Safety and OSHA News

Employee disobeyed supervisor and was injured; can he get workers’ comp?

An employee disregarded instructions given to him by his supervisor, and as a result was seriously injured. The employee filed for workers’ comp benefits, and his employer denied the claim. How did a court rule in this case? 

Adrian Burdette was employed as a cell-tower technician by Chandler Telecom. The company required all of its cell-tower technicians to become ComTrain certified. Burdette was asked if he was ComTrain certified, and he lied and said he had his certificate.

On Nov. 5, 2012, Burdette was assigned to work on a cell tower. The supervisor of a six-person crew that included Burdette told the workers to climb down the towers and not to use controlled descent.

When the lead-tower-hand of the crew, Brian Prejean, told Burdette to climb down the tower at the end of the work day, Burdette said he wanted to use controlled descent instead.

Prejean told Burdette at least two more times to climb down and not use controlled descent. Prejean recounted his conversation with Burdette:

“I told him no, man, just climb down … we don’t have a safety rope up here for you to grab. He told me he had done this so many times. I was like, dude, they’re going to be mad if you do it … you might not have a job or you might have to deal with the consequences if you don’t listen.”

But Burdette used controlled descent anyway. On the way down, Burdette fell a great distance from the tower and landed on ice which caused serious injuries to his ankle, leg and hip.

Prejean said Burdette had the required equipment for climbing down, but not for controlled descent.

Burdette applied for workers’ comp benefits. He was denied benefits and appealed to the Georgia Board of Workers’ Compensation.

An administrative law judge found Burdette was barred from receiving comp benefits because he engaged in “willful misconduct” as defined by the state’s workers’ comp law. The decision was affirmed by the Board, and Burdette appealed to a state court.

Ignoring safety not the same as willful misconduct

Burdette argued that his actions didn’t amount to willful misconduct. The appeals court agreed with him.

Georgia’s workers’ comp law says “no compensation shall be allowed for an injury or death due to the employee’s willful misconduct,” but the law doesn’t define “willful misconduct.”

Previous Georgia court cases have defined willful misconduct this way:

“Mere violation of rules, when not willful or intentional, is not willful misconduct with in the meaning of the laws upon the subject of workmen’s compensation. There must be something more than thoughtlessness … There must be a willful breach of the rule or order … willful misconduct 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 probably consequences.”

In its decision, the appeals court noted Burdette “intentionally violated a work rule,” and “engaged in a hazardous act in which the danger was obvious.” But “his conduct was not of a quasi-criminal nature.”

The court noted Burdette and other cell-tower technicians had successfully used controlled descents in the past. Chandler even required its technicians to learn controlled descent because it’s necessary sometimes for rescues.

Therefore, the court said, Chandler hadn’t met its burden to prove that this was a case of willful misconduct. The court reversed the previous decision, saying Burdette should receive workers’ comp benefits.

What do you think about the court’s ruling? Let us know in the comments.

(Burdette v. Chandler Telecom LLC, Court of Appeals of Georgia, Third Division, No. A15A1423, 10/30/15)

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Comments

  1. When you read the courts previous definition of “willful misconduct”, I don’t see how they could have sided with the employee. He was told several times by his supervisor not to do it, and was even told he did not have the proper safety equipment to do it. For the employee to do it anyway is ridiculous to say it wasn’t “willful”, even with that ridiculous “quasi-criminal” stipulation.
    If there had been an OSHA rep on site who witnessed it then it may have ended up with fines or other penalties, doesn’t that make it “quasi-criminal” if not outright criminal?
    I definitely disagree with this court.

    • I agree. He was told several times not to use the controlled decent – there was a conversation immediately prior to him doing the action even. He ‘willfully’ ignored direct instruction from his supervisor, meaning that it was not a case of thoughtlessness. This directly put his company in the way of fines and monetary loss for his actions and least of all, he should be fired for insubordination. Sure hope the company appeals this.

  2. if he was trained and had done it so many times like he said then his act was willful. his supervisor’s statement was “I told him no, man, just climb down … we don’t have a safety rope up here for you to grab” then his training should have told him that it was not ok to do this. He also lied about credentials which shows willful intent.

  3. I agree. His actions were not only “willful” but premeditated. He was going to do it his way. Unfortunately the court apparently did not understand the literal meaning of “willful.”

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