Perhaps one of the more confusing issues that arise in workers’ compensation claims involves the doctrine of “continuous employment.”
Perhaps one of the more confusing issues that arise in workers’ compensation claims involves the doctrine of “continuous employment.” Under this doctrine, if an employee who travels is injured while in “continuous employment” for his employer, those injuries are deemed compensable because the scope of employment of a traveling employee is deemed wider than that of an ordinary employee. New Amsterdam Casualty Co., v. Sumrell, 30 Ga. App. 682, 118 S.E. 786 (1923). Obviously, determining whether an employee is in the “continuous employment” of his employer is often the key to determining whether an injury is compensable. However, this can be a difficult, if not confusing, task — not only for employers, but for the courts as well.
Under the Georgia Workers’ Compensation Act (“the Act”), in order for an injured employee to be entitled to compensation, the injury must “arise out of and in the course” of his or her employment. O.C.G.A. § 34-9-1(4). The first requirement that an injury “arise out of employment” refers to the causal connection between the circumstances of employment and the resulting injury. The second requirement that an injury occur “in the course of employment” refers to the time, place, and circumstances under which the accident take place. It is important to remember that both requirements must be met in order for an injury to be compensable.
In most jurisdictions, “within the course of employment” is commonly understood to begin and end at the employer’s place of business. Therefore, as a general rule, injuries occurring while an employee is going to or coming from work are outside the course of employment and are not compensable. However, as with any rule, there are exceptions. The doctrine of “continuous employment” is one such exception.
Employees who are regularly engaged in traveling or have no fixed place of employment, may be considered to be in the course of their employment from the moment they leave home for work until the moment they return. The Georgia Court of Appeals notes that the proper test to determine whether the doctrine of continuous employment applies is whether, while working away from home, the employee is required by his or her employer to lodge and work within a geographically limited area in order to be available for work on the employer’s job site. United States Fidelity & Guaranty Co. v. Navarre, 147 Ga. App. 302, 248 S.E.2d 562 (1978).
For example, the Georgia Court of Appeals held that the death of a highway department supervisor was compensable when he died in a fall on the stairs at a motel where he was staying at his employer’s expense. This, despite the fact that immediately prior to his fatal fall, the supervisor was eating sandwiches, drinking vodka, playing poker, and visiting the motel cocktail lounge. McDonald v. State Highway Dept. 127 Ga. App. 171, 192 S.E.2d 919 (1972). In essence, the court found that employment is not broken “by mere intervals of leisure . . . unless the employee is doing something wholly foreign to his employment.” Thornton v. Hartford Accident & Casualty Co., 198 Ga. 786, 32 S.E.2d 816 (1945).
So, are there any limits to the doctrine of “continuous employment”? It depends. In Williams v. Atlanta Family Restaurants, Inc., the Georgia Court of Appeals held that the injuries sustained by a female employee from an assault/rape while traveling out of town for her employer were not compensable. 305 Ga. App. 343, 419 S.E.2d 328 (1992). The court concluded that because the injured woman chose to remain in a cocktail lounge with strangers to finish her drink, rather than return to the motel with her co-workers, she stepped aside from the expanded scope of employment afforded traveling employees.
In yet another case, the Georgia Supreme Court found that a traveling employee who is injured when he goes out of his way for personal reasons is not compensable. United States Fidelity & Guaranty Co. v. Skinner, 188 Ga. 823, 5 S.E.2d 9 (1939). In Skinner, a salesman was in Savannah for a business-related conference when he and another employee were involved in an automobile accident while traveling to Tybee Island for dinner. The Court held that the accident did not arise out of and in the course of his employment because Tybee Island was approximately eighteen (18) miles from the employee’s hotel in Savannah and it was not essential or reasonably necessary to the conference or in the furtherance of the company’s business that the employees eat a seafood dinner or go to Tybee Island to see the ocean. However, this concept was recently tested in Ray Bell Construction v. King resulting in a very different outcome. 281 Ga. 853, 642 S.E.2d 841 (2007).
In Ray Bell, the decedent, King, was a Florida resident, but lived in Fayetteville, Georgia, in an apartment provided by his employer, Ray Bell Construction Company. As a superintendent of a construction project located in Jackson, Georgia, his employer provided him with a company truck for both business and personal use. On a Sunday evening, at the end of a week during which he was on sick leave from work due to knee surgery, he was involved in a fatal motor vehicle accident while driving a company truck. At the time of the accident, he was returning to his Fayetteville apartment after moving some of his late mother’s furniture to a storage shed he owned in Alamo, Georgia.
Incredibly, although King was on sick leave and clearly on a personal mission when he was involved the fatal car accident, the Georgia Supreme Court, in a 4-3 decision, affirmed the decisions of the Court of Appeals, the Superior Court of Monroe County, the Appellate Division, and the administrative law judge finding that King’s death was compensable. In fact, the Court’s purported reason for granting the employer’s writ of certiorari was because they were concerned whether the Court of Appeals had properly applied the two-pronged test that an injury by accident must arise out of and in the course of employment in order to be compensable. O.C.G.A. § 34-9-1(4); Mayor & City of Savannah v. Stevens, 278 Ga. 166, 598 S.E.2d 456 (2004).
In affirming the lower courts’ decisions, the Georgia Supreme Court noted that King sustained his fatal injuries within the general proximity of the Fayetteville/Jackson area, the place where he was employed, and at a time he was supposed to be there. He was driving the employer’s vehicle, carrying both personal and company tools. Thus, the Court held that with King’s return to the general proximity of the Fayetteville/Jackson area, the place where he was in continuous employment as a traveling employee, his continuous employment coverage resumed whether he was resuming his trip to the employer’s job site or to his employer-provided housing.
In a strongly-worded dissent written by Justice Harold Melton, he argued that just because an employee is considered to be in the continuous employment of his employer does not mean that he cannot step aside from his employment for personal reasons, or reasons in no way connected with his employment, just as an ordinary employee working on a schedule and at a fixed location. Moreover, the dissent argued that in this case, King never “deviated” from his employer’s mission because from its inception, his mission was wholly personal. Specifically, it was not reasonably necessary nor in furtherance of the employer’s business that King transport his mother’s furniture to a storage shed he owned in Alamo, Georgia. Thus, from the dissent’s perspective, King’s motor vehicle accident was wholly unrelated to his employer’s business and should not be found compensable under the Act.
Nevertheless, the majority’s opinion represents the current state of the law. In fact, the Court’s decision in Ray Bell appears to expand the doctrine of “continuous employment” to such an extent that employers who provide their employees with company transportation should give serious consideration to formulating specific guidelines regarding the use of these vehicles when their employees are on the job and away from home. For example, an employer might want to consider instituting a policy that forbids its employees from using a company vehicle to travel outside a specific geographic location (i.e., within 25 miles of the employer’s work site). However, based on the majority’s decision in Ray Bell, it is not clear that even this type of limitation will reduce an employer’s liability. Thus, the doctrine of continuous employment remains confusing after all these years.