Garrett v. K-Mart Corp.

• Decision Date: 25 October 1990
• Docket Number: K-MART,No. A90A0989,A90A0989
• Citation: 197 Ga.App. 374,398 S.E.2d 302
• Parties: GARRETT v.CORPORATION.
• Court: Georgia Court of Appeals

Page 302

398 S.E.2d 302

197 Ga.App. 374

GARRETT v. K-MART CORPORATION.

No. A90A0989.

Court of Appeals of Georgia.

Oct. 25, 1990.

Michael C. Smith, E. Earl Seals, La Grange, for appellant.

Glover & Davis, Carlton H. Jones, III, Newnan, for appellee.

SOGNIER, Judge.

Jimmie Garrett brought an action against her employer, K-Mart Corporation, seeking damages for injuries she incurred when she fell while at work. The trial court granted K-Mart's motion to dismiss, and Garrett appeals.

The injury at issue occurred on September 19, 1987. Appellant sought benefits under the Workers' Compensation Act (the Act), OCGA § 34-9-1 et seq., but her claim was denied based on the findings of the administrative law judge and the State Board of Workers' Compensation that appellant's injury did not arise out of her employment, see OCGA § 34-9-1(4), but rather was caused by a pre-existing condition that was not aggravated by her work with appellee. See Borden Foods Co. v. Dorsey, 112 Ga.App. 838, 146 S.E.2d 532 (1965). The instant suit, filed on June 9, 1989, was dismissed by the trial court pursuant to OCGA § 34-9-11, which provides that "[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, ... at common law or otherwise, on account of such injury." The trial court held that because appellant was injured "during the course and scope of her employment" she was precluded by OCGA § 34-9-11 from pursuing her common law tort claim against appellee. The trial court's consideration of matters outside the pleadings, namely, the prior proceedings under the Act, require that as to this issue appellee's motion to dismiss be treated as and disposed of as one for summary judgment. OCGA § 9-11-12(c).

We agree with appellant that an injury which does not "arise out of" the employment is not covered by the Act, even where the injury may have occurred "in the course of" the employment. "Injury" as defined in OCGA § 34-9-1(4) "means only injury by accident arising out of and in the course of the employment." (Emphasis supplied.) It has long been established that both "[a]rising out of and in the course of the employment must concur before the work[ers'] compensation act can apply to an injury to an employee. [Cit.]" Lumbermen's Mut. Cas. Co. v. Babb, 67 Ga.App. 161, 164, 19 S.E.2d 550 (1942). It follows that where, as here, the first statutory requirement is not met, in that the injury did not "arise out of" the employment, the Act is not applicable regardless whether the injury met the second requirement and occurred "in the course of" the employment. We note that although this court's opinions, in determining whether the two requirements of OCGA § 34-9-1(4) have been met, consistently discuss the matter in terms of whether an injury is "compensable" under the Act rather than whether the injury is "covered" by the Act (see, e.g., Blair v. Ga. Baptist, etc., 189 Ga.App. 579, 580-581(1), 377 S.E.2d 21 (1988); Borden, supra, 112 Ga.App. at 838-839(3), 146 S.E.2d 532), that terminology has not been employed in a manner to support the reasoning used by the trial court. The substance of those cases is that where an injury fails to meet either of the two statutory requirements under OCGA § 34-9-1(4), that injury is not covered by or subject to the Act. Cases where the claimed injury was covered by the Act but no compensation was available for the claimant, such as Venable v. John P. King Mfg. Co., 174 Ga.App. 800, 803, 331 S.E.2d 638 (1985), are distinguishable in that the injuries involved therein nevertheless met the initial statutory requirement of OCGA § 34-9-1(4) that the injury both "arise out of" and occur "in the course of" the employment.

However, a judgment right for any reason is to be affirmed. Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539, 307 S.E.2d 914 (1983). "[T]he doctrines of res judicata and estoppel by judgment are applicable to awards of the State Board of Work[ers'] Compensation on all questions of fact in matters in which it has jurisdiction. [Cits.]" Woods v. Delta Air Lines, 237 Ga. 332, 227 S.E.2d 376 (1976). The doctrine of res judicata applies where there is an identity of parties, an identity of the cause of action, and adjudication by a court of competent jurisdiction. Georgia Cas., etc., Co. v. Randall, 162 Ga.App. 532, 533, 292 S.E.2d 118 (1982). The parties in the case at bar are the same as those at the administrative hearing. As to the remaining two requisites, we find they are controlled here by Southern Wire, etc., v. Fowler, 217 Ga. 727, 731, 124 S.E.2d 738 (1962).

A review of the factual determinations made by the ALJ and the Board reveals that several significant matters had been established adversely to appellant, including (1) that both parties to this appeal were subject to the Act; (2) that her fall was caused only by her pre-existing Meniere's Syndrome; (3) that appellant's condition was not aggravated by her work with appellee; (4) that there was nothing on the job which contributed to appellant's fall; and (5) that there was no peculiar danger to which her work exposed her. In her complaint, appellant's allegations do not directly contradict the above findings. Rather, the basis for appellant's complaint is that appellee, through its agents, knew about her tendency to faint (of which she asserts she was unaware) and therefore had superior knowledge of the dangers of appellant's work place, yet appellee continued to employ her in conditions which it knew were especially dangerous to her. (We note that appellant's pleadings do not involve any breach of professional responsibility. Compare Downey v. Bexley, 253 Ga. 125, 317 S.E.2d 523 (1984).)

Construing appellant's pleadings liberally, the most likely interpretation to be...