Understanding the “Willful” in Georgia’s Willful Misconduct Defense
By: Christina Hines
Under Georgia law, employers and insurers can assert a defense barring a workers’ compensation claim based on an employee’s willful misconduct. However, in determining whether to assert this defense, employers and insurers must understand not only the requirements of this defense but also know this is an affirmative defense, which means the employer and insurer have the burden of proof. 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.” The Georgia Supreme Court most recently held an employee’s intentional defiance of a supervisor’s direct order may also constitute “willful misconduct” if the employee knowingly performed the prohibited act despite obvious danger.1
As a preliminary matter, in cases involving physical fights between employees, the primary considerations concern whether the injured employee was the aggressor and whether the altercation arose out of the employment. Injuries caused by fights at work are generally not compensable if the injured employee was the aggressor and the dispute was of a personal nature. It is also worth noting additional “safety appliance” elements must be met to assert a bar against the employee’s willful failure or refusal to use a safety appliance.2
Although this subsection of the statute is colloquially known in Georgia as the “willful misconduct defense,” employers and insurers often overlook the significance of the Georgia legislature’s inclusion of the term “willful” and the Georgia courts’ interpretation of the meaning of “willful” when analyzing the applicability or viability of this defense. What exactly does “willful” mean? Based on the case law addressing this defense, “willful” means more than negligence, or even gross negligence,3 and “willful misconduct” requires more than inadvertent, unconscious or involuntary violations, but instead the conscious or intentional violations of law or rules.4 Indeed, establishing “willfulness” involves demonstrating an employee’s action is voluntary, deliberate and intentional, with either the knowledge the act was likely to result in serious injury or with the wanton and reckless disregard of its probable consequences.5
In cases involving policy or work rule violations, claims handlers need to establish the employee understood the policy/rule violated. Thus, one should ask whether the employer had a written policy regarding the policy or prohibited action. Are any signs or literature posted in the employee’s work area which clearly prohibit the action? Did the employee confirm their understanding of the policy in writing? Did the employee undergo any training regarding this specific policy? How tenured is the employee? Was the policy only in place “on paper” or actually enforced on a consistent basis? Did the employee receive any warnings for violations of this policy before the accident? How about as a result of the accident? The answers to these questions, among others, will be critical to the viability of this defense, as will any and all evidence gathered to determine the level of pre-meditation required to establish the “willfulness” component.
Once an employer and insurer analyze the “willfulness” component, employers and insurers must next consider whether the employee’s willful misconduct was the proximate cause of the injury. Employers and insurers should first ask if the injury would have occurred but for the employee’s specific misconduct, not simply whether a policy violation occurred at some point leading up to the accident as coincidence is not equivalent to causation. If the circumstances reasonably satisfy the “but for” test, then the next step requires an analysis of the foreseeability of the harm. In this regard, one should investigate the circumstances of the accident by conducting witness interviews and securing any facility or outside video surveillance of the employee’s work area or accident site. Such evidence can help establish the employee’s activities immediately before, during and after the work accident. If the work accident was reported to any external agencies, securing all associated documentation may assist in the analysis of the proximate cause component.
Employers and insurers will also need to remain cognizant of the evidentiary considerations when gathering information and documentation in support of this defense. Specifically, the need to establish the willful misconduct defense with competent and credible evidence. “Competent” means relevant and legally admissible while “credible” means reliable or accurate. Therefore, securing as much evidence as possible from solid sources and considering whether you can actually use this evidence at a hearing will put employers and insurers in the best position to make an educated decision regarding whether to assert a willful misconduct defense.
Finally, it is important to remember time is of the essence when conducting the initial investigation and determining the viability of a willful misconduct defense. The standard deadline to controvert a claim (for any reason) is only 21 days from the date of the employer’s first knowledge of the injury. Although voluntary commencement of income benefits within the 21-day window provides an additional 60 days (total of 81 days) to controvert the claim, after this 81-day deadline, there must be newly discovered evidence, which is an even higher hurdle to cross than the original defense, or a change in condition. Thus, given the relatively short timelines, it is imperative to conduct a detailed investigation as soon as possible after the accident to determine if the employee’s actions are both “willful” and the proximate cause of the accident/injury.
1Chandler Telecom LLC v. Burdette, 300 Ga. 626, 797 S.E.2d 93 (2017).
2Lib. Mut. Ins. Co. v. Perry, 53 Ga. App. 527, 186 S.E. 576 (1936); Herman v. Aetna Cas. & Sur. Co., 71 Ga. App. 464, 31 S.E.2d 100 (1994).
3Beck v. Brower, 101 Ga. App. 227 (1), 113 S.E.2d 220 (1960); Shiplett v. Moran, 58 Ga. App. 854, 200 S.E. 449 (1938).
4Lib. Mut. Ins. Co. v. Perry, 53 Ga. App. 527, 186 S.E. 576 (1936); Aetna Life Ins. Co., v. Carroll, 169 Ga. 333, 150 S.E. (1929).
5Aetna Life Ins. Co., v. Carroll, 169 Ga. 333, 150 S.E. (1929); Chandler Telecom LLC v. Burdette, 300 Ga. 626, 797 S.E.2d 93 (2017).
Attorney Contact Info
Christina Hines
christina.hines@swiftcurrie.com
404.888.6221
