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WORKERS COMP INJURY WHILE NOT FOLLOWING EMPLOYER/SUPERVISOR’S INSTRUCTIONS ON SAFETY. INJURY WHILE ENGAGING IN WILLFUL MISCONDUCT.

WORKERS COMP INJURY WHILE NOT FOLLOWING EMPLOYER/SUPERVISOR’S INSTRUCTIONS ON SAFETY.  INJURY WHILE ENGAGING IN WILLFUL MISCONDUCT.

A very interesting case was recently decided by the Court Of Appeals of Georgia regarding a young man named Adrian Burdette who was employed by Chandler Telecom LLC to climb cell towers.  He worked for the company as a cell tower technician.  Burdett was seriously injured while descending a tower.

Basically there are two fundamental ways of getting down a cell tower.  You can first climb down or secondly you can rappel down or what is commonly known in the industry as descend by “controlled-descent” which is essentially a rappel.  Chandler Telecom had a policy in place that their employees were not allowed to descend a tower by a rappel unless someone on the tower needed to be rescued.

An Administrative Law Judge at the Georgia State Board of Workers’ Compensation ruled against Mr. Burdette and found that he engaged in willful misconduct and therefore could not collect workers’ compensation benefits.  On appeal to the full Board of the State Board and then through the Superior Court as another part of the appellate process, Mr. Burdette lost and it was held that he was not entitled to benefits.

Finally the Georgia Court of Appeals reversed all three lower courts and held that the Claimant had not engaged in willful misconduct even though his supervisor told him not to rappel shortly before he started his decent.

This case hinged on a 1929 Georgia Supreme Court case which held that the mere violation of a company rule when not willful or intentional does not constitute willful misconduct within the meaning of the laws upon the subject of the Georgia Workers’ Compensation Act.  There must be something more than thoughtlessness, heedlessness or inadvertence in violating the rule or order of the employer to constitute willful misconduct.  There must be a willful breach of the rule or order.  The mere violation of the rules when not willful or intentional is not willful misconduct.  The mere disregard of a rule or order does not become such misconduct unless the disobedience be in fact willful or deliberate, and not a mere thoughtless act done on the spur of the moment.  The Georgia Court of Appeals compared the present case with the case of Wilboro v. Mossman, 207 Ga. App. 387 (1993) where a store clerk had been told not to get off a ladder and onto upper shelves in order to stock them when the ladder did not reach.  Even though the employee climbed on the shelf itself, her conduct was held not to be willful but just a disregard of an instruction.

This is a very interesting case and provides some insight for future cases on the subject matter. I recommend that you look at Burdette v. Chandler Telecommunications, LLC.  Case No. A15A1423 (dec’d October 30, 2015).

 

 

 

 

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