Burdette v. Chandler Telecom, LLC.

• Decision Date: 30 October 2015
• Docket Number: No. A15A1423.,A15A1423.
• Citation: 335 Ga.App. 190,779 S.E.2d 75
• Parties: BURDETTE v. CHANDLER TELECOM, LLC.
• Court: Georgia Court of Appeals

335 Ga.App. 190

779 S.E.2d 75

BURDETTE

v.CHANDLER TELECOM, LLC.

No. A15A1423.

Court of Appeals of Georgia.

Oct. 30, 2015.

Reconsideration Denied Dec. 8, 2015.

Daniel Bruce Greenfield, Bremen, for Appellant.

Andrew Garrett Daugherty, Atlanta, for Appellee.

DILLARD, Judge.

Adrian Burdette, who was seriously injured after falling from a cell-phone tower while working for Chandler Telecom, LLC ("Chandler"), appeals the State Board of Workers' Compensation's (the "Board") decision to deny him benefits, which the superior court affirmed by operation of law. On appeal, Burdette argues that the Board erred in finding that his act of descending the tower by "controlled-descent,"¹ contrary to company policy, was "willful misconduct," which barred his recovery. He further contends that the administrative law judge ("ALJ"), who presided over the hearing on his claim for benefits, erred in making several evidentiary rulings. For the reasons set forth infra, we reverse.

Viewing the evidence in a light most favorable to Chandler (i.e., the prevailing party),² the record shows that Burdette³ was initially employed by Chandler as a cell-tower technician on September 1, 2012, and he worked there for three weeks before taking a five-week leave of absence. Burdette was terminated during his leave of absence due to a miscommunication with his supervisor, but he was then rehired on November 2, 2012. During Burdette's leave of absence, Chandler required all of its cell-tower technicians to become ComTrain certified.⁴ Upon his return, Burdette was asked if he was ComTrain certified, and he lied and said that he had this certification.⁵

On November 5, 2012, Burdette's first day back at work, he was assigned to work on the top of a cell tower with Brian Prejean, who was the "lead tower hand" of the crew.⁶ And prior to their shift that day, the supervisor over Burdette's six-person crew instructed them to climb down the towers and not to use controlled descent. Prejean and Burdette then worked together on the same cell tower from around 8:00 a.m. until 3:30 or 4:00 p.m. When their work was almost complete, Prejean instructed Burdette to climb down the tower, but Burdette responded that he wanted to use controlled descent instead.

Prejean's account of his conversation with Burdette just before Burdette's descent (and fall) is as follows:

I told him no, man, just climb down. Might as well just climb down.... [W]e don't have a safety rope up here for you to grab. He told me he had done this so many times. I was like, dude, they're going to be mad if you do it. [Our supervisor] will be mad if you do it and, ... you might not have a job or you might, you know, have to deal with the consequences if you don't listen....

Nevertheless, even after Prejean instructed Burdette to climb down the tower two or three more times, Burdette prepared his equipment and began controlled descent. Shortly thereafter, Burdette fell a great distance from the tower and landed on an "ice bridge," which caused serious injuries to his ankle

, leg, and hip. Burdette has no memory of his fall or anything that happened immediately before or after it, including his conversation with Prejean. Prejean testified that Burdette's fall was the result of "user error," rather than any equipment malfunction.⁷ He further noted that, while Burdette had the required equipment for climbing down, he did not have all of the necessary equipment for controlled descent.

After the accident, Burdette filed a claim for workers' compensation related to the injuries that he sustained. A hearing was then held before an ALJ, and after reviewing post-hearing briefs from the parties, the ALJ denied Burdette's claim for benefits. Specifically, the ALJ found that Burdette was barred from recovery because he engaged in "willful misconduct" within the meaning of OCGA § 34–9–17(a),⁸ when he defied his supervisor's instruction to climb down the tower instead of using controlled descent. Burdette appealed the ALJ's award to the Board, and the Board affirmed and adopted the ALJ's findings. On October 4, 2014, Burdette filed a notice of appeal in the superior court, but that court never scheduled a hearing or issued a ruling on the matter. As a result, the Board's decision to deny Burdette benefits was affirmed by operation of law 60 days after it was docketed in the superior court.⁹ Thereafter, we granted Burdette's application for discretionary appeal. This appeal follows.

1. As a preliminary matter, although Chandler does not develop any legal arguments to support this contention, it suggests in passing (and argued more fully below) that the superior court lacked jurisdiction over this case because Burdette filed his appeal from the Board's decision in the wrong county. In relevant part, OCGA § 34–9–105 provides that "if the injury occurred outside the state," either party to a workers' compensation dispute may appeal to "the superior court of the county in which the original hearing was held" within 20 days of the Board's final order or judgment.¹⁰

Here, it is undisputed that Burdette was injured in Texas, and that he did not appeal the Board's decision to the superior court in the same county where the original hearing before the ALJ was held. Nevertheless, in Fowler v. Aetna Casualty & Surety Company,¹¹ this Court overruled a line of cases holding that a superior court lacks subject-matter jurisdiction over appeals from workers' compensation awards that are filed in the wrong venue,¹² noting that the restrictive rule expressed in those cases would thwart the compensatory purpose of the Workers' Compensation Act.¹³ Thus, we held in Fowler that a superior court has subject-matter jurisdiction over an appeal from a workers' compensation award even if it was filed in the wrong county.¹⁴ Based on the foregoing, to the extent that Chandler argues the superior court lacked subject-matter jurisdiction over Burdette's appeal because it was not filed in the proper county, we reject that contention.

2. Turning to the merits of this appeal, Burdette first argues that the ALJ and the Board erred in finding that his workers' compensation claim was barred because his injury resulted from his own "willful misconduct." We agree.

At the outset, we note that whether or not an employee is guilty of willful misconduct, or is guilty of willful refusal to perform a duty imposed on that employee by statute, are "questions of fact for the Board of Workers' Compensation, and the findings of the Board upon these questions are final, and will not be disturbed where there is evidence to support them."¹⁵ With this guiding principle in mind, we turn now to Burdette's specific claim.

OCGA § 34–9–17(a) provides that

[n]o 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.

"Willful misconduct" is an affirmative defense¹⁶ that the employer must prove by a preponderance of the evidence.¹⁷ And although OCGA § 34–9–17 does not define "willful misconduct," the Supreme Court of Georgia has explained:

Mere violation of rules, when not willful or intentional, is not willful misconduct, within the meaning of the laws upon the subject of workmen's compensation. There must be something more than thoughtlessness, heedlessness, or inadvertence in violating a rule or order of the employer, to constitute willful misconduct. There must be a willful breach of the rule or order. The mere violation of rules, when not willful or intentional, is not ‘willful misconduct.’ If the workman is acting within the scope of his employment, mere disregard of a rule or order does not become such misconduct, unless the disobedience be in fact willful or deliberate, and not a mere thoughtless act, done on the spur of the moment.¹⁸

Our Supreme Court has further explained that willful misconduct "involves conduct of a quasi criminal nature, 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."¹⁹ Indeed, the general rule is that "mere violations of instructions, orders, rules, ordinances, and statutes, and the doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute [willful] misconduct."²⁰

On appeal, Burdette relies on Wilbro v. Mossman²¹ to support his contention that his disobedience of a work rule—i.e., using controlled descent instead of climbing down the cell tower—does not constitute willful misconduct as a matter of law. In Wilbro, a store clerk fell from a shelf on which she was standing to restock merchandise on the "highest shelf," and she injured her head

and back.²² Although the clerk had been using a stepladder, the top shelf could not be reached with the ladder.²³ And there was evidence that the clerk's supervisor had instructed her and her co-worker not to restock shelves that they could not reach with the stepladder and not to stand on the shelves.²⁴ Additionally, the co-worker reminded the clerk of the supervisor's instruction when she was climbing on the shelves, but the clerk said "it was okay and did not come down."²⁵ When the store clerk subsequently sought workers' compensation benefits, the store asserted the affirmative defense that recovery was barred by the clerk's willful misconduct.²⁶ But relying on the Supreme Court precedent set forth above, we held that the employee's conduct "cannot constitute willful misconduct as a matter of law since the conduct was at most a violation of instructions and/or the doing of a hazardous act in which the danger was obvious, but was not conduct that was criminal or quasi-criminal in nature."²⁷

We see no meaningful distinction between Wilbro and the case sub judice. Here, like the clerk in Wilbro,...