United States: Continuous Employment – Where Do We Stand?

Last Updated: June 8 2018
Article by John E. Adkisson, III

The Georgia Court of Appeals ruled on two cases involving the doctrine of continuous employment in 2017. The doctrine is most frequently applied to traveling employees. It provides that injuries to employees who are traveling for a business purpose are generally compensable, provided the injury occurs while the traveling employee is engaged in an activity within the time he is employed and at a place where he might reasonably be in the performance of that employment. Specifically the Georgia Supreme Court has held that: "activities performed in a reasonable and prudent manner for the health and comfort of the employee, including recreational activities, arise out of and in the course of employment for an employee who is required by his employment to lodge and work within an area geographically limited by the necessity of being available for work on the employer's job site." Ray Bell Const. Co. v. King, 281 Ga. 853, 642 S.E.2d 841 (2007) (finding the claimant's accident compensable based on the doctrine of continuous employment when the claimant died in an accident after finishing a personal errand and driving back to either the job site or the employer provided apartment).

Prior to 2017, the most recent published decision on the continuous employment doctrine came in 2012 when the Court of Appeals ruled in The Medical Center, Inc. v. Hernandez, 319 Ga. App. 335, 734 S.E.2d 557. In that case, two employees were involved in a motor vehicle accident five minutes from the job site of their employer, Atlanta Drywall, in Columbus, GA while riding in the personal truck of a co-worker. Both employees lived in Savannah at the time of the accident. Every Monday morning, they made the four hour drive from Savannah to Columbus. They remained in Columbus for the work week in employer-provided lodging. On Saturday morning, the employees would drive back home to Savannah. The employees were not paid for travel time between Savannah and Columbus.

The administrative law judge ("ALJ") denied the claims for workers' compensation benefits. The State Board's Appellate Division and the superior court both affirmed the ALJ's decision. The claimants and The Medical Center, Inc. (party at interest) both appealed the decision to the Court of Appeals.

The Court of Appeals held that the continuous employment doctrine did not apply because the employees had not yet arrived at work on Monday morning when the accident took place. Instead, they were still on their way to the job site (i.e., "going to" work). The employees did not perform job duties from the time they left Columbus until they actually arrived at the job site on Monday. Therefore, the Court of Appeals affirmed the denial of the claims. The Court pointed out that the continuous employment doctrine might have applied if the employees had been injured at some point after their work duties had begun on Monday.

In March, 2017, the Court of Appeals issued the first 2017 continuous employment decision in Avrett Plumbing Company v. Castillo, 340 Ga. App. 671, 798 S.E.2d 268. Castillo was employed by Avrett (based out of Augusta, GA). During the work week, the employer supplied Castillo with a hotel room in Augusta because he lived out of town. The employer also allowed Castillo to stay in the hotel over the weekends because the room was already paid for and would not be used by anyone else. However, Castillo did not work, was not paid, and was not on-call during the weekends. On a Sunday afternoon, Castillo was injured when he tripped and broke his ankle while running a personal errand (buying groceries).

The ALJ found that Castillo was entitled to workers' compensation benefits because he was a continuous employee and "was required by his employment to live away from home while working." The Appellate Division reversed the ALJ, finding Castillo was not required to be in Augusta on the weekend and he was not paid, was not "on-call," and was not under Avrett's control during the weekend. The superior court reversed the Appellate Division's decision and reinstated the ALJ's award of benefits to Castillo.

The Court of Appeals reversed the superior court, holding that the superior court failed to adhere to the "any evidence" standard of review because there was some evidence supporting the Appellate Division's decision. Per the Appellate Division's factual findings, Castillo was only present in Augusta as a personal convenience (due to financial situation and car troubles) so he could utilize housing gratuitously provided by Avrett. Therefore, there was some evidence to support the Appellate Division's conclusion that Castillo was not in continuous employment on the weekend he was injured.

Three months later, in June, 2017, the Court of Appeals decided the case of Kendrick v. SRA Track, Inc., 341 Ga. App. 818, 801 S.E.2d 911. Kendrick was employed by SRA Track, Inc. ("SRA") to help repair railroad tracks in various states. On Sunday, January 13, 2013, Kendrick drove his motorcycle from his home in Georgia to a motel in Alabama where he planned to spend the night before beginning work on an SRA job on Monday morning. On his way to the motel, Kendrick was injured in a motorcycle accident. After the accident, SRA's insurer provided Kendrick with a prescription card, which he used through December, 2013.

Kendrick eventually filed a claim for indemnity benefits related to injuries he sustained in his motorcycle accident. The ALJ found the accident did not arise out of or occur in the course of Kendrick's employment with SRA. The Appellate Division affirmed the decision of the ALJ. The decision was then affirmed by operation of law at the superior court because no order was entered within 20 days of the superior court hearing.

In addition to arguing the claim was compensable under the continuous employment doctrine, Kendrick argued that SRA was time-barred from controverting the claim because it had failed to file its notice to controvert "within 60 days of the due date of the first payment of compensation" as required by O.C.G.A. § 34-9-221(h), based on providing the prescription card. The Court of Appeals disagreed, finding the prescription card was not "compensation" under O.C.G.A. § 34-9-221(h).

The Court of Appeals also disagreed with Kendrick's contention that he was in continuous employment, concluding he was "not yet engaged in his employment at the time of the accident." Instead, the accident occurred as he was traveling to the motel the day before he was scheduled to begin work. Therefore, the continuous employment doctrine did not apply.

The recent decisions of the Court of Appeals reiterate the fact that cases involving continuous employment are fact-specific. Among other things, compensability turns on the timing of the accident, the timing of the "beginning" of the job, the reason for the lodging, and whether any "deviation" was ongoing at the time of the accident. In all of the recent cases, a difference in one fact could have resulted in a different outcome on the question of compensability. For example, if the claimant in Ray Bell had not returned from his "deviation," the claim would have likely been denied. If the claimants in Hernandez and Kendrick had been injured in motor vehicle accidents during the work week, the claims might have been deemed compensable. As for Castillo, changing the timing of the accident, adding a requirement by the employer to remain out-of-town over the weekend, or including a provision requiring the claimant to remain on-call could have potentially changed the outcome of the decision of the Court of Appeals. There have been no published decisions from the Appellate Division since the 2017 Court of Appeals' decisions.

Originally published by State Bar of Georgia Workers' Compensation Newsletter, Spring 2018.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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