July 01, 2013 BY Stephen Graham
Are We There Yet?: Court REaffirms Established Doctrine Regarding Accidents Going To And Coming From Work
In a decision favorable to employers and insurers, the Georgia Court of Appeals, in the recent cases ofThe Medical Center, Inc. v. Hernandez et al. and Hernandez et al. v. Atlanta Drywall, LLC, 319 Ga. App. 335, 734 S.E.2d 557 (2012), reaffirmed the well established rule that accidents which occur while the employee is going to or coming from work are not compensable under the Georgia Workers’ Compensation Act. While there appears to have been no dispute regarding the fact that the employees’ were on their way to work at the time of the accident, they nonetheless argued that their injuries should be found compensable under the continuous employment doctrine, a notable exception to the “going to/coming from” rule.
A review of the record reveals that at the time of the accident, the employees, Hernandez and Alvarez-Hilario, were working for Atlanta Drywall, LLC on a construction project in Columbus, Georgia. The Savannah, Georgia residents would typically make the trip to Columbus (a four hour drive) early on Monday mornings, spend the week in Columbus, and then return to Savannah on Saturdays. Although the employer provided lodging at a local motel during the work week, the employees were only paid for the hours they actually worked on the job site, and were not paid for travel time.
The accident giving rise to the injuries occurred on the morning of Monday, February 8, 2010 when the employees were on their way from their homes in Savannah to their place of work in Columbus. The evidence showed that the pair were travelling as passengers in a personal truck driven by a co-worker and, at the time of the accident, were within approximately five minutes of the job site. Alvarez-Hilario perished as a result of the accident and Hernandez sustained serious injuries.
The employees filed claims for workers’ compensation benefits which were denied by the administrative law judge. The decision was subsequently affirmed by both the Appellate Division of the State Board of Workers’ Compensation and the Superior Court. In affirming the decision of the Superior Court, the Georgia Court of Appeals citied the general rule that “collisions occurring while employees are traveling to and from work do not arise out of and in the course of employment.” As the evidence showed that the claimants’ were “not yet engaged in their employment at the time of the accident”, but rather were traveling to the work site when the accident occurred, the court held that the injuries sustained while traveling to work did not arise out of or in the course of the claimants’ employment.
What makes this case notable is the court’s rejection of Appellants’ argument to broaden the workers’ compensation coverage afforded the employees under the doctrine of continuous employment. Generally speaking, the doctrine applies to those employees “who are required by [their] employment to lodge and work within an area geographically limited by the necessity of being available for work on the employer’s job site.” Activities performed by such employees, in a reasonable and prudent manner for their health and comfort, including recreational activities, arise out of and are in the course of the employment. Ray Bell Constr. Co. v. King, 281 Ga. 853, 855, 642 S.E.2d 841 (2007). In analyzing the facts of the Hernandez case, the court found that when the employees’ left Columbus at the end of the work week to return to their homes in Savannah, there were “no longer performing work duties or being paid by their employer…thus they were off-duty and no longer continuously employed.” The question then became when and where the continuous employment resumed. Citing the Ray Bell case, the court noted that only when the employees’ were back in the general proximity of the place where they were employed and at a time they were employed in that general proximity would they have resumed continuous employment. While the court acknowledged that the employees “were arguably in the general proximity of their construction site at the time of the accident, it [was] undisputed that they had not yet arrived at the site and thus had not yet resumed performing the duties of their employment.”
The court also pointed to two other factors it considered in distinguishing this case from other continuous employment cases and determining that the doctrine did not apply. First, the court noted that since the employees’ were not engaged in any construction work at the time of the accident, the risks to which the they were subjected on the roadways were not incidental to their employment. Consequently, the injuries did not arise out of their employment.
Second, the court found that unlike other continuous employment cases, in which the employees were under a 24-hour per day duty to perform their job, the employees in the Hernandez case “had not yet resumed their work for the week, so their injuries also did not arise in the course of their employment.” The court therefore concluded that the continuous employment doctrine was inapplicable and that the injuries sustained by the employees while on their way to work were not compensable.
Prior to the decision in Hernandez, the Court of Appeals issued a series of opinions which arguably broadened the continuous employment doctrine, and could have potentially been used as a basis for the application of the doctrine in this instance. Fortunately, the court’s decision to reject the Appellant’s argument for application of the continuous employment doctrine, and to instead apply the “going to/coming from” rule, provides employers and insurers with much more of a bright line rule to be applied in determining compensability of such cases. Of course, every claim is different, and minor changes to the facts of Hernandezcould have led to a very different result. For instance, if the employees’ had been paid for their travel time, reimbursed for their mileage and/or provided with company transportation, the claims likely would have been found compensable. The element of control also seemed to be a factor in determining the outcome ofHernandez inasmuch as the employees’ were “off the clock” from Saturday until Monday morning and thus had the freedom make the four hour return trip to their homes in Savannah. That the employees’ were not “on call” over the weekend or otherwise required to be available for work on the employer’s job site during this time also likely factored into the court’s decision. On the other hand, had their job duties required that they remain in Columbus, then an accident which occurred while on their way to work Monday morning might very well have been found compensable.
The fact that the Hernandez court declined to apply the doctrine of continuous employment, and instead reaffirmed the long established rule that accidents which occur while going to or coming from work are not compensable, is welcome news for employers, especially those who may require frequent travel of their employees. However, the fact-specific nature of the case highlights the need for timely and thorough investigations by employer and insurers in claims where the doctrine of continuous employment is potentially implicated.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley