Georgia Supreme Court Clarifies “Willful Misconduct” Doctrine

Reversing a decision of the state’s Court of Appeals, the Supreme Court of Georgia, in Telecom v. Burdette, 2017 Ga. LEXIS 103 (Feb. 27, 2017), held that while the mere violation of instructions or the mere doing of a hazardous act in which the danger is obvious cannot, standing alone, constitute willful misconduct, if the intentional act was done either with the knowledge that it was likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences, the injured worker could be disqualified from an award of workers’ compensation benefits. Indicating the state’s Board of Workers’ Compensation had not made factual findings regarding the conduct of a cell-phone tower employee who sustained serious injuries when—contrary to express orders from his supervisor—he attempted a “controlled descent” from a tower, rather than merely climb down like his co-workers, the high court remanded the case so that those issues could be considered.

Background

Evidence indicated that prior to the beginning of the shift on Burdette’s date of injury, he and others had been instructed to climb down the towers and not to use controlled descent. A supervisor testified that as Burdette and others finished their shift, he again told Burdette and his co-workers to climb down, but that Burdette indicated he wanted to utilize a controlled descent. The supervisor testified that again told Burdette not to use the controlled descent, but Burdette started his descent by that means anyway. During that descent, Burdette fell and sustained serious injuries. Following the incident, Burdette had no recollection of how and why he had fallen.

The Board of Workers’ Compensation (the “Board”) adopted an administrative law judge’s findings and concluded that Burdette was barred from receiving compensation because he engaged in “willful misconduct” within the meaning of OCGA § 34–9–17 (a). The superior court affirmed the Board’s decision and Burdette appealed to the Court of Appeals. The Court of Appeals reversed, concluding that his actions did not constitute “willful misconduct” as defined in Aetna Life Insurance Co. v. Carroll, 169 Ga. 333, 150 SE 208 (1929) (“Carroll”). Citing Carroll, the Court of Appeals indicated Burdette’s violation was not of a “quasi criminal nature involving the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” [Burdette, 335 Ga. App. at 195].

Willful Misconduct Not Defined in the Statute

The Supreme Court observed that the term “willful misconduct” was not defined by the statute. The Court added that “nearly a quarter century ago, the Court of Appeals’ understanding of Carroll went astray” [2017 Ga. LEXIS 103]. According to the high court, under Carroll, the mere violation of instructions or the mere doing of a hazardous act in which the danger is obvious cannot, standing alone, constitute willful misconduct. The Court stressed, however, that this did not mean that the intentional violation of rules could not ever constitute willful misconduct when the violation entailed knowingly doing a hazardous act in which the danger was obvious. The Court said that in such cases, the finder of fact must determine whether such an intentional act was done either with the knowledge that it was likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences.

Remand Necessary

Here, the Board made no findings on this point. The case was reversed and remanded with instructions to the Board to consider the issue and make appropriate factual findings.