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Court of Appeals Places Limitations On Continuous Employment Doctrine

July 6, 2017 / By Charles G. Hoey, Esq.

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The continuous employment doctrine often dictates that injuries suffered by traveling employees are compensable. An employee who is required to travel for work is generally deemed to be “in the course of his employment” when traveling. In the recent case of The Avrett Plumbing Company v Castillo, 340 Ga. App. 671, 790 S.E. 2d 268 (2017), the Court of Appeals upheld a ruling by the Appellate Division of the State Board of Workers Compensation that the injuries suffered by a traveling employee were outside the course and scope of his employment.

The claimant, Marlon Castillo, was employed with The Avrett Plumbing Company in Augusta Georgia. The employer provided Mr. Castillo with a hotel room in Augusta during the work week. Mr. Castillo did not live in Augusta. He would sometimes be on call during the weekends. He was not on call the weekend he was injured. Mr. Castillo was allowed, but not required, to use the employer provided hotel room when he was not on call. He was injured during a trip to the grocery store.

The Administrative Law Judge, who heard the case, held that it was compensable. The Appellate Division reversed and denied the claim. They found as fact that Mr. Castillo was not in the course and scope of his employment at the time of the accident. The claimant appealed the denial of his benefits to the Superior Court which reversed the Appellate Division. The Court of Appeals reversed the Superior Court holding that the Superior Court had violated the "any evidence rule." Since there was evidence in the record to support the Appellate Division's finding that Mr. Castillo was not in the course of his employment, their award had to be affirmed.

In the Avrett opinion, the Court of Appeals discussed the continuous employment doctrine citing Ray Bell Constr. Co. v. King 281 Ga. 853, 855, 642 S.E. 2d 841 (2007):

“Under Georgia’s doctrine of continuous employment, more commonly known nationally as “the traveling employee” doctrine, there is broader workers’ compensation coverage afforded an employee who is required by the employment lodge and work within an area geographically limited by the necessity of being available for work on the employer's job site. Such an employee is, in effect, in continuous employment, day and night, for the purposes of the Worker's Compensation Act, and activities performed in a reasonable and prudent manner for the health and comfort of the employee, including recreational activities, arise out of and are in the course of employment.”

The requirement of an injury being “in the course of” the employee’s employment refers to the time, manner, and means of the claimant's employment. At the time of the injury, was the claimant in a place his employment required him to be? Was he performing activities which his employment required him to undertake?

Note that the language describing this doctrine includes “activities performed in a reasonable and prudent manner for the health and comfort of the employee, including recreational activities.” If Mr. Castillo had been required, rather than permitted, to stay in Augusta that weekend, a trip to the grocery store would be included in the actions “required for the health and comfort of the employee.” Had Mr. Castillo been on call at the time of the injury, the injury would have been compensable since his permanent residence was not in Augusta. Being on call, by itself, does not make an injury compensable if it occurs while the employee was on call. The employee must still be required to stay out of town, by the employer, or otherwise be doing something incidental to his employment.

It is evident that the continuous employment doctrine is broad and refers to virtually any activity a claimant engages in while traveling for the employer. It should also be evident, however, that every case is different, and the specific facts must always be investigated. For example, an employee who was on call, and required to be out of town, might suffer an injury while eating dinner at a restaurant. Would that injury be compensable, or do you require more information? What if the claimant was having dinner with some friends and intoxicated? Assuming the employer requires their employees to be sober when working, the injury may not be compensable if the claimant violated company policy while being drunk while on call. The activities must be performed in a “reasonable and prudent manner.” What if the claimant were attacked for reasons personal to him? Although a routine meal during a routine business trip will generally be compensable, you should always double check the circumstances of each alleged injury.

If a claimant is evasive when asked whether he was required to travel by his employer, be certain to determine the specific job requirements (or absence of job requirements) for that particular claimant on that particular date. Asking all the right questions, of the claimant, and the employer, will help ensure that you only accept compensable claims.