by Emily J. Anderson, Esq.

The Appellate Division had a very busy year since the last conference, and Director Elizabeth Gobeil led a discussion about recent Appellate Division decisions. These decisions are not binding, but do provide good insight into the position the Board is likely to take on specific legal issues. A summary of several of the cases is provided here:

• Discoverable Evidence – Surveillance Not Required to be Turned Over Prior to Deposition: In this case, the claimant requested the production of surveillance video recordings prior to a scheduled deposition. While the Court determined that surveillance is discoverable, they also decided that because it is prepared in anticipation of litigation, and can be used as an impeachment tool, it is afforded a measure of protection. Therefore, although the employer/insurer is required to produce the footage prior to the hearing, surveillance does not need to be produced until after the claimant’s deposition.

• Continuous Employment / Unexplained Death in a Heatstroke Case: This case concerned a truck driver who, after delivering his last load and waiting for dispatch, collapsed approximately 2.5 miles from his truck and died from heat stroke. The defense argued that it was not “continuous employment” because the claimant’s work did not require him to be in Atlanta, and therefore it was a purely personal mission. The Court did not agree and ruled that traveling employees, when they are out of town and in the general proximity of where their work is performed, are generally found to be within the scope of their employment. This claimant’s work was performed at his truck, and even though he had wandered away from his truck, he was still in the “general proximity.” The employee’s inability to drive without further dispatch from his employer, and the prohibition by law to drive farther because he was out of hours, placed the employee under “continuous employment with the employer.” Additionally, according to the “unexplained death rule,” the presumption, when the employee is found dead in the place of his employment and the precipitating cause of death is unknown, is that he died in the scope of his employment. Therefore, the Court found the claimant’s death arose out of and in the course of employment.

• Idiopathic Injuries – No “Peculiar Risk” in Walking: In this case, the claimant, who was employed as a teacher, twisted her knee and fell while walking around her desk to the front of the classroom. The Court determined that turning and walking was not a “peculiar risk” to her work, and there was no credible evidence that anything else within the classroom contributed to the injury. Therefore, the injury did not “arise out of” her employment and was not compensable.