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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Dixie Roadbuilders, Inc. v. Sallet, (10/26/2012)

An Employer's Voluntary Payment of Benefits May Not Establish an Employer's Entitlement to Workers' Compensation Immunity

The deceased employee worked for an asphalt company and had gone to a convenience store associated with the asphalt company and used by employees.  The employee was killed during a shooting at the convenience store.  Mr. Sallet's adult children filed a wrongful death action against the employer. The employer sought dismissal because it had workers' compensation immunity.

The trial court found a factual question existed as to whether workers' compensation applied to the deceased employee's injuries and that plaintiffs could challenge the applicability of workers' compensation to those injuries, notwithstanding the employer's voluntary workers' compensation payment of the deceased employee's funeral expenses. 

The court found a genuine issue of material fact existed as to whether the deceased employee had left work for the day or was merely on a break when he went to the convenience store.  Further, a genuine issue of fact existed as to whether the deceased employee's trip to the store was a deviation from his employment and, therefore, a personal pursuit.

The court found a factual question existed as to whether workers' compensation applied to Mr. Sallet's injuries, and the plaintiffs could challenge the applicability of workers' compensation to those injuries, notwithstanding Dixie Roadbuilders' voluntary workers' compensation payment of Sallet's funeral expenses. 

After the shooting, Dixie Roadbuilders filed a claim with its workers' compensation insurance carrier.  In response to this claim, the carrier made a payment directly to the funeral home for Sallet's funeral expenses and a payment to the State Board of Workers' Compensation pursuant to O.C.G.A. ยง 34-9-265(f). The plaintiffs, however, neither sought workers' compensation benefits from Dixie Roadbuilders nor requested it file the claim with its insurance carrier. They did not know the funeral costs had been paid by Dixie Roadbuilders' carrier but believed those costs had been paid by a friend of Sallet.