Ledbetter v

Pine Knoll Nurs- 557 Willful Misconduct Generally (Cont’d) ing Home, 180 Ga. App. 654, 350 S.E.2d 299 (1986). Self-Inflicted Injury Self-inflicted injury due to disturbance caused by work-related injury not ‘‘intentional.’’ — When original work-connected injuries suffered by employee resulted in the employee becoming devoid of normal judgment and dominated by disturbance of mind directly caused by the employee’s injury and its consequences, such as severe pain and despair, self-inflicted injury by employee cannot be considered intentional. Bullington v. Aetna Cas. & Sur. Co., 122 Ga. App. 842, 178 S.E.2d 901 (1970), rev’d on other grounds, 227 Ga. 485, 181 S.E.2d 495 (1971), for comment, see 8 Ga. St. B.J. 107 (1971). ‘‘Willful.’’ — One whose mind has become devoid of normal judgment and dominated by a mental disorder caused by a work-connected injury cannot be said to have ‘‘willfully’’ committed an act of self-destruction within the meaning of this section. McDonald v. Atlantic Steel Co., 133 Ga. App. 157, 210 S.E.2d 344 (1974). Suicide not insuperable barrier to recovery. — If it can be clearly shown that but for accident employee would not have committed suicide and that the employee was driven to take the employee’s life by the injury inflicted, then this section would not be an insuperable barrier to recovery. McDonald v. Atlantic Steel Co., 133 Ga. App. 157, 210 S.E.2d 344 (1974). Although suicide is by definition self-inflicted, suicide does not ipso facto preclude compensation when injury is its proximate cause, that is, when it is caused by severe pain and despair proximately resulting from the accident, sufficient to cause a disturbance of the mind and the overriding of normal judgment to the extent that the act, although ‘‘purposeful’’ is found to be not ‘‘intentional.’’ McDonald v. Atlantic Steel Co., 133 Ga. App. 157, 210 S.E.2d 344 (1974). Pattern of progressive alcoholism. — In terms of proximate cause, pattern of 34-9-17 progressive alcoholism falls within intentionally self-inflicted injury category of this section rather than ‘‘intoxication.’’ Bullington v. Aetna Cas. & Sur. Co., 122 Ga. App. 842, 178 S.E.2d 901 (1970), rev’d on other grounds, 227 Ga. 485, 181 S.E.2d 495 (1971) for comment, see 8 Ga. St. B.J. 107 (1971). When medical cause of death was due to alcoholism, which in turn was allegedly brought on by a work-connected injury, defense may be raised under this section that this was an intentionally self-inflicted injury. Bullington v. Aetna Cas. & Sur. Co., 122 Ga. App. 842, 178 S.E.2d 901 (1970), rev’d on other grounds, 227 Ga. 485, 181 S.E.2d 495 (1971), for comment, see 8 Ga. St. B.J. 107 (1971). Attempt to Injure Another Compensation barred when claimant is aggressor. — When claimant is injured in an attack by another employee, claimant must not have been the aggressor. State v. Purmort, 143 Ga. App. 269, 238 S.E.2d 268 (1977). Aggressive action did not arise out of employment. — Claimant is not entitled to compensation when injury to deceased employee was the result of a fight between the deceased and a fellow employee in which deceased employee was the aggressor, as in such a case the injury was not an accident arising out of the employment within the meaning of the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.). Liberty Mut. Ins. Co. v. Reed, 56 Ga. App. 68, 192 S.E. 325 (1937). Intoxication ‘‘Intoxication’’ defined. — ‘‘Intoxication’’ is a condition in which one is under the influence of intoxicating liquors to the extent that one is not entirely oneself, or one’s judgment is impaired, and one’s acts, words, or conduct are visibly and noticeably affected. Parks v. Maryland Cas. Co., 69 Ga. App. 720, 26 S.E.2d 562 (1943); Fidelity & Cas. Co. v. Hodges, 108 Ga. App. 474, 133 S.E.2d 406 (1963). Intoxication does not consist merely in having partaken of intoxicating liquor, or in being to some extent 558 34-9-17 WORKERS’ COMPENSATION under the influence of it. Parks v. Maryland Cas. Co., 69 Ga. App. 720, 26 S.E.2d 562 (1943). Intoxication which produces injury must be that of employee personally. Home Indem. Co. v. White, 154 Ga. App. 225, 267 S.E.2d 846 (1980). Injury due to willful misconduct. — Injury due to intoxication is, as a matter of definition, injury due to willful misconduct; and once a finding is made that death was due to intoxication, which finding is sufficiently supported by the evidence, compensation must be denied. Reynolds v. Georgia Ins. Co., 149 Ga. App. 162, 253 S.E.2d 839 (1979). Accident resulting in injury proximately caused by claimant’s intoxication does not arise out of employment, although occurring during the course of the employment. Stephens v. Hartford Accident & Indem. Co., 116 Ga. App. 15, 156 S.E.2d 100 (1967). Showing of proximate cause required. — Burden was upon employer to establish that death of claimant’s spouse was due to the spouse’s intoxication, and it was not sufficient to show merely that the spouse was intoxicated, but rather, it was essential, in order to constitute a bar to compensation, to show that the spouse’s death was caused by the spouse’s intoxication, and that intoxication was the proximate cause of death. General Accident Fire & Life Assurance Corp. v. Prescott, 80 Ga. App. 421, 56 S.E.2d 137 (1949). Burden is on one who claims an exemption or forfeiture to show that intoxication was the proximate cause of the injury or death of employee. Fidelity & Cas. Co. v. Hodges, 108 Ga. App. 474, 133 S.E.2d 406 (1963). Determination as to intoxication necessary. — Determination as to whether employee was intoxicated and whether the employee’s intoxication was a proximate cause of the employee’s injury is required by law before denying compensation. Bloodworth v. Continental Ins. Co., 151 Ga. App. 576, 260 S.E.2d 536 (1979). Board’s findings as to intoxication conclusive. — Findings of fact of State Board of Workers’ Compensation are conclusive, and when the board failed to make a determination as to whether the 34-9-17 defendant’s alleged intoxication was a proximate cause of the injury, neither trial court nor appellate court could make that determination. Bloodworth v. Continental Ins. Co., 151 Ga. App. 576, 260 S.E.2d 536 (1979). Evidence as to intoxication held insufficient. — When the only evidence respecting drinking of intoxicating liquors by deceased consisted in testimony of a friend to the effect that the deceased, when the friend first saw the deceased, had been drinking but had not had more than one drink, that the deceased later took two small drinks, and that this liquor did not cause the deceased to become drunk or in any way impair the deceased’s faculties, and in testimony of a doctor that deceased suffered from alcoholism, and that alcohol could be smelled on the deceased’s breath, but that the doctor could not say that deceased was drunk, the evidence was not sufficient to authorize the conclusion that the deceased was in a state of intoxication at the time of the fatal accident. Parks v. Maryland Cas. Co., 69 Ga. App. 720, 26 S.E.2d 562 (1943). Drunk driving barred recovery. — Workers’ Compensation Board was authorized to find employee acted in willful misconduct in driving with a blood alcohol level of .23 percent, proceeding the wrong way onto an exit ramp marked with signs indicating that the employee was going the wrong way, and then driving southbound for approximately 11.5 miles in the northbound lane of an interstate highway and in determining the employee’s death resulting from a head-on automobile collision was not compensable. Communications, Inc. v. Cannon, 174 Ga. App. 820, 331 S.E.2d 112 (1985). Safety Appliances Meaning of ‘‘safety appliance.’’ — Any instrumentality provided by master for use by employee in operation of machine, use of which, in operation of the machine, would reduce danger or hazard to employee from machine’s operation, was a ‘‘safety appliance’’ within the meaning of this section. Liberty 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 (1944). 559 Safety Appliances (Cont’d) Safety appliance need not be physically attached to machine. — ‘‘Safety appliance’’, within the meaning of this section, was not necessarily an appliance physically attached to or physically connected with the machine from the use of which the injury arose. Liberty Mut. Ins. Co. v. Perry, 53 Ga. App. 527, 186 S.E. 576 (1936). ‘‘Willfulness’’ in failure to use safety appliance. — Mere intentional and voluntary failure to use a proper safety appliance does not necessarily make the act willful; willfulness contemplated amounts to more than a mere act of the will, and carries with it the idea of premeditation, obstinacy, and intentional wrongdoing. Pullman Co. v. Carter, 61 Ga. App. 543, 6 S.E.2d 351 (1939). Failure to use easily accessible safety appliance as ‘‘willful’’. — When safety appliance provided by master is located in proximity to the machine and is easily accessible to employee operating the machine, and its location is known to the employee, and the employee has received specific instructions not to operate the machine without use of such appliance, operation of the machine by an employee without use of the appliance constitutes a willful failure or refusal to use the safety appliance; and when the employee is injured in operation of the machine by reason of not having used the appliance, the employee is barred the right to compensation. Liberty 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 (1944). Sudden emergency theory held no excuse when safety articles were in close proximity. — Employee was not excused from complying with requirements for use of rubber gloves and boots in starting, operating, or working upon or about electric motors using high voltages, upon a theory that the employee was confronted with a sudden necessity or emergency or acted inadvertently, unconsciously, or involuntarily, when it appeared that within close proximity of the place of the employee’s electrocution both gloves and boots were accessible and 34-9-17 available for the employees, and that the employee had constantly stressed upon the employee’s subordinates the danger of working with the motors without using the safety articles. Herman v. Aetna Cas. & Sur. Co., 71 Ga. App. 464, 31 S.E.2d 100 (1944). Superintendent who promulgated and enforced rules not excused from complying therewith. — Employee was not excused from complying with requirements for use of rubber gloves and boots in starting, operating, or working upon or about electric motors using high voltages by reason of the fact that the employee, as superintendent, promulgated and enforced such requirements. Herman v. Aetna Cas. & Sur. Co., 71 Ga. App. 464, 31 S.E.2d 100 (1944). Finding of board as to willfulness conclusive. — When conduct of employee may be a conscious and intentional violation of a known rule so as to constitute willful misconduct, or may be merely inadvertent or an involuntary violation so as to constitute negligence only, decision of the board on the point must be honored by the appellate court. North Ga. Technical & Vocational Sch. v. Boatwright, 144 Ga. App. 66, 240 S.E.2d 563 (1977). In interpreting this section as to use of safety appliances, the court should give it a reasonable interpretation and should give the words thereof their usual and most known signification, not so much regarding the propriety of grammar, as their general and popular use. Pullman Co. v. Carter, 61 Ga. App. 543, 6 S.E.2d 351 (1939). Breach of Rule Approved by Board Violation of rule which is not approved by the board is not willful misconduct. Liberty Mut. Ins. Co. v. Scoggins, 72 Ga. App. 263, 33 S.E.2d 534 (1945) (decided prior to 1996 amendment). Claim not barred when rule not approved. — Although at the time of fatal injury employee was riding on fender of truck, when the employee had voluntarily placed oneself after having been warned of the danger and although employer had issued a rule to the effect that the employees riding upon the truck should not ride in such position, yet when 560 34-9-17 WORKERS’ COMPENSATION such rule had not been approved by the commission (now the board), employee was not barred from a recovery of compensation by reason of any breach by the employee of the rule, since such bar applies only when the rule has the approval of the commission (board). Integrity Mut. Cas. Co. v. Jones, 33 Ga. App. 489, 126 S.E. 876 (1925) (decided prior to 1996 amendment). Rule as to safety of money and valuables. — Any rule governing the safety of 34-9-17 money and valuables would not be approved by the commission (now the board), as the commission (board) would regard these rules as outside the limitations of the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.), since rules governing the safety of money in no way tend to prevent industrial accidents. Southeastern Express Co. v. Edmondson, 30 Ga. App. 697, 119 S.E. 39 (1923) (decided prior to 1996 amendment).