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                              http://www.gaappeals.us/rules/


                                                                      July 16, 2014




In the Court of Appeals of Georgia
 A14A0265. CHAMBERS v. MONROE COUNTY BOARD OF
     COMMISSIONERS.

      BOGGS, Judge.

      We granted claimant Pamela Chambers’ discretionary application in this

workers’ compensation case because it appeared that additional precedent in this area

would benefit the bench and bar, and for a review of the entire record to ensure that

the facts supported the Board’s findings. After considering the record, including the

claimant’s testimony, and given the deferential standard of review, the Board’s

finding that Chambers’ injury was not compensable because it was “idiopathic” – that

is, not “arising out of” her employment – was supported by some evidence and

therefore must be affirmed.

      When reviewing awards in workers’ compensation cases, both the
      appellate court and the superior court must construe the evidence in the
      light most favorable to the party prevailing before the appellate division
      of the State Board of Workers’ Compensation. It is axiomatic that the
      findings of the State Board of Workers’ Compensation, when supported
      by any evidence, are conclusive and binding.


(Citation, punctuation, and footnote omitted.) Medical Office Mgmt. v. Hardee, 303

Ga. App. 60, 61 (693 SE2d 103) (2010). So viewed, the evidence shows that on

January 27, 2012, Pamela Chambers was employed as an firefighter/EMT for Monroe

County. After returning from a call to the fire station, she sat down at a desk to

complete some paperwork and then remained at the desk watching television. Her

supervisor asked her to get up from the desk so that he could use it. When she rose

from her chair, Chambers felt and heard a “pop” in her left knee. She continued to

work, but as the pain increased she went to the emergency room. She had to have

knee surgery and will probably have to have a knee replacement.

      The ALJ found the injury compensable on the basis that Chambers was

required to be in the location where she was injured and was following her

supervisor’s orders. The employer appealed, and the Appellate Division vacated the

ALJ’s award. It found “no evidence that the Employee slipped, tripped, or fell or

came in contact with any object or hazard that increased her risk of injury,” but that

she simply rose from a seated position. The Appellate Division therefore concluded

                                          2
that Chambers had failed to show a causal connection between her employment and

her injury or that her injury arose out of her employment. The superior court affirmed,

noting the deference it was required to give the findings of the Appellate Division,

and finding that some evidence in the record supported the award. From this

judgment, Chambers appeals.

      The legal standard governing whether an injury “arises out of” employment is

well established. In Chaparral Boats, Inc. v. Heath, 269 Ga. App. 339 (606 SE2d

567) (2004), a twelve-judge whole court decision1, we held:

      Where the injury would have occurred regardless of where the employee
      was required to be located, and results from a risk to which the
      employee would have been equally exposed apart from any condition of
      the employment, there is no basis for finding a causal connection
      between the employment and the injury, and no basis for compensation
      under the positional risk doctrine. The general rule still applies that the
      injury does not arise out of the employment where the causative danger
      is not “peculiar to the work” in a way that causally connects the
      employment to the injury.


(Citations omitted.) Id. at 343. In Chaparral Boats, Heath was walking “at a quicker

than normal pace” across her employer’s parking lot in order to get to work on time

      1
       Three judges concurred specially, agreeing with the result but contending that
an earlier case need not be overruled. 269 Ga. App. at 349-350.

                                          3
when she “felt popping and pain in her left knee.” Id. at 339. “[T]he ALJ found upon

review of the evidence that Heath’s knee injury was not the result of a slip, trip, fall,

or contact with any object, and that there was no evidence Heath claimed any

particular cause. The evidence showed that, when the knee injury occurred, Heath

was simply walking at a pace of her own choosing.” Id. at 344 (1). Accordingly, we

reversed the superior court’s order concluding that the Board erred in denying

benefits because the injury did not arise out of Heath’s employment. Id. at 348.

      Similarly, in St. Joseph’s Hospital v. Ward, 300 Ga. App. 845 (686 SE2d 443)

(2009), a nurse injured her knee when she turned to get a cup of water for a patient.

Id. at 846. The Appellate Division found that “the employee was not exposed to any

risk unique to her employment by standing and turning, and that, in turning, she did

not come into contact with any object or hazard of employment.” Id. at 847. Once

again, we reversed the superior court for substituting its judgment for that of the

Board. Id. at 848 (1).

      At the hearing, Chambers testified that she did not get up from her chair in an

unusual manner. She offered no testimony to establish any causal connection between

her employment and her injury: for example, that the chair or desk configuration

caused her to lose her balance or strain to reach a standing position, that a work-

                                           4
related emergency such as a fire alarm caused her to jump out of the chair in a hurried

manner, or that she came in contact with any object or hazard such as the desk, stairs,

or a piece of equipment.

      Chambers relies almost exclusively upon Harris v. Peach County Bd. of

Comm’rs, 296 Ga. App. 225 (674 SE2d 36) (2009), arguing that we should apply

across the board that case’s affirmance of the Appellate Division’s finding that the

employee’s activity arose out of employment. In Harris, the claimant, a custodian,

dropped a pill on the floor. She injured her knee when she bent over to pick it up after

her supervisor pointed it out to her. Id. at 226. The Board concluded that picking up

objects from the floor was part of the claimant’s duties as a custodian, but the

superior court reversed, concluding that her injury arose solely from her obesity,

which placed unusual strain on her knee. Id. at 226-227. We reversed the superior

court’s judgment, observing:

      [T]he operative question is whether the claimant performed the activity
      in furtherance of her job duties, and this is a question of fact that is
      committed to the factfinder at the administrative level. In Chaparral
      Boats, the factfinder found that under the circumstances walking did not
      constitute an employment function, and we deferred to that finding. In
      this case, the factfinder found that under the circumstances bending over
      to pick up an object, even though it was the claimant’s personal

                                           5
      medication, did constitute an employment function, and, again, we defer
      to that finding because the fact-finding body must in each case remain
      the final arbiter of the compensability of the injury and of whether the
      claimant’s disability arose out of the employment as well as in the
      course of it.


(Citations, punctuation, and footnotes omitted; emphasis supplied.) Id. at 228-229.2

      While the dissent asserts that we nevertheless may review de novo the findings

of the Board in the case before us, the cases cited do not support the assertion that the

Board’s determination of whether an injury “arises out of” employment is subject to

de novo review. In Renu Thrift Store v. Figueroa, 286 Ga. App. 455 (649 SE2d 528)

(2007), the compensability of an injury was not at issue. In deciding the appropriate

benefits and penalties due a claimant after a unilateral suspension of benefits by the

employer, we construed three statutory provisions of the Workers’ Compensation Act

governing a statute of repose, a penalty for delayed payment by the employer, and the

award of attorney fees. And in Thornton v. Hartford Accident &c. Co., 198 Ga. 786

(32 SE2d 816) (1945), our Supreme Court reversed this court and applied the broad

      2
       The dissent is incorrect in asserting that a request or order from a supervisor
renders a claim compensable as a matter of law, and we did not rely upon such a
principle in Harris. There, as here, we explicitly deferred to the Board on the mixed
question of law and fact as to whether an injury arose out of the claimant’s
employment.

                                           6
“traveling salesman” rule to uphold the original finding of the Board, affirmed by the

superior court, that the claimant’s death from slipping on a wet street arose in the

course of his employment. The court observed, “It has been so repeatedly held that

where there is any competent evidence to sustain a finding by the board such finding

is conclusive and binding on a reviewing court, that no citations are deemed

necessary.” Id. at 792. It held that the Board’s original finding that the injury arose

out of the claimant’s employment “was authorized, and we think demanded, since the

facts were undisputed.” Id. at 795. It did not apply the principle of de novo review to

overturn the Board’s finding as to a mixed issue of law and fact, as to which

deference to the Board’s findings is required as in Chapparral Boats and St. Joseph’s.

      It is for this reason that Harris (which found that an injury was compensable)

and Chaparral Boats and St. Joseph’s (which found that it was not), present no

question of law for de novo review. All are consistent in holding that the superior

courts (and this court) may not substitute their judgment for that of the Board on the

question of whether an injury arose out of the claimant’s employment. To hold

otherwise would work a dramatic alteration in our long-standing “any evidence” rule

in this regard.



                                          7
      An injury arises out of one’s employment where there is a causal
      connection between the employment and the injury. The claimant carries
      the burden of establishing causation. Factual questions concerning
      causation are properly left to the State Board to determine rather than to
      the superior court or the appellate courts, and the Board’s findings must
      be affirmed if there is any evidence to support them.


(Citations and punctuation omitted.) Hughston Orthopedic Hosp. v. Wilson, 306 Ga.

App. 893, 895 (1) (703 SE2d 17) (2010). There, we reversed the superior court

because some evidence supported the Board’s finding that the employee had not

suffered a compensable work-related injury.

      Here, there was some evidence to support the Board’s determination that

Chambers’ injury had no causal connection to her employment, and we may not

disturb it. We therefore affirm the judgment of the superior court.

      Judgment affirmed. Ellington, P. J., Doyle, P. J., Dillard and Branch, JJ.,

concur. Barnes, P. J., and Miller, J., dissent.




                                        8
 A14A0265. CHAMBERS v. MONROE COUNTY BOARD OF

       COMMISSIONERS.

      BARNES, Presiding Judge, dissenting.

      Pamela Chambers injured her knee when her supervisor directed her to get up

from a desk so that he could complete some paperwork. In this context, where the

undisputed evidence shows that the employee was injured while undertaking a

physical activity at the express direction of her supervisor, the injury arose out of and

in the course of the employment as a matter of law, and the employee should receive

workers’ compensation benefits. Because the majority concludes otherwise, I must

respectfully dissent.

      “The Workers’ Compensation Act in Georgia is intended to have broad

application so as to cover a wide variety of injuries and the pain and suffering

incident to such injuries.” Hennly v. Richardson, 264 Ga. 355, 355-356 (1) (444

SE2d 317) (1994). It is “highly remedial in nature” and “must be construed liberally

in favor of the claimant in order to accomplish its beneficent purposes.” (Citation and

punctuation omitted.) CGU Ins.Co. v. Sabel Indus., 255 Ga. App. 236, 243 (2) (564

SE2d 836) (2002). See Gassaway v. Precon Corp., 280 Ga. App. 351, 354 (634 SE2d

153) (2006) (workers’ compensation system is “designed especially to protect

                                           2
workers injured in the course of their work”). We must always bear these principles

in mind when analyzing whether an accidental injury is compensable under the Act.

      An accidental injury is compensable under the Workers’ Compensation Act if

the employee’s injury arose out of and in the course of her employment. See OCGA

§ 34-9-1 (4); Hughston Orthopedic Hosp. v. Wilson, 306 Ga. App. 893, 895 (1) (703

SE2d 17) (2010). “These are two independent and distinct criteria, and an injury is

not compensable under the Act unless it satisfies both.” (Citation and punctuation

omitted.) Dixie Roadbuilders v. Sallett, 318 Ga. App. 228, 231 (2) (733 SE2d 511)

(2012). An injury arises “in the course of” the employment



      when it occurs within the period of the employment, at a place where the
      employee reasonably may be in the performance of [her] duties, and
      while [she] is fulfilling those duties or engaged in doing something
      incidental thereto. This statutory requirement relates to the time, place
      and circumstances under which the injury takes place.


(Citations and punctuation omitted.) Id. It is undisputed that Chambers’ injury arose

in the course of her employment, and thus that criteria has been satisfied.

      “An injury arises ‘out of’ the employment when a reasonable person, after

considering the circumstances of the employment, would perceive a causal


                                         3
connection between the conditions under which the employee must work and the

resulting injury.” Hennly, 264 Ga. at 356 (1). See Fried v. U. S. Fidelity & Guar.

Co., 192 Ga. 492, 495 (15 SE2d 704) (1941); Dixie Roadbuilders, 318 Ga. App. at

231 (2). The conditions of employment need not be the sole cause of the employee’s

injury; rather, the employment conditions need only be a “contributing proximate

cause” to the injury sustained. See Thornton v. Hartford Acc. & Indem. Co., 198 Ga.

786, 787 (32 SE2d 816) (1945). See also Ga. Farm Bureau Mut. Ins. Co. v. Troupe,

154 Ga. App. 108, 109 (1) (267 SE2d 834) (1980) (in case involving dispute over no-

fault automobile insurance coverage, court notes distinction between “contributing

proximate cause” and “sole cause”).

      In evaluating whether an accidental injury is compensable, we must defer to the

factual findings of the Appellate Division of the State Board of Workers’

Compensation (the “State Board”) if there is any evidence to support them. The

Medical Center, Inc. v. Hernandez, 319 Ga. App. 335 (1) (734 SE2d 557) (2012).

Moreover, “[w]hether an injury arises out of and in the course of employment is

generally a mixed question of law and fact.” Lee v. Sears, 223 Ga. App. 897 (479

SE2d 196) (1996). Significantly, however, where the material facts are not in dispute,

the question whether an injury arises out of and in the course of employment is a


                                          4
question of law. See id.; Thornton v. Hartford Acc. & Indem. Co., 198 Ga. 786, 795

(1) (32 SE2d 816) (1945). And “erroneous applications of law to undisputed facts,

as well as decisions based on erroneous theories of law, are subject to the de novo

standard of review.”    (Citation and footnote omitted.) Renu Thrift Store, Inc. v.

Figueroa, 286 Ga. App. 455, 456 (649 SE2d 528) (2007). Here, the material facts are

undisputed, and the issue is the application of the law to those facts to determine

whether Chambers’ injury arose out of her employment. Thus, contrary to the

conclusion reached by the majority, the proper standard of review is de novo.

      When that standard of review is applied in the present case, it is clear that the

State Board and superior court erred in concluding that Chambers’ injury did not arise

out of her employment. This is because the undisputed record before us demonstrates

that the conditions of Chambers’ employment were a contributing proximate cause

to her knee injury as a matter of law. Specifically, the facts show that on the day of

the accident, Chambers, an EMT and firefighter, was working a 24-hour shift and had

returned to the fire station after responding to an emergency call. Chambers was

seated at a desk in the station when her supervisor approached and asked her to get

up from the desk so that he could complete some paperwork. One of Chamber’s job

duties was to carry out the instructions of her supervisor, and she immediately stood


                                          5
up from the desk. As she rose from the desk, her left knee made a loud popping noise

and she felt instant pain, signaling a knee injury that impaired her ability to carry out

her work duties and ultimately required surgery.

      As this record demonstrates, Chambers injured her knee as she rose from a desk

at the express direction of her supervisor, as she was required to do in accordance

with her job duties. In this respect, the State Board found that Chambers’ supervisor

“asked [her] to get up from the desk so that he could use it,” and that Chambers

complied and injured her knee. Thus, Chambers’ supervisor directed Chambers to

undertake the very movement that resulted in her knee injury. When a supervisor

expressly directs an employee to undertake a specific physical activity, and the

employee is then injured while carrying out that very activity, there is a sufficient

causal connection between the conditions of employment and the resulting injury to

warrant compensation, no matter how mundane the physical activity itself (i.e.,

walking, standing, etc.) may be. See, e. g., Harris v. Peach County Bd. of Commrs.,

296 Ga. App. 225, 228 (674 SE2d 36) (2009) (employee’s knee injury, which resulted

from her reaching down to pick up her personal medication off the workplace floor,

was compensable, where, among other things, “her supervisor required and expected




                                           6
her to remove the pill from the floor”).1 Any other result would turn the principle that

the Worker’s Compensation Act is to be “liberally construed to provide coverage to

the worker” on its head. Gassaway, 280 Ga. App. at 354.

      It is true that Georgia courts have stated that an employee’s injury is not

compensable if the injury “results from a risk to which the employee would have been

equally exposed apart from any condition of employment,” and that “the injury does

not arise out of the employment where the causative danger is not ‘peculiar to the

work’ in a way that causally connects the employment to the injury.” (Citations and

punctuation omitted.) Chaparral Boats, Inc., 269 Ga. App. at 343 (1). Interpreted

too expansively, however, these principles would eliminate from compensation a

large number of injuries sustained at work simply because the claimant might perform

the same physical activity outside of the workplace.2 Where, as in the present case,


      1
        Neither Chaparral Boats, Inc. v. Heath, 269 Ga. App. 339 (606 SE2d 567)
(2004), nor St. Joseph’s Hosp. v. Ward, 300 Ga. App. 845 (686 SE2d 443) (2009),
cited by the majority, involved a supervisor directing the employee to undertake a
specific physical activity that resulted in the employee’s injury.
      2
       Notably, New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682 (118 SE 786)
(1923) was the first Georgia case setting out the principles that an injury is not
compensable if it “comes from a hazard to which the workmen would have been
equally exposed apart from the employment,” and that “[t]he causative danger must
be peculiar to the work, and not common to the neighborhood.” Id. at 688 (2),
quoting In re Employers’ Liability Assur. Corp., 102 NE 697 (1) (Mass. 1913). In

                                           7
an employer through its agent expressly directs an employee to undertake a specific

physical activity, and the employee is then injured while carrying out that very

activity, then the “causative danger” faced by the employee is not independent of the

employment relationship, and there is a straightforward causal connection between

the employment and the injury justifying compensation.

      For these combined reasons, the evidence demonstrates that Chambers’ knee

injury arose out of and in the course of her employment as a matter of law.

Consequently, Chambers is entitled to workers’ compensation benefits, and the State

Board and superior court erred in reaching the opposite conclusion. Because I would

reverse the judgment entered in favor of Chambers’ employer, I respectfully dissent.

      I am authorized to state that Judge Miller joins in this dissent.




New Amsterdam, a traveling salesman died after running over a dog while driving
alone at night, id. at 686 (2), and it was in that unusual context that the court
discussed these principles. Id. at 688 (2). Other early cases discussing these
principles also involved unique factual circumstances. See Thornton, 198 Ga. at 787-
795 (traveling salesman slipped and fell while returning to hotel after dinner); Fried
v. U.S. Fid. & Guar. Co., 192 Ga. 492, 493-496 (15 SE2d 704) (1941) (employee died
after entering the place of business of a third person for the purpose of collecting a
bill owed to his employer and engaging in disorderly conduct at the office). These
early cases from which these principles originated are a far cry from the situation
where an employee sustains an injury while undertaking some physical activity at the
workplace consistent with her job duties.

                                          8
