*1 Silverman, Cannon, Solicitor-General, Jr., Lawrence A. David L. appellee. Solicitor-General, for Assistant SERVICE, ADAMS. et al. v. ATC HEALTHCARE INC.

A03A1043. Presiding Judge. Ruffin, ATC Health- ordered The State Board of Workers’ (“ATC”) pay compensation benefits Service, Inc. workers’ care Both the division and Rita Adams. discretionary application granted ATC’s award. We affirmed the follow,we review, reverse. and reasons Compen- reviewing Board of Workers’ In a decision of the State infer- sation, and all reasonable factual we construe the evidence party prevailing We will the board.1 in favor of the before ences affirm board’s decision supports it.2 staffing agency is a viewed, the record shows that ATC So hospitals, including Augusta provides State Medical nurses to registered July nurse, fill Adams, a ATC hired Prison. Shortly nursing positions thereafter, ATC an “as needed” basis. three-day training prison conducted to the for a class sent Adams Department employee. Baswell, a of Corrections Adam prison at and course, Adams arrived On the approximately a.m., 11:30 Baswell session. At attended instructing for a lunch the attendees released return class prison lunch facil- The did not have available nearby ity, to a Cracker Bar- so Adams and several classmates drove injur- slipped restaurant, fell, rel ing While in the Adams for lunch. days surgery. right later, her Two she underwent knee knee. Although surgery, Three weeks after the Adams returned work. positions her, to offer she secured ATC had no available hospital emergency in a room. against ATC, claim seek- filed a workers’

ing temporary disability for the three-week total benefits emergency room her return work as an between her attorney requested ATC medical benefits and fees. nurse. She also asserting disputed out of claim, Adams’ did not arise argued particular, employment. In ATC and in the course of her regularly fell, lunch break at the time Adams was on precluding her claim. Rome, City See Pitts v. id. (“ALJ”)rejected argument, administrative law

finding that the lunch scheduled and that employment. of her arose out the course It thus temporary disability requested total awarded Adams benefits period, attorney benefits, medical fees. The *2 and the court affirmed. Compensation injury Act, fall an

To within the Workers’ employment.3 arise out of and in of And we the course have consist- ently held that provided

where a scheduled or rest break lunch break is employees during employee which free use the is the time making personal chooses, him, he an occur- ring period pur- the break arises out of individual compensable.4 suit and not out his and is not The evidence shows that Adams’ a sched- three-day training Baswell, uled lunch break.5 who conducts the every agenda setting weeks, course two testified that the class has an topics day. forth the testified that covered before and after lunch each He further training every day

the class takes lunch break “[approximately point” [the at the same and that “at lunch time class goes] According [,] no matter Baswell, what.” the class usually adjourns p.m. p.m., for lunch at 12:00 and returns at 1:00 [does not] things “but a little bit if sometimes the class have or move [the released] [a.m.] faster, class is at 11:30 Fur- or so.” day training, generally begins thermore, on the he the lunch give participants place at 11:30 a.m. the extra time to find to eat. acknowledged something

Baswell that, in class causes the dis- period might cussion to extend into the the lunch cut be short. Typically, required topics however, Baswell covers the before 3 (4); (1) Ministries, Baptist See OCGA 34-9-1 v. App. Blair Ga. &c. 580 SE2d (1) (202 Liberty Co., Edwards App. (1973); Mut. Ins. SE2d see 121) (2001) Corp., also Rockwell v. (“Generally, Lockheed Martin Ga. employee business, where an is conducting employer’s on a scheduled break and is not apply.”). Workers’ Act does not 5 Although here, we need not address the issue it is unclear whether an unscheduled employer’s premises, during lunch break off taken which the free is of work obligations, employment. Rampley arises out of the v. Travelers Ins. 183) (1977) (holding that “once a claimant has introduced establishing employer’s premises during the accident or occurred on the regularly day, though hap scheduled work the claimant was on break when it pened, employer’s it falls on the shoulders to introduce evidence to show that the break was subject employer’s a scheduled one which the was demands control”) (emphasis supplied). period. that,

planned the record shows And lunch injury, lunch at the normal commenced its break class Adams’ time. requires the he neither trainees testified that Baswell further training activity particular place dur- nor conducts to seek ing simply them what them for lunch tells He releases the break. return. time to receiving she schedule when did not recall

Adams course, understood that the lunch hour for the but she arrived p.m. however, testified, She that Bas- last from 12:00 well released until they finished the morn- the class at 11:30 a.m. because training early. ing admitted that she could use her way prison pleased ATC nor the and that neither break The evidence further shows what she did with that time. controlled period. compensate Adams for the lunch that ATC did not testimony, ALJ that Adams’ lunch on this concluded Based “the orientation schedule [d] . . determine when the lunch break would occur.” each find training program adjourns day,” narrowly. rule too the ALJ construed time

for lunch at “around the same topics. although specified the number after the class covers And *3 might during class alter that schedule to some asked agree render the lunch extent, we cannot that these alterations break “unscheduled.” timing recognize a is not scheduled when its entirely changing employee’s depends workload.6 The

each agenda anticipated however, shows, Baswell’s “[I]f particular time. Baswell further testified: we a lunch break at everything in and we still don’t cover and it’s noon everything something, [are] there about haven’t covered go anyway.” Finally, no evi- we’ll still record contains than that the break ever ended at a time other dence lunch any- logic circumstances, it strains to view the break as Under these thing scheduled. but liberally the Workers’ notes,

As the dissent we must construe pro- bring employers Act and within arising only injuries Nevertheless, Act out of and visions.7 covers employment.8 And in the course of the record demonstrates slipped while on a and fell at restaurant any free to use her break break. It further shows that she was manner no activ- and that ATC exercised control over her wished 734) (1982); Transport Corp., Miles a Brown See Rampley, supra 613. See OCGA 34-9-23. Blair, supra. period.9 Accordingly, [her] ities arose “out of pursuit employment.”10 [her] individual evidence and not out of Because no supports contrary conclusion, we must reverse.

Judgment Smith, Andrews, Johnson, J, J., reversed. C. P. J., Barnes, JJ, Adams, P. concur. Miller and dissent. Barnes, Judge, dissenting. fully Judge separately

I concur in job Miller’s dissent. write emphasize only reweigh evidence, that our is not to review and but “any supports

to decide whether evidence” the decision compensation workers’ “A board. of fact administrative Compensation, sup- law or the State Board of Workmen’s when ported by any (Citation, binding.” punctu- evidence, is conclusive omitted.) emphasis Roy Norman, ation and SE2d 117) (1991). authority findings

The ALJ is vested with the to make compensation appellate fact workers’ claims. The accept of the workers’ board must the ALJ’s findings preponderance competent where there is support credible evidence to the decision. The divi- accepted finding. sion ALJ’s . . This decision cannot be long support disturbed as it, there is evidence to because neither the has court nor the power find facts. (Citations omitted.) punctuation Hallisey Paper v. Fort Howard case, this evi- supports decision, dence the board’s and therefore we should affirm it.

The board found aas fact that “the evidence is sufficient to show employee’s lunch break the orientation schedule each would determine when the occur,” break and concluded as a matter of law *4 employer’s apply. “lunch break not defense” did The divi- agreed, Compensation ruling sion of the State Board of Workers’ that “[a]fter employer/ a review of the whole, record as a we find the (1) (a) (354 Corp., App. Cf. Swanson v. Lockheed 181 Ga. SE2d Aircraft (1987) (“Clearly, employee even if the is on employee a scheduled break and even if the is pleases, employee engaged free to use the break employment- time as he the is in fact in Act.”). activities, injury compensable related the is under the (185 App. 714, Wilkie v. Travelers Ins. SE2d See also (31 421) (1944) a, Aetna (injury Cas. &c. Co. v. Hone 71 Ga. SE2d period, any occurred claimant’s 45-minute lunch which she could take at time p.m., employment). between 12:00 and 3:00 did not arise out of competent by preponderance proven credi- have not

insurer applicable is lunch break defense in the record that the evidence ble employee’s continued, The the claim.” and bars correctly found, the law find, as the administrative “We employee’s the was not employee employee’s the dictated when work schedule/orientation entitled to lunch.” would be majority, that the evidence shows however, concludes

The lunch break. Under a scheduled Adams’ reasoning, employees majority’s a lunch took the fact that new it “sched- sufficient to render around lunchtime is testimony reasoning ignores director’s uled.” That specific time, the new at a but whenever did not break the sessions questions, the lunchtime of much as finished with their Transport Corp., employee v. Brown Miles 734) (1982), regularly scheduled because she 564 ate duty permitted her to Because our is not when her workload eat. reweigh it, from but to the evidence and draw our own conclusions supports decision, I the board’s determine whether majority opinion. respectfully from the dissent dissenting. Judge, Miller, respectfully Since some evidence indicated dissent. scheduled, not the Board’s factual to that that lunch break was effect affirmance on cannot be reversed and the court’s Accordingly, Compensation the Workers’ Act basis was correct. applied injury. to cover the Transport Corp., applicable law is set forth Miles Brown 734) (1982): App. 563, occurring working employee hours

An employer’s premises ordinarily presump- and on the arising tively and in the of sole course of will be as out of considered employee’s employment such, against employer provisions is under action exception coverage, how- Act. An Workers’ injuries occurring during reg- ever, carved out for has been ularly time lunch break or rest break and two is free to act as she chooses. Where these facts concurrently “regularly exist, i.e., and “freedom scheduled” not action,” not arise out of and is in the hours of course and on the does working though within employer’s premises. Freedom of action alone is enough remove the mantle of workers’ employer liability from nor absolve the from the *5 employer under Workers’ Act. The show both that scheduled break personal and the has control actions full produced case, the break time. In this . . . Brown through employees, including precise Miles, Ms. by time she took her lunch break was dictated the current Miles’[s] Thus, status of the workload. Ms. lunch break was not a “scheduled” one.

(Citations emphasis supplied.) Bap- omitted; Id.; accord Blair v. Ga. (2) (1988). Ministries, tist &c. precise Here some evidence showed that the time of the lunch training (regardless day of what in the was) training. training course it was dictated the status of the director testified: you every training

Q. And do take a session? Every day. Yes, A. we do. you point during

Q. And do take at the same each session? Approximately point. Usually try

A. at the same we to take them 1:00, between 12:00 and but sometimes the class things doesn’t have faster, move little bit yes, sometimes we’ll But, be out at 11:30 or so. around the every day. same time you always you spe-

Q. Do take a lunch break after discuss topics? specific breaking you point go cific Is there a lunch? topic usually

A. After each we have breaks and then we take — you depending time, break at know, certain go sometimes some of the classes will faster than others so if everything we don’t cover in and if it’s noon and everything we still haven’t covered or there is something, go anyway. about we’ll still So it’s not — specifically after class. It’s more of a at lunch time go we to lunch no matter what. day generally you go Q. At that of orientation when do —

to lunch? After Usually A. on the first I let them out about 11:30 have no idea what to day they expect because on the first — prison longer and we no has a cafeteria inside so if they they facility want to eat lunch have to leave the some- usually gives So where. let them out about 11:30 which they them extra half hour so can on the first so go they expect they have or if know what to can get lunch. travel somewhere however, he admitted: cross-examination,

On *6 — rigid specif- not as a real I mean it’s so Q. So there’s no set — you’ve ically said, I there is a lunch break? mean set — vary It o’clock? can 11:30 and twelve it’s some between times; is that correct? between those definitely do take Yes, A. sir. mean we we setting style just it class, of or the because of the but being employee orientation, a lot of sometimes there’s a new prison. questions in the Okay.

Q. specific may get depending class, not out on the A. So time. admit that there were director went on to topic covered, answered or which would be was suggested topic going lunch, that the which covered before be cut short.

lunch or break majority’s Although supported the determination some evidence supported scheduled, also break was some evidence lunch break here was not sched Board’s factual depended precise circumstances, on the and that at a time but uled exception to the Workers’ Com therefore the “scheduled lunch break” pensation apply. must remember that the law leans Act did not employers coverage including employees within the of toward (the § 34-9-23 Workers’ Com Act. OCGA the Workers’ pensation purpose liberally for the Act “shall be construed ... provisions chap bringing employers within the of this both”). provide protection as the Court of ter and for Inasmuch uphold superior required Appeals the Board’s court are superior support findings them, the court if there is evidence to affirming award. See Johnson v. Pub here did not err in the Board’s 827) (2002). Supermarkets, lix judgment superior reasons, For I would affirm the court’s these which affirmed the Board’s award. Judge Judge Barnes and

I am authorized state join in this dissent. 27,

Decided October Copeland, Christopher Stair, Whitlock, Carlock, & Sender A. Kelly appellants. Clark, M.

Larry Hollington, appellee. N. CITY A03A1279. UNION AUTO PARTS et al. v. EDWARDS. Judge. Adams, (“UCAP”) City supe- appeal Union Auto Parts and its insurer holding employee Jay rior court’s order that its Edwards was entitled payment of workers’ medical benefits for an on-the- job injury aggravating pre-existing his hernias. Because OCGA 34- expressly payment expenses aggrava- disallows of medical any type pre-existing superior tion of erred ingly hernia we find that the awarding compensation relating to the hernias. We accord- reverse remand the case to the direc- court with Compen- tion that it affirm the award State Board Workers’ *7 Appellate denying sation Division medical benefits for treatment of Edwards’s hernias. undisputed.

The salient are facts Before Edwards went work surgery kidney. UCAP, for he underwent left remove his He later developed surgery. two hernias at the incision site of this These her- significantly injured nias worsened after Edwards was in an on-the- job payment automobile accident. UCAP controverted of medical expenses repair of the hernias.1 The administrative law pre-existing ruled that because Edwards’s incisional hernias were resulting nonemployment-related procedures, condition from medical payment the hernias did not meet the criteria for accordingly § hernias outlined in OCGA 34-9-266. The ALJ denied expenses relating medical benefits for to the hernias. The adopted the ALJ’s award. appealed Edwards to the court, which remanded the case division with direction to determine whether — opposed inguinal Edwards’s incisional hernias as or femoral governed by hernias2 were award, OCGA 34-9-266. properly payment UCAP temporary disability did not controvert of Edwards’s total employers income benefits under OCGA required pay § 34-9-261. While are not medical expenses aggravation pre-existing 34-9-266, of a they required hernia under OCGA § are pay income benefits when a aggravation pre-existing is disabled because of of a (2) (49 Liberty (1948); hernia. See Boswell v. Mut. Ins. Peacock, Cas. Co. Ins. Manufacturers develop Hernias result of a weakness the muscle wall of the lower abdomen. result, abdomen, intestine, As a may protrude through open contents such as ing creating pain bulge. Inguinal groin and a inguinal hernias are located in the canal.