Edwards v. State

• Decision Date: 28 November 1984
• Docket Number: No. 68661,68661
• Court: Georgia Court of Appeals
• Parties: EDWARDS v. STATE of Georgia.

Page 437

325 S.E.2d 437

173 Ga.App. 87

EDWARDS v. STATE of Georgia.

No. 68661.

Court of Appeals of Georgia.

Nov. 28, 1984.

Rehearing Denied Dec. 17, 1984.

Certiorari Denied Jan. 24, 1985.

Robert A. Elsner, Christopher G. Knighton, Atlanta, for appellant.

A. Cullen Hammond, Atlanta, for appellee.

McMURRAY, Chief Judge.

This is a workers' compensation case. The claimant, Queenie Edwards, has been employed since September 1980 as a secretary with the State Department of Labor, Employment Security Agency. On March 18, 1982, claimant slipped and fell at a nearby fast-food restaurant while she was getting lunch for her office manager. The claimant was unable to work for several weeks (although she received her full salary as sick pay during her convalescence), and she eventually applied for workers' compensation. The administrative law judge and the full Board (with one dissent) awarded the claimant benefits, but the superior court reversed on the basis that the claimant's injury did not arise out of and in the course of her employer's business.

It was undisputed that the claimant regularly obtained lunch for the office manager, and the claimant testified she had considered that task as one of her normal job duties. She contends the task was covered in her formal job description under the catch-all, "other duties as assigned by supervisors and managers." The claimant further maintained that the time period when she usually obtained her manager's lunch did not coincide with her own lunch break. While the office manager acknowledged that the claimant regularly procured his lunch for him so that he could remain working at his desk, he considered this service a personal favor and not one of claimant's assigned job duties; he also believed that the claimant usually obtained his lunch during her own lunch break.

It is, of course, axiomatic that only injuries which arise out of and in the course of employment are compensable under the Workers' Compensation Act. OCGA § 34-9-1(4). Ordinarily, whether an injury arose out of and in the course of employment is a question of fact and the Board's award, if supported by any evidence, may not be disturbed. Davidson v. Employers Ins. of Wausau, 139 Ga.App. 621, 229 S.E.2d 97 (1976); Employers Mut. Liability Ins. Co. v. Carlan, 104 Ga.App. 170, 121 S.E.2d 316 (1961). We find the case sub judice to fall within the general rule.

The Board determined that the manager could direct the employees to do various other jobs which would facilitate the proper performance of his job duties and it was his decision to remain in the office, continue to work and send the secretary to get lunch. Even though the office manager considered this to be a personal favor to him, the evidence was ample for the Board to determine that at the time she slipped and fell the claimant was not doing anything of a personal nature; and that the claimant was benefitting the employer by obtaining the office manager's lunch and allowing him to continue to work at his desk.

When an employee is injured while in the performance of a task which is of benefit to the employer, he is covered by the Act. Parker v. Travelers Ins. Co., 142 Ga.App. 711, 712(3), 236 S.E.2d 915; Glen Falls Ins. Co. v. Merck, 117 Ga.App. 163, 159 S.E.2d 300; Crowe v. Home Indemn. Co., 145 Ga.App. 873, 245 S.E.2d 75; 1A Larson, Workmen's Compensation Law, § 27.00, 27.40. Having determined that the claimant was injured while performing a task from which her employer derived benefit, the Board properly awarded benefits to the claimant.

The employer's reliance upon U.S. Fidelity & Guaranty Co. v. Skinner, 188 Ga. 823, 829, 5 S.E.2d 9 and American Mut. Liability Ins. Co. v. Lemming, 187 Ga. 378, 200 S.E. 141 is misplaced. In these cases, the claimant was not in the scope of his employment and the task which he undertook was of no benefit to the employer.

The award of the full Board was supported by evidence under the "any evidence" rule. Accordingly, the superior court erred in reversing the award of the board.

Judgment reversed.

BANKE and BIRDSONG, P.JJ., and CARLEY, SOGNIER and BENHAM, J., concur.

DEEN, P.J., POPE and BEASLEY, JJ., dissent.

DEEN, Presiding Judge, dissenting.

As noted by the majority, whether an injury arose out of and in the course of employment is usually a question of fact. In some cases, however, the issue presents a mixed question of fact and law. Utz v. Powell, 160 Ga.App. 888, 889, 288 S.E.2d 601 (1982); I consider this case to be within the latter category.

"Under liberal construction the statute [presently OCGA § 34-9-1] includes injury received in doing an act which the injured employee was employed directly to perform or an act incidental thereto, reasonably necessary in performance of the act he was employed to perform. If in performance of an act which he was directly employed to do, or an act reasonably necessary to be done in order to perform the act he was employed to do, the employee receives accidental injury, such injury is compensable. If the act does not come within either of these classifications, the injury is not compensable ... [W]hether an act comes within either classification is a question which involves the terms of the particular contract of employment." U.S. Fidelity & Guaranty Co. v. Skinner, 188 Ga. 823, 829, 5 S.E.2d 9 (1939) (emphasis supplied); see also American Mut. Liability Ins. Co., v. Lemming, 187 Ga. 378, 200 S.E. 141 (1938).

In Lemming, where an employee of a corporation was injured (on a lot adjacent to the place of business) while on company time building a turkey pen for the corporation's president at the latter's instructions, and the corporation's business was unrelated to raising turkeys, the Supreme Court held that under those circumstances, it could not be said "that the injury resulted from an accident arising out of and in the course of the employer's business, notwithstanding the testimony of the president of the company that the directors knew that he was raising turkeys and using mill labor in connection therewith; that the employee was to do anything he instructed him to do; that he had the authority to direct the employee to do anything he saw fit; that the officers and directors called on Lemming to do 'all their jobs,' and that the odd jobs were not separated from his regular job of keeping the mill and houses in repair." Id. at 380, 200 S.E. 141. While the majority rule in other jurisdictions appears to allow compensation in cases of this nature, where the employee's act conferred some benefit upon the employer, our Supreme Court has not yet adopted such a liberal view. The Supreme Court cases of Skinner and Lemming remain valid, binding, and dispositive precedents applicable to this case.

The appellant in this case was directly employed as a secretary, and her specified job duties certainly did not include fetching fast food on "company" time for the office manager's lunch. The only possible justification for finding such a delivery service to be a de facto job duty of the appellant as a secretary was the catch-all, i.e., "other duties as assigned," contained in her job description. As the superior court properly concluded, however, that language must be construed as contemplating activities concerning the running of an employment security office and not those of a fast food delivery service. Under Skinner and Lemming, it cannot seriously be contended that providing such a food service is reasonably necessary to be done in order to perform those specified secretarial duties for which the appellant was hired.

The majority evidently finds that Lemming is distinguishable in that building turkey pens did not benefit the corporation, whereas in the instant case, fetching the office manager's lunch benefited the employer by allowing the manager to continue working at his desk. However, this arguable benefit to the Department of Labor still did not render that task reasonably necessary and incidental to the...