Chaparral Boats, Inc. v. Heath, A04A0981.

• Decision Date: 03 August 2004
• Docket Number: No. A04A0981.,A04A0981.
• Citation: 269 Ga. App. 339,606 S.E.2d 567
• Parties: CHAPARRAL BOATS, INC. et al. v. HEATH.
• Court: Georgia Court of Appeals

606 S.E.2d 567

269 Ga. App. 339

CHAPARRAL BOATS, INC. et al. v. HEATH.

No. A04A0981.

Court of Appeals of Georgia.

August 3, 2004.

Reconsideration Denied August 31, 2004.

Clyatt, Clyatt, & Golden, Melissa M. Clyatt, Richard L. Perryman III, for appellants.

Berrien L. Sutton, Bryant H. Bower, Jr., Waycross, for appellee.

ANDREWS, Presiding Judge.

Chaparral Boats, Inc. and its workers' compensation insurer, Legion Insurance Company, appeal from the order of the Berrien County Superior Court reversing the appellate division of the State Board of Workers' Compensation and finding that Dale Heath was entitled to workers' compensation benefits as a result of knee injuries she incurred while working for Chaparral. The superior court found that Heath incurred two compensable injuries to her left knee, the first occurring on January 19, 2001, and the second occurring after Heath returned to work and aggravated the prior injury and was forced to cease work and undergo knee surgery. Chaparral and Legion contend the superior court erred in both of these rulings. For the following reasons, we find: (1) that the injury to Heath's knee on January 19, 2001, was not compensable because it did not arise out of her employment, and (2) that, even though the initial injury was not compensable, Heath aggravated the injury when she returned to work and incurred a compensable new injury when she was forced to cease work on March 5, 2001, to undergo surgery.

1. First, we address the issue of whether Heath's January 19, 2001 injury arose out of her employment. The administrative law judge (ALJ) found that on January 19, 2001, Heath hyperextended her left knee while she was walking across the Chaparral premises to clock in for work. The evidence showed that Heath was walking at a quicker than normal pace at the time because she was almost late for work when she suddenly felt popping and pain in her left knee, stopped briefly, and then resumed walking with a limp. There was no evidence that Heath slipped, tripped or fell at the time of the injury, nor was there any evidence that she came into contact with any object. Medical evidence showed that the hyperextension, which caused cartilage tears in Heath's knee, could have occurred whether Heath was walking at a normal or quick pace, and the ALJ found that Heath did not contend her quickened pace caused the injury. After considering the evidence presented, the ALJ found that Heath did not show by a preponderance of the evidence that the January 19, 2001 injury to her knee arose out of employment because she failed to produce evidence of a causal connection between her employment and the injury.

The appellate division affirmed the ALJ's decision finding that a preponderance of the competent and credible evidence showed that the January 19, 2001 injury did not arise out of Heath's employment because there was no causal connection between her employment and the injury. The superior court reversed the appellate division and found that Heath's injury arose out of her employment and was therefore compensable. The court ruled that the evidence could only support the conclusion that the injury arose out of the employment, and that the appellate division erred by finding that the injury did not arise out of Heath's employment because it failed to properly apply the principles set forth in Johnson v. Publix Supermarkets, 256 Ga.App. 540, 541, 568 S.E.2d 827 (2002) (physical precedent only) ¹, that "[p]hysical contact with some object" is not necessary in order for the employee to sustain a compensable injury arising out of employment, and that "to be compensable, injuries do not have to arise from something peculiar to the employment." Because neither of these holdings in Johnson compels the conclusion that Heath's January 19, 2001 injury arose from her employment, we reverse the superior court. Moreover, as explained herein, to the extent Johnson erroneously construed the principles underlying these holdings, the physical precedent established in Johnson is disapproved.

For an accidental injury to be compensable under the Workers' Compensation Act, the injury must not only occur in the course of the employment, but also must arise out of the employment. OCGA § 34-9-1(4). Chaparral does not dispute the finding that the January 19, 2001 injury arose in the course of Heath's employment because it occurred on Chaparral property while Heath was within a reasonable period of ingress from her car to the workplace. Harrison v. Winn Dixie Stores, 247 Ga.App. 6, 7-8, 542 S.E.2d 142 (2000). Rather, the disputed issue is whether Heath carried the burden of showing by a preponderance of the evidence that her accidental injury arose out of her employment. Dasher v. City of Valdosta, 217 Ga.App. 351, 352, 457 S.E.2d 259 (1995); OCGA § 34-9-1(4).

[For an accidental injury to arise out of the employment] there must be some causal connection between the conditions under which the employee worked and the injury which he received. The causative danger must be incidental to the character of the employment, and not independent of the relation of master and servant. The accident must be one resulting from a risk reasonably incident to the employment. And a risk is incident to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service.

Thornton v. Hartford Accident etc., Co., 198 Ga. 786, 792-793, 32 S.E.2d 816 (1945). "An injury arises `out of' the employment when a reasonable person, after considering the circumstances of the employment, would perceive a causal connection between the conditions under which the employee must work and the resulting injury." Hennly v. Richardson, 264 Ga. 355, 356, 444 S.E.2d 317 (1994).

In reversing the appellate division and holding that Heath's January 19, 2001 injury arose out of her employment, the superior court relied in part on the statement in Johnson, that "to be compensable, injuries do not have to arise from something peculiar to the employment." (Punctuation omitted.) Johnson, 256 Ga.App. at 541,568 S.E.2d 827. Johnson took this statement from the decision in Nat. Fire Ins. Co. v. Edwards, 152 Ga.App. 566, 567, 263 S.E.2d 455 (1979), which discussed the "positional risk doctrine," a corollary of the general principles defining what constitutes an accidental injury arising out of the employment. Edwards held that, under the positional risk doctrine, an accidental injury arises out of the employment when the employee proves that "his work brought him within range of the danger by requiring his presence in the locale when the peril struck, even though any other person present would have also been injured irrespective of his employment." Edwards, 152 Ga.App. at 567,263 S.E.2d 455. Edwards also overruled any cases holding contrary to the positional risk doctrine "that the danger must be peculiar to the work and not common to the neighborhood for injuries to arise out of... the employment." Edwards, 152 Ga.App. at 568,263 S.E.2d 455.

Prior to Edwards, an increased risk theory similar to the positional risk doctrine was applied by the Supreme Court of Georgia in Thornton, 198 Ga. 786, 32 S.E.2d 816, citing principles first set out by this Court in New Amsterdam Cas. Co. v. Sumrell, 30 Ga.App. 682, 690, 118 S.E. 786 (1923). Both Thornton and New Amsterdam addressed the general rule that, for an accidental injury to arise out of employment, it must be caused by a risk "peculiar" to the employment in the sense that the risk was not equally shared by or common to the public at large. Under the general rule, an injury which has some rational causal connection to a condition of the employment arises "out of" the employment, but this definition

excludes an injury which can not fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work. It must be incidental to the character of the business, and not independent of the relation of master and servant.

(Citations and punctuation omitted; emphasis supplied.) Fried v. United States Fidelity & Guaranty Co., 192 Ga. 492, 495, 15 S.E.2d 704 (1941).

Like Edwards, Thornton and New Amsterdam make clear that, even where the risk which caused the injury to the employee is common to the public at large — and therefore not peculiar to the employment — the injury arises out of the employment if a duty related to the employment placed the employee in a locale which exposed the employee to the common risk. Thornton, 198 Ga. at 792-795, 32 S.E.2d 816; New Amsterdam, 30 Ga.App. at 690-691, 118 S.E. 786; Edwards, 152 Ga.App. at 567-568, 263 S.E.2d 455. For example, in Edwards the employee was injured when a windstorm or tornado struck a building in which he was working, which caused parts of a wall to collapse on the employee. Id. at 566, 263 S.E.2d 455. The employer argued that the injury did not arise out of the employment because the causative danger was not peculiar to the employment but was common to the general public in the path of the storm. Id. at 566-567, 263 S.E.2d 455. Edwards rejected this argument and held instead that the injury arose out of the employment because the condition of the employment requiring the employee's presence in the place where the storm struck established a causal connection between the employment and the injury. Likewise, Thornton applied positional risk type principles to a traveling salesman employee who was injured when he slipped and fell crossing a wet street where the nature of his employment required him to be. Thornton, 198 Ga. at 786-793, 32 S.E.2d 816. In finding that the injury arose out of the employment, Thornton concluded that, even though the risk of crossing the wet street was one shared by the public at large under the same conditions — so it was not peculiar to...