, The Court decided to go through the entire two-pronged analysis. The Court reiterated that "The Workers’ Compensation Act provides for compensation for injuries that occur 'in the course of' employment and 'arise out of' employment. See O.C.G.A. § 34-9-1 (4)."
A. In the Course of Employment Analysis in Frett
In considering the “course of employment” prong, an employee will be in the course of employment while engaged in the performance of her assigned work, but also when the employee is engaged in activities that are incidental to her assigned work. Factors that are relevant to this analysis may include:
• whether the employee was ingressing or egressing the premises
• whether the employee was attending to routine personal needs
• whether the employee was doing something else incidental to employment
• whether the employee remains on the premises
If the employee is doing something “incidental” to employment, they should remain within the course of employment. The personal comfort doctrine states that an employee who “engages in an act to minister to his personal comfort (whether it is satisfying his hunger, quenching his thirst, relieving himself, or otherwise), ordinarily does not leave the course of his employment.” Here, the Court reasons, “"This activity [eating lunch], being reasonably necessary to sustain her comfort at work, was incidental to her employment and is not beyond the scope of compensability under the Act."
B. Arising out of employment Analysis in Frett
The Supreme Court decided that Frett's accident arose out of employment. Though neither the fact that the claimant was “egressing” or the fact that the employee was on a “scheduled break” were relevant to the court's “arising out of” analysis. The actual “arising out of” analysis is very brief.
It is undisputed that Frett was injured when she slipped and fell on the wet floor of the breakroom on her employer's premises. It logically follows that her injury was causally connected to the conditions under which she worked, and her injury, therefore, 'arose out of' her employment." Frett v. State Farm Emp. Workers' Comp., 844 S.E.2d at 754.
Although this was a very lengthy opinion, the Court completed the “arising out of” analysis in two sentences. However, the reasoning is easy to follow. Under the arising out of prong, an injury arises out of employment if it resulted from an exposure to a risk occasioned by the nature of the employment. The wet floor is the origin of the risk which resulted in Frett’s injury. A wet floor is a danger that is inherent to Frett’s work environment. Therefore, the causal connection between the injury and the work is clearly established.
As a practical point, this analysis should always start by identifying the actual risk or harm that caused the injury. Next, one should ask if the risk is employment related. Under most facts, on-premises lunchtime injuries will arise out of employment. Most injuries are caused by risks “inherent” to the work environment, such as a wet floor, lifting a heavy box, an item falling off a shelf, etc. It will generally be the rule that lunchtime injuries are covered while the claimant remains on his employer’s premises.
The exception may be if a “personal risk” is the cause of an injury during lunchtime. For instance, if the claimant has a truly idiopathic fall. Of course, “personal risk” type cases can still arise out of employment, but it requires a more in-depth analysis and application of one of Georgia’s “risk doctrines”. For example, if the fall is on a stairway or into a machine or against anything except the bare floor, and especially if the fall is from a height, the risk of injury is increased, or is a special danger of the employment. This is the same basic “arising out of employment analysis” that would be performed under any other fact pattern.
Yes, the “scheduled break” defense is no more.
Of course, an employer can still argue that an employee who is injured during a “purely personal mission” has stepped away from his employment, and therefore not eligible to receive workers compensation benefits. However, this is an argument that the employee has left the “course of employment”. For example, in Skinner, 188 Ga. 823, the Claimant took an 18-mile detour (permitted by his employer) to Tybee Island for the personal purpose of eating seafood and seeing the ocean. The "pivotal question" in the case was whether the employee was "acting in the course of his employment" at the time of the accident.
The abolished “scheduled break” defense was incorrectly applied to the “arising out of” employment prong of the coverage question. It is incorrect, according to the Frett Court, to interpret the “arising out of” law as requiring an employee to be acting in furtherance of job duties.
NEW ISSUES FOLLOWING FRETT VS STATE FARM
The Frett case left some open questions about injuries that occur on a scheduled break. The court’s ruling was limited to the factual circumstances of Mrs. Frett’s injury. Please see the footnote below:
Our statements here should not be read to create any bright-line rules. We are not suggesting, for instance, that Frett's injury definitely would not have been compensable if it had occurred in the parking lot outside her employer's premises or if she had been doing something other than preparing lunch. These questions are not before us, and the outcome in each case depends on the particular circumstances involved. Frett v. State Farm Emp. Workers' Comp., 309 Ga. 44, Footnote 7 (Ga. 2020)
In the dicta of the above footnote, the Supreme Court says that it is not creating any “bright line” rules for off-premises lunch breaks. Since the “scheduled break defense” has been abolished, it is somewhat unclear how off-premises lunch breaks should be treated under Georgia law. Arguably, under the personal “comfort doctrine”, all lunch breaks would be universally considered to be in the course of employment. The reasoning is as follows: If eating lunch is incidental to employment, then eating lunch off premises is an activity incidental to employment, and therefore in the scope of employment. However, the states are divided about how to handle off-premises lunchbreak injuries. The majority rule is that an employee with a fixed time and place of work who has left the premises for lunch is outside the course of employment. Of course, there are also numerous exceptions to this rule in the states that follow it.
Following the Frett decision, there is a lack of valid caselaw regarding off-premises lunch breaks. The existing Georgia caselaw on the off-premises lunch breaks is primarily concerned with the “scheduled” vs “unscheduled” break distinction by Farr and its progeny (and overruled by Frett). For instance, in ATC Healthcare Service, Inc. v. Adams, 263 Ga. App. 792, the claimant worked for a staffing agency that provided nurses to hospitals. The claimant was completing a three-day training seminar. During lunch, the claimant and several classmates drove to a cracker barrel, where the claimant slipped and injured herself. The Court of Appeals denied the claimant’s award on the basis that she was on a “scheduled break” and free from her employer’s control. The Court reasoned that the claimant’s accident did not arise out of employment because she was on a scheduled break.
Because the “scheduled break” defense is no longer valid, it raises questions about how to evaluate claims for off-premises lunch-breaks injuries. Frett stands for the proposition that we should apply the coverage formula consistently across fact patterns. Because of the common practice of grouping compensation questions according to fact categories, lunch-time injuries are sometimes discussed as if they were a unique problem. “Actually, when the employee has a definite place and time of work, and the time of work does not include the lunch hour, the trip away from and back to the premises for the purpose of getting lunch is indistinguishable in principle from the trip at the beginning and end of the workday and should be governed by the same rules and exceptions.” Georgia cases related to “coming and going” rule and its exceptions should apply equally to off-premises lunchbreaks. For example, an employee who is paid during the going and coming trip is deemed to be in the course of employment. Continental Cas Co. v Thompson, 130 Ga. App. 270 (employee who was given an extra hour’s pay for travel was found to have compensable injury). An employee who was paid during the time taken out for lunch or coffee may be given the benefit of the same conclusion.
Here are some potential issues to consider if you encounter an off-premises lunchbreak accident:
• Is the worker paid for the time or expense of travel? Indemnity Ins. Co of N Am. V. Bolen, 106 Ga. App. 684.
• Is the employee in the employer’s conveyance?
• Was the employee concurrently performing a service for the employer while on their lunch break?
• Did the employer request that the employee have a “fast” lunch so that they could quickly return to their work?
• Is it a business lunch where co-employees are talking about work or sending emails?
• Is the employee travelling to their “home office” to eat lunch? See West point Pepperell, Inc. v. McEntire, 150 Ga App. 728. This may become a more common fact pattern with the increase in remote working.
These off-premises cases will likely turn on mixed-questions of law and fact. Given that Farr has been overruled, there is an opportunity to argue that more off-premises lunch breaks arise out of and in the course of employment.
Frett v State Farm is an improvement in the case law. It is hard to argue that tort lawsuits are the desired outcome for such clearly work-related injuries. Workers’ comp should be the preferred remedy for workers that are injured on their employers’ premises.
The Georgia Supreme Court could have decided to simply follow the precedent set in the Rockwell case. In that case, the Court of Appeals applied the “ingress and egress” rule to scheduled breaks and held that accidents arise out of and in the course of employment if an employee is egress or ingressing on a “scheduled break”. However, this “solution” would have required that an employee who stays at his desk to eat lunch during the scheduled break would not have a compensable workers’ comp injury. Although we tend to group compensation patterns according to fact pattern, leaving to and from lunch is no different than leaving to and from work at the begging and end of each day. Getting rid of the “scheduled break” defense has provided much needed consistency to the caselaw.
** footnotes have not been from the orignial paper. You may download the original here.
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