Ray Bell Construction Co. v. King , 281 Ga. 853 ( 2007 )

Benham, Justice.

Howard King, a resident of Florida, lived in a Fayetteville, Georgia, apartment provided by his employer, appellant Ray Bell Construction Company, while he was employed as a superintendent of a construction project in Jackson, Georgia. King died in Georgia on Monday, August 12, 2002, from injuries he had sustained in a vehicular collision the previous day that occurred in Georgia while King was driving a truck provided by his employer as a term and condition of employment. When King’s former wife sought dependency benefits for King’s dependent minor child, the employer and its insurer controverted the claim on the ground that Kang’s death did not arise out of and in the course of his employment. The administrative law judge awarded benefits to the child, based in part on the doctrine of “continuous employment,” and the State Board of Workers’ Compensation affirmed the ALJ’s decision. The Superior Court of Monroe County affirmed the decision, as did the Court of Appeals in Ray Bell Constr. Co. v. King, 277 Ga. App. 144 (625 SE2d 541) (2006). We granted the employer’s petition for a writ of certiorari because we were concerned whether the Court of Appeals had applied the two-pronged test for a compensable injury reiterated in Mayor &c. of Savannah v. Stevens, 278 Ga. 166 (1) (598 SE2d 456) (2004): the injury by accident must arise in the course of employment and out of the course of employment, “two independent and distinct criteria ” See also OCGA§ 34-9-1 (4).

“The Workers’ Compensation Act in Georgia is intended to have broad application so as to cover a wide variety of injuries and the pain and suffering incident to such injuries.” Hennly v. Richardson, 264 Ga. 355-356 (1) (444 SE2d 317) (1994). It is “a humanitarian measure which should be liberally construed to effectuate its purpose.” City of Waycross v. Holmes, 272 Ga. 488, 489 (532 SE2d 90) (2000). See also New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682, 689 (118 SE 786) (1923) (The Workers’ Compensation Act “should be liberally and broadly construed to effect [its] beneficent purpose.”).

In reviewing a workers’ compensation award, both th[e appellate] court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division [of the State Board of Workers’ Compensation]. [Cit.] “It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding. . . .” [Cit.]

South Ga. Timber Co. v. Petty, 218 Ga. App. 497, 498 (462 SE2d 176) (1995). See also Young v. Columbus Consolidated Govt., 263 Ga. 172 (1) (430 SE2d 7) (1993). This Court is without authority to substitute itself as a factfinding body when reviewing a workers’ compensation decision. Hallisey v. Fort Howard Paper Co., 268 Ga. 57 (1) (484 SE2d 653) (1997); Southwire Co. v. George, 266 Ga. 739, 742 (470 SE2d 865) (1996) .

The appellate division of the State Workers’ Compensation Board determined King suffered a compensable injury because, at the time the injury was sustained, King was an employee in continuous employment driving an employer-provided vehicle and had concluded a personal mission and resumed the employer’s business because he was driving to either his job site or to his employer-provided housing. In light of the appellate division’s statement in the disjunctive of its finding regarding King’s destination at the time of injury, in reviewing the appellate division’s award we examine whether King was covered if he were driving to the job site and if he were returning to his employer-provided housing.

The words “in the course of the employment” relate to the time, place, and circumstances under which the accident takes place, and an accident arises in the course of the employment when it occurs within the period of employment at a place where the employee may reasonably be in the performance of his duties and while he is fulfilling those duties or engaged in something incidental thereto. [Cit.] The words “arising out of the employment” refer to the causal connection between the employment and the injury. [Cits.]

New Amsterdam Cas. Co. v. Sumrell, supra, 30 Ga. App. at 688-689. See also Mayor &c. of Savannah v. Stevens, supra, 278 Ga. 166 (1), (2).

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 [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.” Wilson v. Ga. Power Co., 128 Ga. App. 352 (1) (196 SE2d 693) (1973). See also U.S.F. & G. Co. v. Navarre, 147 Ga. App. 302, 304-305 (248 SE2d 562) (1978). Such an employee is, “in effect, in continuous employment, day and night, for the purposes of the [Workers’] Compensation Act” (id.), 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 the employment. Thornton v. Hartford Acc. &c. Co., 198 Ga. 786, 790 (32 SE2d 816) (1945); McDonald v. State Hwy. Dept., 127 Ga. App. 171, 176 (192 SE2d 919) (1972). See also Williams v. Atlanta Family Restaurants, 204 Ga. App. 343 (419 SE2d 328) (1992). Acts necessary to the health and comfort of the traveling employee are “incidents of his employment and acts of service therein within the meaning of the [workers’] compensation act...” (Thornton v. Hartford Acc. &c. Co., supra, 198 Ga. at 790), and the employment is not broken “by mere intervals of leisure . . . unless the [employee] is doing something wholly foreign to his employment.” Id. at 788.¹

Workers’ compensation coverage is not afforded a traveling employee in continuous employment when the employee is engaged in a personal mission not related to the health and comfort of the employee. Thornton v. Hartford Acc. &c. Co., supra, 198 Ga. at 790 (a traveling employee in continuous employment, day and night, can step aside from his employment for reasons in no way connected with his employment). However, the traveling employee completes the personal mission and resumes continuous employment coverage when the employee is “in the general proximity of the place where he was employed to be and at a time he was employed to be in that general proximity.” London Guarantee &c. Co. v. Herndon, 81 Ga. App. 178, 181 (58 SE2d 510) (1950). It is undisputed that King engaged in a personal mission unrelated to his employment when he delivered family furniture to his storage shed. However, the appellate division of the State Board of Workers’ Compensation found that King’s deviation from his employment had ended and he had resumed his employer’s business by the time he sustained the injury.

While generally an employee again resumes the duties of the employer when the employee “turns back” from the personal mission (id.), “at some point a departure from the master’s business may become so great that merely concluding the personal errand and turning back will not be viewed as the resumption of the employer’s business.” Lewis v. Chatham County Savannah &c. Comm., 217 Ga. App. 534, 535 (458 SE2d 173) (1995). The determination whether the injury occurred in the general proximity of the place the employee was employed to be at a time he was employed to be in that general area was a question of fact for the ALJ and the appellate division of the State Board of Workers’ Compensation. South Ga. Timber v. Petty, supra, 218 Ga. App. at 499; Lewis v. Chatham County Savannah &c. Comm., supra, 217 Ga. App. at 535.

Construing the evidence in the case at bar in the light most favorable to the party who prevailed before the appellate division, King sustained his injuries within the general proximity of the Fayetteville/Jackson area, the place where he was employed to be at a time he was employed to be in that general proximity.² With King’s return to the general proximity of the Fayetteville/Jackson area in which 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 (Railway Express Agency v. Shuttleworth, 61 Ga. App. 644, 650 (7 SE2d 195) (1940) (injury sustained by traveling employee in continuous employment by ordinary hazards of the transportation used on the way to job would be compensable)),³ or was returning to his employer-provided housing. See Sosnoski v. SAIF Corp., 55 P3d 533 (Or. App. 2002) (traveling employee was covered for injuries received while driving car back to employer-provided lodging after a personal mission that had resulted in his incarceration and the car’s impoundment). Accordingly, we affirm the judgment of the Court of Appeals affirming the trial court’s affirmance of the appellate division of the State Board of Workers’ Compensation.

Judgment affirmed.

All the Justices concur, except Carley, Thompson, and Melton, JJ., who dissent.

1 Acts within the broader coverage afforded traveling employees in continuous employment include relaxation activities. McDonald v. State Hwy. Dept., supra, 127 Ga. App. at 175-176 (workers’ compensation awarded employee assigned to a project for which the employer provided housing five days a week for injury incurred after he ministered to his personal comforts by relaxing with alcoholic beverages and refreshments while playing cards since these activities were not “wholly foreign to his employment”). However, the traveling employee in continuous employment must make “normal or prudent” decisions regarding activities in order to maintain continuous employment coverage. Williams v. Atlanta Family Restaurants, 204 Ga. App. 343, 345-346 (419 SE2d 328) (1992) (workers’ compensation coverage denied to employee housed by employer in a hotel to attend an out-of-town training session who went to another site to do laundry, accepted an offer from strangers of a ride to her lodgings in lieu of a like offer from her employer’s supervisory personnel, and suffered injuries resulting from a criminal assault during that ride, because the decisions the employee made regarding her safety were not “normal or prudent”).

2 In the absence of any evidence of the termination of King’s employment while he was on medical leave or the employer’s suspension of the requirement that King live away from home and near the job site during that period, his “medical leave” status does not affect coverage as a traveling employee in continuous employment.

3 We note that an award of compensation based on the finding of the appellate division of the State Board of Workers’ Compensation that King had been injured on his way to the job site is also supported by application of the doctrine which provides coverage to an employee injured on his way to or from work while in a vehicle furnished by the employer as an incident of the employment. American Mut. Liability Ins. Co. v. Curry, 187 Ga. 342, 353-354 (200 SE 150) (1938). While a deviation from the trip to the job site to accomplish a personal mission would not be covered (Lewis v. Chatham County Savannah &c. Comm., supra, 217 Ga. App. at 535), the factual determination by the appellate division that the personal mission had ended at the time the injury was sustained authorizes an award of compensation under this theory as well.