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Further Limitations on Continuous Employment Doctrine and Definition of “Compensation”

July 14, 2017 / By Charles G. Hoey, Esq.

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In the recent case of Kendrick v. SRA Track, Inc. (Court of Appeals A17A0094, June 20, 2017), the Court of Appeals drew a distinction between commuting and business travel which limits the continuous employment doctrine. The Court of Appeals also reaffirmed that in the context of the Worker's Compensation Act, the word “compensation” refers only to income benefits. Mr. Kendrick's claim for benefits was denied.

The claimant worked for SRA Track which was in the business of repairing railroad tracks around the southeast. On Sunday, January 13, 2013, Mr. Kendrick left his home to travel to a motel in Alabama where he would be staying for the week while working for SRA Track. Mr. Kendrick had chosen to go home for the weekend. On January 13, 2013, Mr. Kendrick was involved in a motorcycle accident. Although the opinion does not specifically state whether Mr. Kendrick continued working, it appears that he did. He was given a prescription card which he used for nearly 12 months until December 2013. Although Mr. Kendrick was required to be in Alabama for the work week, he was allowed to leave for the weekend.

On January 28, 2014, Mr. Kendrick filed a hearing request seeking TTD. On March 3, 2014, the employer-insurer controverted case. Mr. Kendrick argued that he was traveling for work, and his injury was compensable pursuant to the continuous employment doctrine. He further argued that the employer-insurer had lost the right to controvert the case on any grounds other than newly discovered evidence. O.C.G.A. § 34-9-221(h) notes that when compensation is being paid without an award, the employer-insurer may not controvert a case in its entirety, except on the grounds of newly discovered evidence, once 60 days has passed since the first date compensation benefits were due.

The State Board of Worker's Compensation denied the case. The Superior Court reversed on the grounds that the injury was compensable because the claimant was a traveling employee. The Court of Appeals reversed the Superior Court and found that pursuant to the any evidence rule, the Superior Court should have affirmed the findings of the State Board of Worker's Compensation.

The Court of Appeals first reaffirmed the long-standing definition of "compensation" in this context. O.C.G.A. § 34-9-221(h) clearly refers to the payment of TTD or TPD as “compensation.” If an employer has commenced income benefits, then the employer can only controvert the claim in its entirety based on newly discovered evidence once 60 days has passed since the due date for the first payment of income benefits. It appears that this case was accepted as medical only since the claimant had a prescription card, but he never received any TTD. The employer-insurer were not barred from it covering case in its entirety simply by having paid medical benefits.

Generally, paying for some medical treatment while deciding whether the case is compensable, will not impair the employer-insurer’s defense. When an employer-insurer also commences TTD, beware the case of Carterville v. Hamby 224 Ga. App. 116, 479 S.E. 2d 767 (1996). In that case, the Court ruled that if TTD is being paid, the employer-insurer lose the right to deny the claim, within that 60 day period, unless all benefits due up to the date of the denial are paid. This result is reached even if, as was apparently the case in Hamby, the case is not compensable.

The compensability of the injury in the Kendrick case seemed to turn on the definition of “traveling” versus “commuting". Injuries which occur when an employee is commuting to and from an office are generally not compensable. Unless the employee was required to do some action incidental to his or her employment on the way to or from work, injuries occurring during a commute are not compensable. When an employee is traveling for work, the continuous employment doctrine applies. When traveling for work, virtually everything an employee does, including reasonable and safe activities for personal comfort or convenience, is considered to be arising out and in the course of the claimant’s employment. The Superior Court had reversed the State Board of Worker's Compensation on this basis.

The Court of Appeals affirmed the State Board’s finding that the continuous employment doctrine does not apply to this case. The claimant had chosen to go home for the weekend and was not required to stay in Alabama. While returning from his home to Alabama to resume work the next day, he was not yet traveling for business. Once the claimant arrived back in Alabama, the continuous employment doctrine would have applied. Although the opinion does not use the word “commuting,” I read the case as upholding the Board’s factual finding that the claimant had a long commute on Sunday evening, from his home, to the motel in Alabama.

Left unanswered is the question of what the outcome would have been if the claimant had been making his first trip to Alabama at the start of the assignment. In this case, the Court of Appeals seemed to be holding that the claimant's office had effectively been established in Alabama, and on the weekends, the claimant was commuting back and forth between home and his office in Alabama. Does any business trip start before the employee has actually arrived at the destination where he or she is traveling, and has actually begun working? The distinction in Kendrick seems to be the claimant was already established and working in Alabama. Since he chose to take the weekend off, he would not be deemed to be working until he returned to Alabama.

Unless the Georgia Supreme Court agrees to hear this case and reverses it, this opinion seems to expand the definition of "commuting" and limits the continuous employment doctrine. As always, workers compensation cases tend to be fact specific and can only be understood in light of the exact facts of the case. Please contact me at (770) 557-3360 or email if you have questions about a case involving a traveling employee, or the application of the continuous employment doctrine.