"Intoxication, Fights and Deviations in Georgia Workers’ Comp Claims"

Daily Report

In the December 14, 2022 issue of the Daily Report, Martine Cumbermack and Alexis Herring explored willful misconduct defenses in Georgia related to injuries that may have been caused by employee intoxication or fighting, as well as defenses when an injury stems from an employee deviating from the scope of their job responsibilities.

“The Georgia Workers’ Compensation Act provides defenses for an employer when an injured worker engages in misconduct, the conduct arises out of unlawful behavior or is, in fact, outside the course and scope of employment,” Cumbermack and Herring explained. “O.C.G.A. § 34-9-17 specifically provides, ‘no compensation shall be allowed for an injury or death due to the employee’s willful misconduct, including intentionally self-inflicted injury, growing out of their attempt to injure another or the willful failure or refusal to use a safety appliance or perform a duty required by statute.’”

Cumbermack and Herring provided insight for employers asserting the workers’ compensation for intoxication and fighting. Asserting an intoxication defense creates a shifting of burdens from the employer to the employee – wherein the initial burden is on the employer with an exception when the employee tests positive for alcohol or drugs. The burden then shifts to the employee to rebut the presumption that alcohol caused the injury by proving (1) they did not ingest the alcohol or drug, (2) if they did, they were not intoxicated, (3) if they did ingest the alcohol or illicit drug, they were not intoxicated at the time of the accident, (4) the accident was not proximately caused by the intoxication, or (5) if they refused testing, it was justified because the proposed testing was not reliable or scientific under Georgia workers’’ compensation law.

Fighting carries with it different burdens of proof to determine whether a fight arose out of or in the course of employment. The employer carries the burden if asserting an “aggressor defense” (i.e. the claimant was the aggressor), and the employee carries the burden to prove the injury arose out of or in the course of employment.

Separate from the willful misconduct defenses are when an employer denies on the grounds an injury did not arise out of or in the course of employment because the employee suffered the injury while deviating from the scope of employment. While courts have ruled on compensability differently as it relates to varying degrees of deviation, where an employee has deviated from his employment for reasons wholly unrelated to the job, any injury sustained while the deviation persists is not compensable.

“Employers should be proactive on the front end to help set up for the best defense, no matter which one the employer may need to assert,” Cumbermack and Herring said. “Having systems already in place for swift and thorough investigation of accidents, proper implementation of alcohol and drug screens, and securing evidence including written statements of any relevant witnesses will set up an employer for success no matter what defense may be asserted.”

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