Abernathy v. City of Albany

Hunstein, Justice,

dissenting.

I respectfully dissent to the majority’s holding that claimant Joel Abernathy did not sustain an injury compensable under the Georgia *92Workers’ Compensation Act.

The administrative law judge in this case made the following findings of fact: Abernathy has been a park maintenance supervisor for the City of Albany since the mid 1980’s. His job primarily involves the planting and maintenance of grass, shrubbery, and trees for properties including the Flint River Cemetery. In early July 1994, torrential rain caused the Flint River to flood and flood waters lifted several hundred caskets from the cemetery ground, tore some of the caskets asunder, and carried caskets and corpses away from the cemetery. Because of vacationing superiors, Abernathy found himself in co-command of his department during the flood. Abernathy responded to this crisis situation by taking his personal boat to the cemetery and, over a five-day period, going after the floating caskets and tying them to trees and other objects to prevent them from floating down the flooded river. The ALJ found that Abernathy toiled twenty-two hours without a rest the first day, nearly that many hours on each of the following two days, and fourteen to sixteen hours the fourth and fifth days. He and three other employees were able to recover some 400 caskets and 18 corpses, 12 of which Abernathy personally retrieved. The bodies had to be manually lifted into the boats and some of the corpses came apart during the recovery efforts so that Abernathy had to retrieve them in pieces. The ALJ found that in one instance the head of a corpse broke away and landed in Abernathy’s lap and in another instance, Abernathy’s hands sank into the decayed flesh of one of the bodies he recovered.

It is uncontroverted that Abernathy sustained no physical injury as a result of this gruesome work activity. Abernathy continued to work after the flood subsided but the ALJ found that in January 1995, shortly after the City required him to present a detailed written account of what he had done during the flood, Abernathy began to experience “vivid recurring nightmares of a dead and decayed body emerging from the water to attack him.” These nightmares continued and in March 1995, Abernathy suffered an episode in which he believed he was shooting at a corpse rising in the river only to discover, the following morning, that he had actually seized a pistol kept under his bed and shot his chest of drawers. Shortly thereafter, Abernathy sought and received counseling from the City’s Employee Assistance Program1 but in August 1995 the City’s counselor referred Abernathy to a psychiatrist for further assistance. The psychiatrist diagnosed Abernathy as suffering from post-traumatic stress disorder and placed Abernathy on several prescription medications to *93treat his symptoms. Although Abernathy had been working since the flood, he was not able to operate the machinery involved in his job while using the prescribed medications and he ceased working on August 8, 1995. It was at that point that Abernathy requested workers’ compensation benefits to cover his medical treatment and loss of income; the City denied the claim.2 Abernathy continued with his treatment and as a result thereof, he obtained relief from his symptoms and was able to return to work on January 25, 1996.

The evidence in this case reveals that a conscientious City of Albany employee, when faced with an emergency situation, responded to the crisis by performing duties that were almost inconceivably horrifying and macabre. Although he fortunately received no physical injury, he did not go unscathed: As a direct and uncontro-verted result of his work activity during the flood, Abernathy sustained a psychological injury. Because of this work-related injury he sought workers’ compensation benefits for his medical treatment and for income lost in the six months he was unable to work due to the side effects of physician-prescribed medication for his injury.

Abernathy sustained an injury which arose out of and in the course of his employment. OCGA § 34-9-1 (4). The fact that he has no physical damage on which to hang his compensation claim, no strained back or stress-related heart problems or even an injured knee, like the truck driver in Southwire Co. v. George, 266 Ga. 739 (470 SE2d 865) (1996), does not mean that this employee did not suffer an injury by accident arising out of and in the course of his employment. The legal reasons given by the majority to support its holding that mental injuries alone must be excluded from those injuries compensable under the Workers’ Compensation Act have already been thoroughly and eloquently rebutted by Justice Sears in her special concurrence in Southwire Co., supra at 743. As to the majority’s stare decisis argument, the horrific facts of the case reveal the clear error committed by the appellate courts of this State in restricting the statutory language of OCGA § 34-9-1 (4) to those injuries linked with physical damage. It is said that “bad facts make bad law,” but in this instance, bad facts have served only to uncover bad appellate case law already on the books. Rather than perpetuate this error, as the majority does, this Court should seize this opportunity to correct the error. Finally, while the majority stresses that its continued misinterpretation of the Act is supported by the Legislature’s failure to correct the judicial branch’s error, the General Assembly’s intent in regard to the purpose of the Act has been the subject of recent legis*94lative action in the form of OCGA § 34-9-23, which holds that the Act must be “liberally construed” when its construction involves “bringing employers and employees within the provisions of [the Act] and to provide protection to both.” The majority has rendered an opinion contrary to the plain language of this statutory mandate by holding that the Act provides no protection to Abernathy, an employee who has sustained an injury arising out of and in the course of his employment.

Decided January 26, 1998 Reconsideration denied February 23,1998. Eugene C. Black, Jr., for appellant. Gardner, Willis, Sweat & Goldsmith, Todd S. Handelman, Lewis R. Lamb, Hamilton, Westby, Marshall & Antonowich, Andrew J. Hamilton, Ralph J. Hiers, Drew, Eckl & Farnham, Daniel C. Kniffen, for appellee. Swift, Currie, McGhee & Hiers, Robert R. Potter, Kenneth B. Still, George, Bartles & Wallach, Alex B. Wallach, amici curiae.

This Court cannot justly claim that we interpret OCGA § 34-9-1 (4) in a manner which is “sound and consistent with the beneficent objective of the Act,” Southwire Co., supra at 741, when we bar this employee’s recovery for an injury that has directly arisen out of and in the course of his employment on the unenlightened and medically-insupportable basis that there can be no “injury” unless there is precedent or concurrent physical damage. Because I would interpret “injury” consistent with OCGA § 34-9-23 as providing protection to employees like Abernathy, who sustained an injury — a mental injury — as a result of his employment, I must respectfully dissent.

I am authorized to state that Chief Justice Benham and Justice Sears join in this dissent.

The ALJ found that this program was established by the City to provide counseling for those employees who might have suffered emotional trauma as a result of the unusual experiences they had while working during the flood.

The ALJ noted that Abernathy used his accumulated sick and annual leave and the City filed claims for the medical expenses under its group health insurance.