This is an appeal by appellants Gregory M. Zaytzeff and Sue Yang Zaytzeff from an order of the state court granting summary judgment in favor of appellee Safety-Kleen Corporation.
Appellant Gregory Zaytzeff (appellant) brought suit for damages sustained from injuries he received arising out of and in the course of his employment with appellee; appellant Sue Zaytzeff (appellant wife) sued as a co-plaintiff for loss of cоnsortium. Appellant alleges that he was injured while cleaning up a toxic chemical spill for appellee without being issued either a respirator or protective clothing, other than gloves. Two members of management who were not wearing protective clothing or respirators also were present; one of these managers was performing the same task of scooping chemical-soaked dirt into metal barrels thаt appellant was performing.
Appellant initially filed a workers’ compensation claim and the parties stipulated as to the jurisdiction of the State Board of Workers’ Compensation, venue, coverage, general employment, and appellant’s average wage; the primary issues of injury by accident arising out of and in the course of employment, notice, and disability were litigated before the ALJ. The ALJ conducted a heаring and found that appellant “has failed to show by a preponderance of the evidence that he suffered an injury by accident arising out of and in the course of his employment, or that he suffered an occupаtional disease as a result of his exposure to the perchloroethylene . . . the [appellant] has failed to sufficiently demonstrate that his various symptoms were caused by his exposure to the chemical.” The ALJ further held that “while I find the evidence establishes that [appellant’s] psychological problems are related to the exposure incident, I find that *49 these psychological problems are not compensable because . . . [appellant] has failed to show a physical injury resulting from the exposure. . . . Further, psychological problems cannot stand alone as an occupational disease. OCGA § 34-9-280.” The ALJ entered an order dеnying all of appellant’s claims; this award was not appealed within 20 days.
Subsequently appellants filed a complaint in state court; the appellees moved for summary judgment asserting that suit was barred by the exclusive remеdy provisions of OCGA § 34-9-11, and that the ruling of the ALJ was now res judicata as to all issues concerned in the employee’s claims against the employer. Held:
1. The applicable summary judgment standard is that of
Lau’s Corp. v. Haskins,
2. OCGA § 34-9-11 (a) provides that, although the rights and remedies granted to an employee under the Workers’ Compensation Act shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death, the employee is not deprived of his right to bring an action against a third-party tortfeasor; however, the Act makes it clear that an employee cannot bring an action against a third-party tortfeasor who is an employeе of the same employer. OCGA § 34-9-11 (a); see
Weller v. Brown,
*50
The record reveals that appellant initially filed a workers’ compensation claim for physical injuries arising out of and in the course of emplоyment and for certain psychological injuries arising from the physical injuries sustained while cleaning up the toxic chemicals. “Workers’ compensation is the exclusive remedy for injuries arising out of and in the course of employment. OCGA § 34-9-11.”
Kennedy v. Pineland State Bank,
Examination of the record also reveals that no genuine issue of material fact exists regarding any fraud committed by appellee upon appellant.
Griggs v. All-Steel Bldgs.,
In
McCormick v. Mark Heard Fuel Co.,
Appellant contends, however, that his averred claims for psychological injuries are not within the exclusivity provisions of the Act. The ALJ considered appellant’s claims for compеnsation due to “psychological problems” and, citing
W. W. Fowler Oil Co. v. Hamby,
The partial deposition testimony of appellant reflects that appellant was unaware, due to his recent arrival on the job and being in trainee status at the time, that there was any danger associated with the cleanup. It was a week to a week and a half after the incident before appellant realized that the physical symptoms he was experiencing were not related to the flu. Any evidence offered, without reasonable explanation, by appellant to contradict this testimony would be subject to the rule regarding contradictory evidence in
Prophecy Corp. v. Charles Rossignol, Inc.,
George v. Southwire Co.,
Even assuming without deciding that the strict guidelines of
Hanson Buick v. Chatham,
3. As the exclusivity provisions of the Workers’ Compensation Act barred all of appellant’s averred claims, likewise appellant wife’s consortium claim wаs barred. “Here, [appellant] husband has no tort claim against his employer because he is covered by the Act, and [appellant] wife has no claim for loss of consortium, which is derivative from his right. Her property right cоuld only vest if his cause of action be vested, which, of course, it is not.”
Henderson v. Hercules, Inc.,
In view of the above holdings, we need not address appellant’s assertion that “the trial court erred in finding that the decision of the State Board of Workers’ Compensation was res judicata as to all issues presented in this case.”
Judgment affirmed.