Questions about applicability of comp move shooting suit forward

In Georgia, an employer's workers' compensation carrier's payment of funeral expenses for a deceased worker does not prevent the worker's children from suing and contesting the applicability of workers' compensation coverage.

Case name: Dixie Roadbuilders, Inc. et al. v. Sallet et al., No. A12A0884 (Ga. Ct. App. 10/26/12).

Ruling: The Georgia Court of Appeals denied summary judgment to an employer on a wrongful death suit brought by a deceased worker's children and estate, finding a factual question existed as to whether workers' compensation applied.

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What it means: In Georgia, an employer's workers' compensation carrier's payment of funeral expenses for a deceased worker does not prevent the worker's children from suing and contesting the applicability of workers' compensation coverage.

Summary: A loader operator for an asphalt plant left work and drove to a nearby convenience store, which was associated with his employer. A robbery occurred at the store, and he was shot. He died from his injuries. The employer filed a claim with its workers' compensation carrier, and the carrier paid for the operator's funeral expenses. His children were not aware of the carrier's payment for the funeral and did not seek workers' compensation benefits. The children sued the employer. The employer argued that the exclusive remedy provision of workers' compensation precluded the suit. The Georgia Court of Appeals denied summary judgment to the employer, finding that a factual question existed whether workers' compensation applied.

The evidence indicated that the operator often took an afternoon break to get a drink at the store. He did not need permission to do this. He also frequently stopped at the store before or after work. The operator made plans with his daughter for that afternoon. He never left work early without asking, and he did not seek permission to leave early on the day of the incident.

The court explained that there was conflicting evidence whether the operator had left work for the day or was on a break. The court rejected the employer's assertion that the store was analogous to an employer-owned parking lot. The court pointed out that if the worker chose to visit a store that was not affiliated with the employer workers' compensation would not apply.

The court also found a question of fact regarding whether the operator's trip to the store was a deviation from his employment. There was no evidence that he was fulfilling a part of his work duties while at the store. The court found that the operator's break resembled a personal pursuit. The court pointed out that the children's "acceptance" of funeral expenses did not prevent them from contesting the applicability of workers' compensation coverage.

Read more at the WorkersComp Forum homepage.

January 18, 2013

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