Oliver v. Wal-Mart Stores, Inc.

Cooper, Judge.

Appellant, an employee of Wal-Mart Stores, Inc. (“Wal-Mart”), was accused by her manager and a security guard employed by WalMart of taking a ten-cent cup of ice without paying for it. Although she was not fired, she became very upset after her manager read a counseling statement to her. Following the incident, appellant had trouble sleeping and experienced chest pains and feelings of low self esteem. Appellant subsequently filed a lawsuit against Wal-Mart, the manager and the security guard (hereinafter “appellees”), asserting claims of libel, slander and intentional infliction of emotional distress. The trial court entered an order granting partial summary judgment to appellees on some of appellant’s claims, leaving for adjudication appellant’s claim of slander against the security guard and her claim of intentional infliction of emotional distress against the manager and Wal-Mart. The slander claim is based on a statement made by the security guard while viewing a videotape of the alleged theft. He allegedly stated that the scene depicted in the videotape clearly showed appellant taking the ice. The intentional infliction of emotional distress claim against the manager and Wal-Mart is based on the manager’s reading of the counseling statement to appellant and later reprimanding appellant for discussing the incident with another employee. Appellees subsequently amended their answer to allege that the remaining claims were barred by the exclusive remedy provision of the Workers’ Compensation Act (the “Act”) and filed a motion *704for summary judgment on that ground. The trial court granted appellees’ motion for summary judgment and this appeal follows.

Appellant’s sole enumeration of error is that the trial court erred in concluding that her claims for slander and intentional infliction of emotional distress were barred by the exclusivity provisions of the Act. OCGA § 34-9-11 (a) provides, in pertinent part, 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 . . . injury. ...” OCGA § 34-9-1 (4) provides the following definition of injury: “ ‘Injury’ or ‘personal injury’ means only injury by accident arising out of and in the course of the employment. ...” This court has held that to be compensable under the Act, the injury must be a physical injury or harm. See W. W. Fowler Oil Co. v. Hamby, 192 Ga. App. 422 (385 SE2d 106) (1989); Hanson Buick v. Chatham, 163 Ga. App. 127, 129 (292 SE2d 428) (1982). It is undisputed that the only injury involved in this case is a non-physical one. Appellees, citing Bryant v. Wal-Mart Stores, 203 Ga. App. 770 (417 SE2d 688) (1992), argue that the injury is nevertheless compensable because it arose out of and in the course of employment. However, Bryant, is distinguishable from this case because in that case, there was a physical injury connected to the non-physical injuries claimed by plaintiff. We conclude that since the only injury involved in this case is a non-physical one, it is not one which is compensable under the Act. Consequently, we hold that the trial court erred in granting summary judgment to appellees based on the exclusivity provisions of the Act.

Judgment reversed.

McMurray, P. J., concurs. Beasley, P. J., concurs specially.