Frett Vs. State Farm

Published Wednesday, July 8, 2020
by Nathan C. Levey

The Georgia Supreme Court recently addressed the application of the “scheduled break” and “ingress/egress” doctrines in the
case of Frett v. State Farm, No. S19G0447, 2020 Ga. LEXIS 458 (June 16, 2020). Eighty-five years of prior case law on the
“scheduled break” defense established an accident does not arise out of employment when it occurs on a regularly scheduled
break and the employee has “freedom of action.” Whereas prior case law on the “ingress/egress” doctrine established an accident
does arise out of employment when the employee is injured during a reasonable period of ingress or egress from his or her place
of employment. The Frett case addressed the question of compensability when an accident occurs while an employee is within a
period of ingress or egress during a scheduled break.
In Frett, the Employee was allotted 45 minutes for her lunch break each day. She was not required to work during her break and
she was free to leave the premises if she wished. On the day of her accident, the Employee clocked out and retrieved her lunch in
the employee breakroom. She intended to eat her lunch outside. When she left the breakroom, she slipped on water and fell. The
Employer denied benefits under the “scheduled break” defense. Although initially awarded benefits by the Administrative Law
Judge, the State Board of Workers’ Compensation Appellate Division reversed and denied benefits.This denial was upheld by the
Superior Court and the Georgia Court of Appeals. The Court of Appeals determined that the extension of workers’ compensation
to cover employees who are leaving for or returning from regularly scheduled breaks was improper unless sanctioned by the
Georgia Supreme Court.
The Georgia Supreme Court accepted the Court of Appeals’ invitation and reversed their decision. The Supreme Court examined
whether the accident at issue arose “in the course of” and “out of” her employment. In finding the accident arose “in the course,”
the Supreme Court applied the “personal comfort” doctrine. They concluded the act of preparing lunch was “reasonably
necessary to sustain her comfort at work, was incidental to her employment and is not beyond the scope of compensability under
the Act.” In turning to the arising “out of” requirement, the Supreme Court explained there “must be some causal connection
under which the employee worked and the injury which he received.” They found this was met when she slipped and fell due to
conditions within the Employer’s control and premises. The Supreme Court expressly overruled the case of Ocean Acci. &
Guarantee Corp. v. Farr, 180 Ga. 266 (1935) which established the “scheduled break” defense. They found the Farr case erred
when it “said nothing at all about causation when it analyzed the ‘arising out of’ prong.”
Frett tells us that in this scenario, an employee will likely be covered for injuries at all times during the break if they remain on
premises. If your policy allows for freedom of movement, be advised that the rules of ingress and egress will apply to the
worksite, and injuries that occur during a reasonable period of arrival and departure will also be included in covered events.
Whether employees stay on-site or depart the premises, all employers must pay close attention to safety issues that might arise in
all areas of common use for breaks. I would advise regular monitoring and safety sweeps for all established break areas and set
and regular intervals by designated employees. Take an approach much like that of regular safety sweeps that grocers undertake
of the aisles in their stores. Just be systematic in your observations of hazards, especially of the slip and fall variety.
For employees that leave the premises, you may want to reconsider this privilege entirely. However, if your policy allowing
freedom of movement will remain in place, take similar levels of precaution regarding your areas of entry and exit and public

parking space provided for employees and in your direct control. Have regular and systematic safety sweeps to uncover current
or developing hazards existing in your controlled premises with plans for mitigation and repair for each. For liability reasons well
beyond workers’ compensation measures, take steps towards video monitoring of controlled areas for the safety of your
workplace. As we all are aware, this technology has become extremely cost-effective and a great resource in defense of claims of
all types. Remember, the rest break defense has not been completely decimated by Frett and accidents that occur outside of our
controlled premises and after a reasonable time for ingress and egress should be strictly scrutinized from a compensability
For any employers contemplating the discontinuance of allowing employees to remain on premises during scheduled breaks due
to Frett, I would not advise that course of action. Ultimately, any decision to forbid employees from staying on premises will cause
substantial HR headaches that far outweigh any benefit. Subjecting employees daily to the hazards of departure of premises
versus merely tightening up the safety protocols on the premises will bring about more harm than good. Inevitably, issues with
late returns to work and other matters will arise creating a mountain of daily headaches in all areas of work.
The decision in Frett is troubling and has taken away a long-established defense in the GA system. Additionally, we would
certainly prefer for actions like this to take place from a legislative level and not necessarily in the form of case law. However, if
there is some solace to find in this decision, it is that in the post-Frett world we now are operating in, this decision brings about a
change that has been well established in the neighboring states of Alabama, Tennessee, and South Carolina. In those
jurisdictions, the rest break defense is superseded by the Personal Comfort Doctrine in the same manner as described in Frett.
Mike Fish, of Birmingham's Fish, Nelson & Holden was asked about not only the Rest Break Defense but also discussed hot topics
within that practice area that he is seeing. "In Alabama, the Personal Comfort Doctrine covers lunch breaks if the employee
remains on the employer's premises. What will be interesting to see is how injuries occurring during lunch breaks for
telecommuters are handled. While there has been no high court opinion addressing that issue in Alabama, a few other states have
covered it since, once a telecommuter arrangement is established, the work environment is imported into the home. That means,
absent a written telecommuter policy stating otherwise, if you are covered during a lunch break at work, then you could be
covered at home as well."
In Tennessee, Fred Baker of Wimberly Lawson had this assessment. "Tennessee also follows the ‘personal comfort doctrine’ when
analyzing injuries that occur while the employee is engaged in activities like drinking from a water cooler, using the restroom, or
having a coffee or lunch break. Typically, it has been held that these injuries are compensable if they occur on the employer's
premises since the employee is in the course of employment at the time of the injury and the employer’s interests are being
served due to the employee’s increased comfort and morale. For instance, in Jacobs v. Bridgestone Americas Tire Operations,
LLC., the employee was a tire builder for a tire manufacturer who suffered severe burns when a co-worker poured gasoline into a
“burn barrel” outside the building during a break. The tire manufacturer denied the employee’s claim for workers’ compensation
benefits on the basis that the accident did not occur in the course and scope of his work as a tire builder. In applying the personal
comfort doctrine, the Tennessee Workers' Compensation Appeals Board noted that the workers’ compensation law does not
expressly state that the employee must, at the time of the injury, have been benefiting his or her employer. It merely requires that
the injury must arise out of and in the course of the employment. Employees who, within the time and space limits of their
employment, engage in acts which minister to personal comfort do not leave the course of their employment unless the extent of
the departure is so great that an intent to abandon the job temporarily may be inferred, or unless the method chosen is so unusual
and unreasonable that the conduct cannot be considered an incident of the employment. Activities that ‘minister to the personal
comfort’ of workers include such acts as eating, drinking, smoking, seeking toilet facilities, and seeking fresh air, coolness or
warmth. The rationale underlying this rule is that acts necessary to the life, comfort, and convenience of an employee while at
work are incidental to the employment and contribute to the furtherance of service. Since the employee, in this case, was taking a
break and was not engaged in a significant departure from his employment, the Court found that the employee was likely to
prevail at trial in establishing that he was injured while in the course and scope of his employment."
Attorney Nick Haigler of Columbia's Robinson Gray provided this South Carolina perspective on the Rest Break Defense in his
state. "South Carolina follows the Personal Comfort Doctrine rather strictly. Injuries occurring while performing typical personal
comfort behaviors, i.e. eating, drinking, smoking, seeking warmth or relief, or medication, are deemed compensable as they occur
in the course of the claimant's employment. See Mack v. Branch No. 12 Post Exchange, 207 S.C. 258, 35 S.E.2d 88 (1945). The
Supreme Court specifically held that ‘such acts as are necessary to the life, comfort, and convenience of the servant while at
work, though strictly personal to himself, and not acts of service, are incidental to the service, and injury sustained in the
performance thereof is deemed to have arisen out of the employment.’ One of the only known instances where the Court denied
compensability is where the employee and a co-worker were sharing a mutual interest in guns, the claimant retrieved a gun from

his car, and the gun discharged injuring the employee." See Dukes v. Rural Metro Corp., 346 S.C. 369, 552 S.E.2d 39 (Ct. App.
Florida attorney Robert J. Grace, Jr. of Bleakley Bavol Denman & Grace, offered this assessment. “Florida almost without
exception recognizes that employees who take a lunch break on an employer's premises are still within the course and scope of
employment. Small exceptions exist for horseplay or deviation but these are rare. Likewise Florida follows the personal comfort
doctrine and on premises breaks are compensable. Even off-premises breaks when short in duration usually will be found
compensable as an employer has an expectation that an employee will attend to their personal comfort. However, telecommuting
probably will change the law. In the Valcourt-Williams case of last year an adjuster working remotely from home tripped over one
of her two dogs while reaching to obtain a cup of cappuccino. The trial judge awarded compensability but our First District Court
of Appeal reversed holding that "regardless of the type of injury, compensability always turns on whether the employment led to

the risk---whether there was occupational causation." The court found no such risk. Instead, the features in the claimant's "non-
employment" life caused the accident.”

In light of the Supreme Court’s decision in Frett, the employer’s ability to assert a “scheduled break” defense is extremely limited.
The employee must not only be on a “scheduled break” with “freedom of action,” but must also be outside a reasonable period of
ingress or egress. Essentially, the defense may only apply after an employee physically leaves the employer’s parking lot or any
area connected to the employer’s premises. To many, the Frett decision seems to unfairly hold employers responsible for
accidents that occur on an employee’s unpaid and unrestricted personal time. Others hold the contrary view that Frett now brings
Georgia's system on par with those of our neighbors with this welcome change. In either case, all employers need to be aware of
the change in this long-established legal precedent and make prudent decisions as a result.
By Nathan C. Levy
Nathan Levy is a partner with Levy, Sibley, Foreman & Speir, LLC, in Atlanta and handles affairs on behalf of the firm regionally
as well as state-wide. Nathan has practiced in the area of workers’ compensation defense since 1998. He is a member of the State
Bars of Alabama and Georgia. Nathan is a current member of the State Bar of Georgia Workers’ Compensation Executive
Committee. His clients include numerous insurers, self-insureds and third party administrators. His areas of practice include
General Litigation, Insurance Defense, and Workers' Compensation Defense.

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