Employers Mut. Liability Ins. Co. v. Carlan, 38879

• Decision Date: 23 June 1961
• Docket Number: No. 1,No. 38879,38879,1
• Citation: 121 S.E.2d 316,104 Ga.App. 170
• Parties: EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY v. O. E. CARLAN
• Court: Georgia Court of Appeals

Page 316

121 S.E.2d 316

104 Ga.App. 170

EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY v. O. E. CARLAN.

No. 38879.

Court of Appeals of Georgia, Division No. 1.

June 23, 1961.

Rehearing Denied July 13, 1961.

Syllabus by the Court.

Where the claimant sustained accidental injuries during a ten minute rest break while en route to use a telephone on his employer's premises to call the employer's personnel department, as they had instructed him to do, in regard to his application for a different job assignment which could be performed by the claimant with a physical limitation imposed by a prior compensable injury incurred in the same employment, and where the claimant was compensated for such rest breaks by the employer and required by it to remain on the premises, such accidental injury arose 'out of and in the course of the employment' within the purview of the Workmen's Compensation Act and hence was compensable.

Odis Eugene Carlan filed his claim for workmen's compensation benefits against his employer, Lockheed Aircraft Corp., and its insurer, Employers Mutual Liability Insurance Co., as provided for by Code § 114-404, on account of disability allegedly sustained as a result of an accident arising out of and in the course of his employment. At the trial of the case before a deputy director it appeared from the undisputed evidence that the claimant had been working under limitations due to a physical injury previously sustained while employed by Lockheed Aircraft Corp., and that immediately prior to the accident in question claimant had been given a test and examination by his employer for the purpose of applying for another job within the plant which did not involve manual labor. During a ten minute rest break, the claimant went down a stairway to use a telephone on the next floor in order to call the personnel department to find out the results of the test, as he had been instructed to keep in touch with them in regard to this test. Claimant was paid by his employer for this break period and was under the employer's control, not being allowed to leave the working area without the employer's consent. While going down the stairway, the claimant's foot slipped on the stairs and as he grabbed the handrail his back was wrenched, causing the injury for which the claim was filed.

The deputy director entered an award ordering workmen's compensation benefits paid. This award was affirmed by a majority of the full board of the State Board of Workmen's Compensation, there being one dissent. On appeal to the superior court the award of the majority of the State Board of Workmen's Compensation was affirmed, on which judgment error is assigned.

Smith, Swift, Currie, McGhee, & Hancock, Glover McGhee, Atlanta, for plaintiff in error.

Howell C. Ravan, Herman H. Buckner, Marietta, for defendant in error.

FELTON, Chief Judge.

The question for decision before us is whether or not the claimant employee's accident arose out of and in the course of his employment. Plaintiff in error contends that when the defendant in error left his immediate working area and went to use the pay telephone he was no longer within the course of his employment, and that the accidental injury which he suffered was not such an 'injury by accident arising out of and in the course of the employment' as would bring it within the purview of the Workmen's Compensation Act. In General Accident Fire & Life Assurance Corporation et al. v. Worley, 86 Ga.App. 794, 72 S.E.2d 560, 562, this court stated: 'When injuries are sustained by employees who are not at the moment actually engaged in doing the work they have been hired to do, during [the] time for which compensation is paid them, but who are performing acts preparatory to entering or leaving their employment, or other incidental acts within the period of their employment but not strictly in furtherance of it, it becomes ordinarily a question of fact as to whether the requirements of the Workmen's Compensation Law have been met, and the burden is...