2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 1 - General Provisions
§ 34-9-17. Grounds for Denial of Compensation; Burden of Proof in Establishing Grounds for Denial

1. No 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.
2. No compensation shall be allowed for an injury or death due to intoxication by alcohol or being under the influence of marijuana or a controlled substance, except as may have been lawfully prescribed by a physician for such employee and taken in accordance with such prescription:
   1. If the amount of alcohol in the employee's blood within three hours of the time of the alleged accident, as shown by chemical analysis of the employee's blood, urine, breath, or other bodily substance, is 0.08 grams or greater, there shall be a rebuttable presumption that the accident and injury or death were caused by the consumption of alcohol;
   2. If any amount of marijuana or a controlled substance as defined in paragraph (4) of Code Section 16-13-21, Code Sections 16-13-25 through 16-13-29, Schedule I-V, or 21 C.F.R. Part 1308 is in the employee's blood within eight hours of the time of the alleged accident, as shown by chemical analysis of the employee's blood, urine, breath, or other bodily substance, there shall be a rebuttable presumption that the accident and injury or death were caused by the ingestion of marijuana or the controlled substance; or
   3. If the employee unjustifiably refuses to submit to a reliable, scientific test to be performed in the manner set forth in Code Section 34-9-415 to determine the presence of alcohol, marijuana, or a controlled substance in an employee's blood, urine, breath, or other bodily substance, then there shall be a rebuttable presumption that the accident and injury or death were caused by the consumption of alcohol or the ingestion of marijuana or a controlled substance.
3. With the exception of the rebuttable presumptions set forth above, the burden of proof shall be generally upon the party who claims an exemption or forfeiture under this Code section.

(Ga. L. 1920, p. 167, § 14; Code 1933, § 114-105; Ga. L. 1990, p. 1147, § 1; Ga. L. 1994, p. 887, § 2; Ga. L. 1996, p. 1291, § 4.)

- For article surveying Georgia cases in the area of workers' compensation from June 1979 through May 1980, see 32 Mercer L. Rev. 261 (1980). For article surveying developments in Georgia workers' compensation law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 323 (1981). For annual survey of workers' compensation law, see 57 Mercer L. Rev. 419 (2005). For survey article on workers' compensation law, see 59 Mercer L. Rev. 463 (2007). For annual survey of workers' compensation, see 68 Mercer L. Rev. 333 (2016). For annual survey on decisions impacting workers' compensation, see 69 Mercer L. Rev. 357 (2017). For annual survey on worker's compensation, see 71 Mercer L. Rev. 345 (2019). For note discussing alcoholism and suicide as intentionally self-inflicted injuries under this chapter, in light of Bullington v. Aetna Cas. & Sur. Co., 122 Ga. App. 842, 178 S.E.2d 901 (1970), see 8 Ga. St. B. J. 107 (1971). For note on the 1994 amendments of this Code section, see 11 Ga. St. U.L. Rev. 204 (1994). For comment on Hall v. Kendall, 81 Ga. App. 592, 59 S.E.2d 421 (1950), see 13 Ga. B. J. 245 (1950). For comment on Pacific Indem. Ins. Co. v. Eberhardt, 107 Ga. App. 391, 130 S.E.2d 136 (1963), see 26 Ga. B. J. 111 (1963).

ANALYSIS

• General Consideration
• Willful Misconduct Generally
• Self-Inflicted Injury
• Attempt to Injure Another
• Intoxication
• Safety Appliances
• Breach of Rule Approved by Board

General Consideration

Constitutionality of paragraph (b)(3).

- Due process does not require that claimant have notice of the potential applicability of the rebuttable presumption of O.C.G.A. § 34-9-17(b)(3). Georgia Self-Insurers Guar. Trust Fund v. Thomas, 269 Ga. 560, 501 S.E.2d 818 (1998), reversing Thomas v. Diamond Rug and Carpet Mills, 226 Ga. App. 403, 486 S.E.2d 664 (1997).

Rebuttable presumption of O.C.G.A. § 34-9-17(b)(3) does not violate equal protection since it applies equally to all employees without regard to whether their employers fail to comply with the notice requirement of O.C.G.A. § 34-9-414. Georgia Self-Insurers Guar. Trust Fund v. Thomas, 269 Ga. 560, 501 S.E.2d 818 (1998), reversing Thomas v. Diamond Rug and Carpet Mills, 226 Ga. App. 403, 486 S.E.2d 664 (1997).

- Injured worker's claim was denied because the worker tested positive for marijuana and cocaine after the accident and then failed to rebut the presumption found in O.C.G.A. § 34-9-17(b)(2) that the accident was caused by the illegal use of controlled substances. The Supreme Court held that paragraph (b)(2) does not violate equal protection by differentiating between legal and illegal drug use; there is a rational basis for distinguishing between workers who are injured while taking prescription medication and those who are injured while taking illegal substances, and distinguishing between legal and illegal drug use bears a direct and real relationship to the legitimate government objective of promoting a safe work place. Kendrix v. Hollingsworth Concrete Prods., 274 Ga. 210, 553 S.E.2d 270 (2001).

- Court should give this section a liberal construction and as broad an interpretation as can be fairly given to it. Van Treeck v. Travelers Ins. Co., 157 Ga. 204, 121 S.E. 215 (1924).

- Rebuttable presumption of O.C.G.A. § 34-9-17(b)(3) incorporates only the drug testing procedures of O.C.G.A. § 34-9-415, not the notice provisions of O.C.G.A. § 34-9-414 thereof. Georgia Self-Insurers Guar. Trust Fund v. Thomas, 269 Ga. 560, 501 S.E.2d 818 (1998), reversing Thomas v. Diamond Rug and Carpet Mills, 226 Ga. App. 403, 486 S.E.2d 664 (1997).

Mere negligence is not a defense such as will bar recovery in compensation cases. General Accident Fire & Life Assurance Corp. v. Prescott, 80 Ga. App. 421, 56 S.E.2d 137 (1949).

- Once claimant proved that claimant's injury arose out of and in the scope of claimant's employment, the burden shifted to the employer to prove that either claimant's injuries were intentionally self-inflicted or they were caused by an attack for reasons personal to claimant. Hulbert v. Domino's Pizza, Inc., 239 Ga. App. 370, 521 S.E.2d 43 (1999).

Workers' compensation award to an injured employee was reversed when an administrative law judge erred by ruling that the rebuttable presumption in O.C.G.A. § 34-9-17(b)(3) could not arise because the employer/insurer failed to produce evidence that the alcohol and drug test that the employee failed to take would have been performed in a statutorily prescribed manner. Because of this error, the administrative law judge further erred by failing to rule on the issues of whether the rebuttable presumption arose and whether the employee's refusal to submit to the test was unjustified, and if so, whether the employee rebutted the presumption. Marine Port Terminals, Inc. v. Dixon, 252 Ga. App. 340, 556 S.E.2d 246 (2001).

Trial court erred by reversing a decision denying the claim for workers' compensation benefits because the award was not legally erroneous and was supported by some evidence that the claimant failed to carry the burden of proving by a preponderance of competent and credible evidence that the former employer was the employer when last injuriously exposed to asbestos. McKenney's, Inc. v. Sinyard, 350 Ga. App. 260, 828 S.E.2d 639 (2019), cert. denied, No. S19C1348, 2020 Ga. LEXIS 25 (Ga. 2020).

- Employee's conduct in negligently aggravating a work-related injury outside of the workplace may be a bar to compensation. Fort Howard Paper Co. v. Hallisey, 221 Ga. App. 325, 471 S.E.2d 231 (1996).

- It is not sufficient to authorize a finding that the employee's injury or death is due to the employee's willful misconduct or intoxication to show merely that at the time of the injury the employee was engaged in the performance of an act of willful misconduct or was intoxicated. Shiplett v. Moran, 58 Ga. App. 854, 200 S.E. 449 (1938).

- Willful misconduct or intoxication which bars compensation under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) must be such willful misconduct or intoxication as proximately causes the injury; burden of proof to show this is on the employer. Shiplett v. Moran, 58 Ga. App. 854, 200 S.E. 449 (1938).

Willful misconduct or intoxication of an employee which would bar a recovery for injuries sustained by the employee must be such willful misconduct or intoxication as proximately caused injury or death of the employee. Parks v. Maryland Cas. Co., 69 Ga. App. 720, 26 S.E.2d 562 (1943).

- It was error for hearing director of the board to disregard pertinent testimony offered by employer which tended to show that employee's death was the result of the employee's own intoxication and misconduct. Hudson v. Taylor, 88 Ga. App. 575, 77 S.E.2d 100 (1953).

- Misdemeanor conviction for marijuana could not be used to impeach the employee's testimony regarding drug use prior to an accident. Lastinger v. Mill & Mach., Inc., 236 Ga. App. 430, 512 S.E.2d 327 (1999).

- Burden of proof under this section need be carried only by a preponderance of the evidence. Borden Co. v. Dollar, 96 Ga. App. 489, 100 S.E.2d 607 (1957).

Employer has the burden when raising an affirmative defense, such as willful misconduct. Cornell-Young v. Minter, 168 Ga. App. 325, 309 S.E.2d 159 (1983).

- Whether employee was guilty of willful misconduct or other acts of forfeiture, as contemplated by this section, was a question of fact for the board, and the findings of the director and the board upon such questions are final, and will not be disturbed when there was evidence to support them. Herman v. Aetna Cas. & Sur. Co., 71 Ga. App. 464, 31 S.E.2d 100 (1944).

Whether the statutory infraction results from negligence or willfulness is a question of fact, and the finding of the board that the facts proved constitute one or the other of these circumstances is final and may not be disturbed by an appellate court if supported by evidence. Steed v. Liberty Mut. Ins. Co., 157 Ga. App. 273, 277 S.E.2d 278 (1981).

Cited in Fulton Bakery, Inc. v. Williams, 37 Ga. App. 780, 141 S.E. 922 (1928); Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S.E. 208 (1929); American Mut. Liab. Ins. Co. v. Smith, 67 Ga. App. 581, 21 S.E.2d 343 (1942); Reid v. Raper, 86 Ga. App. 277, 71 S.E.2d 735 (1952); American Mut. Liab. Ins. Co. v. King, 88 Ga. App. 176, 76 S.E.2d 81 (1953); GMC v. Craig, 91 Ga. App. 239, 85 S.E.2d 441 (1954); Aetna Cas. & Sur. Co. v. Watson, 91 Ga. App. 657, 86 S.E.2d 656 (1955); Beck v. Brower, 101 Ga. App. 227, 113 S.E.2d 220 (1960); Southern Wire & Iron, Inc. v. Fowler, 217 Ga. 727, 124 S.E.2d 738 (1962); Travelers Ins. Co. v. Neal, 124 Ga. App. 750, 186 S.E.2d 346 (1971); Smith v. American Mut. Liab. Ins. Co., 125 Ga. App. 273, 187 S.E.2d 299 (1972); Castleberry v. U.S. Fid. & Guar. Co., 126 Ga. App. 425, 190 S.E.2d 831 (1972); Barry v. Aetna Life & Cas. Co., 133 Ga. App. 527, 211 S.E.2d 595 (1974); Chancy v. Pope, 136 Ga. App. 826, 222 S.E.2d 667 (1975); Lumbermens Mut. Cas. Co. v. Amerine, 139 Ga. App. 702, 229 S.E.2d 516 (1976); West Point Pepperell, Inc. v. McEntire, 150 Ga. App. 728, 258 S.E.2d 530 (1979); Seitzingers, Inc. v. Barnes, 161 Ga. App. 855, 289 S.E.2d 315 (1982); Fountain v. Shoney's Big Boy, Inc., 168 Ga. App. 489, 309 S.E.2d 671 (1983); Dan River, Inc. v. Shinall, 186 Ga. App. 572, 367 S.E.2d 846 (1988); H & H Trucking Co. v. Davis, 190 Ga. App. 754, 380 S.E.2d 301 (1989); Thomas v. Helen's Roofing Co., 199 Ga. App. 161, 404 S.E.2d 331 (1991).

Willful Misconduct Generally

Finding of willful misconduct bars recovery.

- Once finding is made that claimant's injuries were caused by willful misconduct, compensation must be denied under this section. Hanover Ins. Co. v. Rollins, 136 Ga. App. 595, 222 S.E.2d 91 (1975).

"Willful misconduct" is more than mere negligence. Shiplett v. Moran, 58 Ga. App. 854, 200 S.E. 449 (1938).

- To constitute a violation of O.C.G.A. § 34-9-17 resulting in denial of compensation, there must be more than mere negligence in failing to obey some statute. Steed v. Liberty Mut. Ins. Co., 157 Ga. App. 273, 277 S.E.2d 278 (1981).

Negligence of employee, no matter how gross, will not bar compensation when injury is otherwise compensable. Lumbermen's Mut. Cas. Co. v. Lynch, 63 Ga. App. 530, 11 S.E.2d 699 (1940).

- General rule is that mere violations of instructions, orders, rules, ordinances, and statutes and the doing of hazardous acts, when the danger is obvious, do not, without more, as a matter of law, constitute willful misconduct. Shiplett v. Moran, 58 Ga. App. 854, 200 S.E. 449 (1938); Pacific Indem. Ins. Co. v. Eberhardt, 107 Ga. App. 391, 130 S.E.2d 136 (1963); Wilbro v. Mossman, 207 Ga. App. 387, 427 S.E.2d 857 (1993), for comment, see 26 Ga. B.J. 111 (1963).

- General rule is that mere violations of instructions, orders, rules, ordinances, and statutes, and the doing of hazardous acts when the danger is obvious, do not, without more, as a matter of law, constitute willful misconduct; such violations, failures, or refusals generally constitute mere negligence, and such negligence, however great, does not constitute willful misconduct or willful failure or refusal to perform a duty required by statute, and will not defeat recovery of compensation by an employee or an employee's dependents. Gooseby v. Pinson Tire Co., 65 Ga. App. 837, 16 S.E.2d 767 (1941); Armour & Co. v. Little, 83 Ga. App. 762, 64 S.E.2d 707 (1951); Merry Bros. Brick & Tile Co. v. Neely, 103 Ga. App. 616, 120 S.E.2d 137 (1961); Georgia Dep't of Pub. Safety v. Collins, 140 Ga. App. 884, 232 S.E.2d 160 (1970); Barry v. Aetna Life & Cas. Co., 133 Ga. App. 527, 211 S.E.2d 595 (1974); Terry v. Liberty Mut. Ins. Co., 152 Ga. App. 583, 263 S.E.2d 475 (1979).

When misconduct consists of a failure or refusal to perform a duty required by statute, a bare failure or refusal, without more, does not constitute a willful failure or refusal to perform such duty. Gooseby v. Pinson Tire Co., 65 Ga. App. 837, 16 S.E.2d 767 (1941); Pacific Indem. Ins. Co. v. Eberhardt, 107 Ga. App. 391, 130 S.E.2d 136 (1963), for comment, see 26 Ga. B.J. 111 (1963).

- When worker is acting within the scope of the worker's employment, mere disregard of a rule or order is not willful misconduct unless the disobedience is in fact willful or deliberate, and not a mere thoughtless act, done on the spur of the moment. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S.E. 208 (1929); Pullman Co. v. Carter, 61 Ga. App. 543, 6 S.E.2d 351 (1939).

- Misconduct is improper or wrong conduct, and when improper or wrong conduct is intentionally or deliberately done, it becomes willful misconduct. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S.E. 208 (1929).

Willful misconduct includes all conscious or intentional violations of definite law or rules of conduct, as distinguished from inadvertent, unconscious, or involuntary violations. Liberty Mut. Ins. Co. v. Perry, 53 Ga. App. 527, 186 S.E. 576 (1936); Shiplett v. Moran, 58 Ga. App. 854, 200 S.E. 449 (1938); Pullman Co. v. Carter, 61 Ga. App. 543, 6 S.E.2d 351 (1939); Herman v. Aetna Cas. & Sur. Co., 71 Ga. App. 464, 31 S.E.2d 100 (1944); U.S. Fid. & Guar. Co. v. Davis, 99 Ga. App. 45, 107 S.E.2d 571 (1959); Travelers Ins. Co. v. Gaither, 148 Ga. App. 251, 251 S.E.2d 66 (1978).

- Willful misconduct includes all conscious or intentional violations of definite law or rules of conduct, obedience to which is not discretionary, as distinguished from inadvertent, unconscious, or involuntary violations. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S.E. 208 (1929); Pullman Co. v. Carter, 61 Ga. App. 543, 6 S.E.2d 351 (1939); Armour & Co. v. Little, 83 Ga. App. 762, 64 S.E.2d 707 (1951); Georgia Dep't of Pub. Safety v. Collins, 140 Ga. App. 884, 232 S.E.2d 160 (1977); Home Indem. Co. v. White, 154 Ga. App. 225, 267 S.E.2d 846 (1980).

Willfulness contemplated by this section amounts to more than mere act of will, and carries with it the idea of premeditation, obstinacy, and intentional wrongdoing, so that the mere doing of a thoughtless act which does not constitute deliberate disobedience does not deprive one of compensation. Armour & Co. v. Little, 83 Ga. App. 762, 64 S.E.2d 707 (1951).

Meaning of "willful", as used in this section, included element of intractableness, the headstrong disposition to act by the rule of contradiction. Pullman Co. v. Carter, 61 Ga. App. 543, 6 S.E.2d 351 (1939).

- Willful misconduct is much more than mere negligence or even gross negligence; it 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. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S.E. 208 (1929); Gooseby v. Pinson Tire Co., 65 Ga. App. 837, 16 S.E.2d 767 (1941).

Statutory bar requires conduct of a criminal or quasi-criminal nature; negligent conduct, even though grossly so, does not equate with the former. Argonaut Ins. Co. v. Almon, 120 Ga. App. 869, 172 S.E.2d 624 (1969).

Willful misconduct, or willful failure or refusal to perform a duty required by statute, is more than negligence, or even gross negligence; it involves conduct of a criminal or quasi-criminal nature. Travelers Ins. Co. v. Gaither, 148 Ga. App. 251, 251 S.E.2d 66 (1978).

Commission of a crime by employee was "willful misconduct" within the meaning of this section, and the employer should not be required to pay compensation for the employee's injury or death, due to the employee's violation of a criminal statute, such violation being the proximate cause of the employee's injury or death. Hall v. Kendall, 81 Ga. App. 592, 59 S.E.2d 421 (1950), for comment, see 13 Ga. B.J. 245 (1950); Pacific Indem. Ins. Co. v. Eberhardt, 107 Ga. App. 391, 130 S.E.2d 136 (1963), for comment, see 26 Ga. B.J. 111 (1963); Liberty Mut. Ins. Co. v. Bray, 136 Ga. App. 587, 222 S.E.2d 70 (1975).

Employee who commits a crime and is thereby injured or killed, its commission being the proximate cause of the employee's injury or death, is guilty of willful misconduct; and when an employee fails or refuses to perform a duty required by statute, such failure or refusal constituting a crime, the employee is guilty of willful failure or refusal. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S.E. 208 (1929).

While generally mere violation of a statute is negligence, if such statute is a penal statute, and its violation is a crime, the transaction loses its character of negligence, and becomes "willful misconduct" within the meaning of this section. Gooseby v. Pinson Tire Co., 65 Ga. App. 837, 16 S.E.2d 767 (1941); Pacific Indem. Ins. Co. v. Eberhardt, 107 Ga. App. 391, 130 S.E.2d 136 (1963), for comment, see 26 Ga. B.J. 111 (1963).

Willful and conscious doing of an act which was in violation of a penal statute constitutes willful misconduct, and when the violation of such penal statute by an employee is the proximate cause of the employee's injury or death, compensation was barred under this section. Pacific Indem. Ins. Co. v. Eberhardt, 107 Ga. App. 391, 130 S.E.2d 136 (1963), for comment, see 26 Ga. B.J. 111 (1963).

Violation of a penal statute was "willful misconduct"; however, the violation must be the proximate cause of the injury or death, and the burden was on the one who claimed an exemption or forfeiture under this section. Smith v. Liberty Mut. Ins. Co., 111 Ga. App. 616, 142 S.E.2d 459 (1965).

Some willful acts may bar recovery even if they are not criminal acts. Merry Bros. Brick & Tile Co. v. Neely, 103 Ga. App. 616, 120 S.E.2d 137 (1961).

- This section does not define the meaning of willful misconduct, but rather, specifies certain instances thereof; this enumeration is not intended to be exhaustive of acts constituting willful misconduct, and many other things besides those enumerated may constitute willful misconduct. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S.E. 208 (1929).

- Burden of establishing defense that claimant's disability resulted from claimant's own willful misconduct is on employer. Borden Co. v. Dollar, 96 Ga. App. 489, 100 S.E.2d 607 (1957).

Defense is provided for employer if such injury or death resulted from employee's willful misconduct growing out of the employee's attempt to injure another, but employer must carry the burden of proof to establish this defense. Hartford Accident & Indem. Co. v. Cox, 101 Ga. App. 789, 115 S.E.2d 452 (1960).

Burden of proof is upon employer who claims that compensation is not payable because of employee's willful misconduct. American Fire & Cas. Co. v. Gay, 104 Ga. App. 840, 123 S.E.2d 287 (1961).

Burden of proving that employee's "willful misconduct" was proximate cause of injury is on employer. Home Indem. Co. v. White, 154 Ga. App. 225, 267 S.E.2d 846 (1980).

- To require employer to show that employee thought of statute and deliberated as to its breach would take away defense of willful violation, and would unduly limit the scope or definition of willful misconduct. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S.E. 208 (1929).

- Employee, who may have violated a statute when the employee dispensed gasoline from a pump into a cup, did not engage in willful misconduct when, although the employee was burned when the employee used the gasoline to light a fire, the result was involuntary, unintentional, and negligent, not conscious or intentional. Roy v. Norman, 261 Ga. 303, 404 S.E.2d 117 (1991).

- Mere violation by employee of criminal statute prescribing rules and regulations in regard to traffic upon a public highway cannot amount to willful misconduct or willful failure or refusal to perform a duty required by statute so as to bar compensation under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Standard Accident Ins. Co. v. Pardue, 39 Ga. App. 87, 146 S.E. 638 (1928).

Evidence of excessive speed, standing alone, is not enough to establish willful and wanton misconduct. Georgia Dep't of Pub. Safety v. Collins, 140 Ga. App. 884, 232 S.E.2d 160 (1977).

Showing of negligence, in driving too fast under the circumstances, did not establish that public officer, presumptively aware of the officer's obligation to obey the law, willfully violated the very law the officer was obligated to uphold. Georgia Dep't of Pub. Safety v. Collins, 140 Ga. App. 884, 232 S.E.2d 160 (1977).

Driving car at 60 or 65 miles per hour was not such willful and wanton conduct as is essential before denial of recovery because of a speed violation. Adams v. U.S. Fid. & Guar. Co., 125 Ga. App. 232, 186 S.E.2d 784 (1971).

- When claimant was injured as a result of the overturning of a vehicle being operated by claimant, and the sole evidence as to speed was that claimant was operating the automobile at a speed of approximately 100 miles per hour after being requested to slow down by a fellow employee who was riding with claimant, the award denying compensation because of willful misconduct was authorized. Young v. American Ins. Co., 110 Ga. App. 269, 138 S.E.2d 385 (1964).

- When claimant's spouse died of a heart attack while on the job, having been advised by a physician following an earlier diagnosis of angina pectoris and coronary insufficiency that the decedent could continue to drive a truck in the decedent's employment if the decedent felt like it, decedent's failure to notify the employer of decedent's heart condition and continuing to drive a loaded truck with knowledge of decedent's condition did not amount to such "willful misconduct" as to bar a claim for compensation. Merry Bros. Brick & Tile Co. v. Neely, 103 Ga. App. 616, 120 S.E.2d 137 (1961).

- When employee, while riding on the fender of a truck, was thrown off by the swerving of the truck and was killed, although the employee had been ordered by the driver, with authority from the employer, not to ride there, an inference was authorized that the employee's death was caused by negligence of the employee or of the employer, and not by willful misconduct on the employee's part. Integrity Mut. Cas. Co. v. Jones, 33 Ga. App. 489, 126 S.E. 876 (1925).

- In a claim against the city by an employee of the hospital laundry for compensation under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) for injury which resulted in amputation of claimant's finger following infection caused by needle sticking into claimant's finger while claimant was handling clothes in discharge of claimant's duties, although assuming as contended by the city that the infection was due to claimant's refusal to accept immediate medical or surgical treatment which was offered claimant, the injury was not caused by a willful act of claimant as would bar claimant from compensation. City Council v. Butler, 50 Ga. App. 838, 179 S.E. 149 (1935).

- Decision denying a claimant workers' compensation benefits based on a positive drug screen was reversed because the employer failed to establish that a person authorized under O.C.G.A. § 34-9-415 to collect the sample was authorized and, thus, was fatal to the employer's ability to rely upon the rebuttable presumption in O.C.G.A. § 34-9-17(b)(2). Lingo v. Early County Gin, Inc., 346 Ga. App. 92, 816 S.E.2d 54 (2018), cert. denied, No. S18C1402, 2019 Ga. LEXIS 27 (Ga. 2019).

- No "willful misconduct" could be attributed to employee's unwise use of a loaded pistol to hammer an engine part in an effort to make automobile run to enable the employee to use it in covering extensive area of the city's cemetery. City of Atlanta v. Madaris, 130 Ga. App. 783, 204 S.E.2d 439 (1974).

- Knowledge by employer, through employee's immediate supervisor, of regular and continued possession of pistol in performance of employee's duties as night watchman, and supervisor's condonation of such possession on city property, was sufficient to remove case from bar of willful misconduct. City of Atlanta v. Madaris, 130 Ga. App. 783, 204 S.E.2d 439 (1974).

- Although there was a rule or regulation known to deceased employee prohibiting employees from wearing their jackets or jumpers loose and the tails thereof outside of the pants, it was clearly inferable from the evidence that the act of deceased in wearing deceased's jacket or jumper with the tail exposed, as it was when deceased went under the shaft and was caught in it, receiving fatal injury, was a mere act of negligence and not an act of willful misconduct. Shiplett v. Moran, 58 Ga. App. 854, 200 S.E. 449 (1938).

- When employee was hired as a nurse's aide by the employer without having disclosed a prior injury to the aide's back, although the aide had been asked if the aide had such an occurrence in the aide's past employment history, the aide's misstatements in securing employment were too attenuated to be considered as fraud in the procurement of an award of compensation, and the aide's willful misconduct was too remote to constitute the proximate cause of the aide's subsequent injury to the aide's back so as to bar the aide's claim under O.C.G.A. § 34-9-17. Ledbetter v. Pine Knoll Nursing Home, 180 Ga. App. 654, 350 S.E.2d 299 (1986).

Self-Inflicted Injury

Self-inflicted injury due to disturbance caused by work-related injury not "intentional."

- When original work-connected injuries suffered by employee resulted in the employee becoming devoid of normal judgment and dominated by disturbance of mind directly caused by the employee's injury and its consequences, such as severe pain and despair, self-inflicted injury by employee cannot be considered intentional. Bullington v. Aetna Cas. & Sur. Co., 122 Ga. App. 842, 178 S.E.2d 901 (1970), rev'd on other grounds, 227 Ga. 485, 181 S.E.2d 495 (1971), for comment, see 8 Ga. St. B.J. 107 (1971).

- One whose mind has become devoid of normal judgment and dominated by a mental disorder caused by a work-connected injury cannot be said to have "willfully" committed an act of self-destruction within the meaning of this section. McDonald v. Atlantic Steel Co., 133 Ga. App. 157, 210 S.E.2d 344 (1974).

- If it can be clearly shown that but for accident employee would not have committed suicide and that the employee was driven to take the employee's life by the injury inflicted, then this section would not be an insuperable barrier to recovery. McDonald v. Atlantic Steel Co., 133 Ga. App. 157, 210 S.E.2d 344 (1974).

Although suicide is by definition self-inflicted, suicide does not ipso facto preclude compensation when injury is its proximate cause, that is, when it is caused by severe pain and despair proximately resulting from the accident, sufficient to cause a disturbance of the mind and the overriding of normal judgment to the extent that the act, although "purposeful" is found to be not "intentional." McDonald v. Atlantic Steel Co., 133 Ga. App. 157, 210 S.E.2d 344 (1974).

- In terms of proximate cause, pattern of progressive alcoholism falls within intentionally self-inflicted injury category of this section rather than "intoxication." Bullington v. Aetna Cas. & Sur. Co., 122 Ga. App. 842, 178 S.E.2d 901 (1970), rev'd on other grounds, 227 Ga. 485, 181 S.E.2d 495 (1971);for comment, see 8 Ga. St. B.J. 107 (1971).

When medical cause of death was due to alcoholism, which in turn was allegedly brought on by a work-connected injury, defense may be raised under this section that this was an intentionally self-inflicted injury. Bullington v. Aetna Cas. & Sur. Co., 122 Ga. App. 842, 178 S.E.2d 901 (1970), rev'd on other grounds, 227 Ga. 485, 181 S.E.2d 495 (1971), for comment, see 8 Ga. St. B.J. 107 (1971).

Attempt to Injure Another

Compensation barred when claimant is aggressor.

- When claimant is injured in an attack by another employee, claimant must not have been the aggressor. State v. Purmort, 143 Ga. App. 269, 238 S.E.2d 268 (1977).

- Claimant is not entitled to compensation when injury to deceased employee was the result of a fight between the deceased and a fellow employee in which deceased employee was the aggressor, as in such a case the injury was not an accident arising out of the employment within the meaning of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Liberty Mut. Ins. Co. v. Reed, 56 Ga. App. 68, 192 S.E. 325 (1937).

Intoxication

"Intoxication" defined.

- "Intoxication" is a condition in which one is under the influence of intoxicating liquors to the extent that one is not entirely oneself, or one's judgment is impaired, and one's acts, words, or conduct are visibly and noticeably affected. Parks v. Maryland Cas. Co., 69 Ga. App. 720, 26 S.E.2d 562 (1943); Fidelity & Cas. Co. v. Hodges, 108 Ga. App. 474, 133 S.E.2d 406 (1963).

Intoxication does not consist merely in having partaken of intoxicating liquor, or in being to some extent under the influence of it. Parks v. Maryland Cas. Co., 69 Ga. App. 720, 26 S.E.2d 562 (1943).

Intoxication which produces injury must be that of employee personally. Home Indem. Co. v. White, 154 Ga. App. 225, 267 S.E.2d 846 (1980).

- Injury due to intoxication is, as a matter of definition, injury due to willful misconduct; and once a finding is made that death was due to intoxication, which finding is sufficiently supported by the evidence, compensation must be denied. Reynolds v. Georgia Ins. Co., 149 Ga. App. 162, 253 S.E.2d 839 (1979).

Accident resulting in injury proximately caused by claimant's intoxication does not arise out of employment, although occurring during the course of the employment. Stephens v. Hartford Accident & Indem. Co., 116 Ga. App. 15, 156 S.E.2d 100 (1967).

- Burden was upon employer to establish that death of claimant's spouse was due to the spouse's intoxication, and it was not sufficient to show merely that the spouse was intoxicated, but rather, it was essential, in order to constitute a bar to compensation, to show that the spouse's death was caused by the spouse's intoxication, and that intoxication was the proximate cause of death. General Accident Fire & Life Assurance Corp. v. Prescott, 80 Ga. App. 421, 56 S.E.2d 137 (1949).

Burden is on one who claims an exemption or forfeiture to show that intoxication was the proximate cause of the injury or death of employee. Fidelity & Cas. Co. v. Hodges, 108 Ga. App. 474, 133 S.E.2d 406 (1963).

- Determination as to whether employee was intoxicated and whether the employee's intoxication was a proximate cause of the employee's injury is required by law before denying compensation. Bloodworth v. Continental Ins. Co., 151 Ga. App. 576, 260 S.E.2d 536 (1979).

- Findings of fact of State Board of Workers' Compensation are conclusive, and when the board failed to make a determination as to whether the defendant's alleged intoxication was a proximate cause of the injury, neither trial court nor appellate court could make that determination. Bloodworth v. Continental Ins. Co., 151 Ga. App. 576, 260 S.E.2d 536 (1979).

- When the only evidence respecting drinking of intoxicating liquors by deceased consisted in testimony of a friend to the effect that the deceased, when the friend first saw the deceased, had been drinking but had not had more than one drink, that the deceased later took two small drinks, and that this liquor did not cause the deceased to become drunk or in any way impair the deceased's faculties, and in testimony of a doctor that deceased suffered from alcoholism, and that alcohol could be smelled on the deceased's breath, but that the doctor could not say that deceased was drunk, the evidence was not sufficient to authorize the conclusion that the deceased was in a state of intoxication at the time of the fatal accident. Parks v. Maryland Cas. Co., 69 Ga. App. 720, 26 S.E.2d 562 (1943).

- Workers' Compensation Board was authorized to find employee acted in willful misconduct in driving with a blood alcohol level of .23 percent, proceeding the wrong way onto an exit ramp marked with signs indicating that the employee was going the wrong way, and then driving southbound for approximately 11.5 miles in the northbound lane of an interstate highway and in determining the employee's death resulting from a head-on automobile collision was not compensable. Communications, Inc. v. Cannon, 174 Ga. App. 820, 331 S.E.2d 112 (1985).

Safety Appliances

Meaning of "safety appliance."

- Any instrumentality provided by master for use by employee in operation of machine, use of which, in operation of the machine, would reduce danger or hazard to employee from machine's operation, was a "safety appliance" within the meaning of this section. Liberty Mut. Ins. Co. v. Perry, 53 Ga. App. 527, 186 S.E. 576 (1936); Herman v. Aetna Cas. & Sur. Co., 71 Ga. App. 464, 31 S.E.2d 100 (1944).

- "Safety appliance", within the meaning of this section, was not necessarily an appliance physically attached to or physically connected with the machine from the use of which the injury arose. Liberty Mut. Ins. Co. v. Perry, 53 Ga. App. 527, 186 S.E. 576 (1936).

- Mere intentional and voluntary failure to use a proper safety appliance does not necessarily make the act willful; willfulness contemplated amounts to more than a mere act of the will, and carries with it the idea of premeditation, obstinacy, and intentional wrongdoing. Pullman Co. v. Carter, 61 Ga. App. 543, 6 S.E.2d 351 (1939).

- When safety appliance provided by master is located in proximity to the machine and is easily accessible to employee operating the machine, and its location is known to the employee, and the employee has received specific instructions not to operate the machine without use of such appliance, operation of the machine by an employee without use of the appliance constitutes a willful failure or refusal to use the safety appliance; and when the employee is injured in operation of the machine by reason of not having used the appliance, the employee is barred the right to compensation. Liberty Mut. Ins. Co. v. Perry, 53 Ga. App. 527, 186 S.E. 576 (1936); Herman v. Aetna Cas. & Sur. Co., 71 Ga. App. 464, 31 S.E.2d 100 (1944).

- Employee was not excused from complying with requirements for use of rubber gloves and boots in starting, operating, or working upon or about electric motors using high voltages, upon a theory that the employee was confronted with a sudden necessity or emergency or acted inadvertently, unconsciously, or involuntarily, when it appeared that within close proximity of the place of the employee's electrocution both gloves and boots were accessible and available for the employees, and that the employee had constantly stressed upon the employee's subordinates the danger of working with the motors without using the safety articles. Herman v. Aetna Cas. & Sur. Co., 71 Ga. App. 464, 31 S.E.2d 100 (1944).

- Employee was not excused from complying with requirements for use of rubber gloves and boots in starting, operating, or working upon or about electric motors using high voltages by reason of the fact that the employee, as superintendent, promulgated and enforced such requirements. Herman v. Aetna Cas. & Sur. Co., 71 Ga. App. 464, 31 S.E.2d 100 (1944).

- When conduct of employee may be a conscious and intentional violation of a known rule so as to constitute willful misconduct, or may be merely inadvertent or an involuntary violation so as to constitute negligence only, decision of the board on the point must be honored by the appellate court. North Ga. Technical & Vocational Sch. v. Boatwright, 144 Ga. App. 66, 240 S.E.2d 563 (1977).

In interpreting this section as to use of safety appliances, the court should give it a reasonable interpretation and should give the words thereof their usual and most known signification, not so much regarding the propriety of grammar, as their general and popular use. Pullman Co. v. Carter, 61 Ga. App. 543, 6 S.E.2d 351 (1939).

Violation of rule which is not approved by the board is not willful misconduct. Liberty Mut. Ins. Co. v. Scoggins, 72 Ga. App. 263, 33 S.E.2d 534 (1945) (decided prior to 1996 amendment).

- Although at the time of fatal injury employee was riding on fender of truck, when the employee had voluntarily placed oneself after having been warned of the danger and although employer had issued a rule to the effect that the employees riding upon the truck should not ride in such position, yet when such rule had not been approved by the commission (now the board), employee was not barred from a recovery of compensation by reason of any breach by the employee of the rule, since such bar applies only when the rule has the approval of the commission (board). Integrity Mut. Cas. Co. v. Jones, 33 Ga. App. 489, 126 S.E. 876 (1925) (decided prior to 1996 amendment).

- Any rule governing the safety of money and valuables would not be approved by the commission (now the board), as the commission (board) would regard these rules as outside the limitations of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), since rules governing the safety of money in no way tend to prevent industrial accidents. Southeastern Express Co. v. Edmondson, 30 Ga. App. 697, 119 S.E. 39 (1923) (decided prior to 1996 amendment).

RESEARCH REFERENCES

Am. Jur. 2d.

- 82 Am. Jur. 2d, Workers' Compensation, §§ 576, 635 et seq.

- 100B C.J.S., Workers' Compensation, § 1454 et seq.

- Serious and willful misconduct of employee as bar to compensation, 4 A.L.R. 116.

Workmen's compensation: compensation to workmen injured through smoking, 5 A.L.R. 1521.

Presumption against suicide in workmen's compensation cases, 5 A.L.R. 1680; 36 A.L.R. 397.

Workmen's compensation: provision denying compensation for injury through willful failure to use guard, or safety appliance, 9 A.L.R. 1377.

Workmen's compensation: right to compensation in case of injuries sustained through horseplay, or fooling, 13 A.L.R. 540; 20 A.L.R. 882; 36 A.L.R. 1469; 43 A.L.R. 492; 159 A.L.R. 319.

Workmen's compensation: injury from assault, 15 A.L.R. 588; 21 A.L.R. 758; 29 A.L.R. 437; 40 A.L.R. 1122; 72 A.L.R. 110; 112 A.L.R. 1258; 172 A.L.R. 997.

Workmen's compensation: injury received while doing prohibited act, 23 A.L.R. 1161; 26 A.L.R. 166; 58 A.L.R. 197; 83 A.L.R. 1211; 119 A.L.R. 1409.

Workmen's compensation: injury to employee temporarily leaving car or vehicle of employer for reasons personal to himself, 32 A.L.R. 806.

Presumption against suicide in workmen's compensation cases, 36 A.L.R. 397.

Workmen's compensation: effect of employee's intoxication, 43 A.L.R. 421.

Workmen's compensation: right of employee to compensation for injuries received while acting in an emergency, 50 A.L.R. 1148.

Workmen's compensation: neglect or improper self-treatment as affecting right to or amount of compensation, 54 A.L.R. 637.

Workmen's compensation: employee temporarily engaged in personal business, 66 A.L.R. 756.

Workmen's compensation: deviation on personal errand as affecting question whether injury to employee on street or highway arose out of and in the course of employment, 76 A.L.R. 356.

Workmen's compensation: presumption or inference that accidental death of employee arose out of and in course of employment, 120 A.L.R. 683.

Workmen's compensation: injury or death of employee resulting from conduct of one to whom he had delegated performance of his duty, 148 A.L.R. 708.

Workmen's compensation: what amounts to "culpable negligence," or negligence other than "wilful," or "serious and wilful misconduct," within provision of act precluding compensation, 149 A.L.R. 1004.

Suicide as compensable under Workmen's Compensation Act, 15 A.L.R.3d 616.

Workers' compensation: injuries incurred during labor activity, 61 A.L.R.4th 196.

Eligibility for workers' compensation as affected by claimant's misrepresentation of health or physical condition at the time of hearing, 12 A.L.R.5th 658.

Workers' compensation: coverage of employee's injury or death from exposure to the elements - modern cases, 20 A.L.R.5th 346.

Violation of employment rule barring claim for workers' compensation, 61 A.L.R.5th 375.

Right to workers' compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli - Right to compensation under particular statutory provisions and requisites of, and factors affecting, compensability, 109 A.L.R.5th 161.

Right to workers' compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli - Compensability of particular physical injuries or illnesses, 112 A.L.R.5th 509.

Compensability under occupational disease statutes of emotional distress or like injury suffered by claimant as result of nonsudden stimuli, 113 A.L.R.5th 115.

Right to workers' compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli - Requisites of, and factors affecting, compensability, 13 A.L.R.6th 209.

Workers' compensation: Validity, construction, and application of statutes providing that worker who suffers workplace injury and subsequently tests positive for alcohol impairment or illegal drug use is not eligible for workers' compensation benefits, 22 A.L.R.6th 329.