During 2017, the Court of Appeals visited the issue of continuous employment in two opinions, Avrett Plumbing Company v. Castillo, decided March 10, 2017, and also in the case of Kendrick v. SRA Track, Inc., decided on June 20, 2017. In both cases, the Court of Appeals ruled for the Employer/Insurer that the respective employee's injuries did not occur while in the course and scope of their employment, as they were not on continuous employment. Both of these opinions would seem to continue to demonstrate that whether the doctrine of continuous employment applies to make an injury compensable is a very fact-specific inquiry.
The doctrine of continuous employment is most frequently applied to traveling employees. Generally, an accident is compensable if it occurs while an employee is engaged in an activity during the time he is employed, in a place where he might reasonably be in performance of that employment. For example, a traveling salesman who is injured while walking across the street to his hotel room from a restaurant would be compensable. In fact, the continuous employment is frequently referred to by judges and workers' compensation attorneys as the "Traveling Salesman Rule."
In the case of Avrett Plumbing v. Castillo, the employee was hired as an hourly employee by Avrett, a company based in Augusta. The employee's normal work hours were Monday through Friday, from 8:00 a.m. to 5:00 p.m., as well as occasional overtime hours on weekdays, only. The employee was paid by the hour. In addition to his hourly pay, the employer also provided the employee a motel room in Augusta, because the employee did not live in Augusta. While the employee did not work weekends, Avrett allowed the employee to use the motel room on the weekends because he did not always travel home on the weekends due to financial difficulties he was experiencing, and chose to simply stay in Augusta. He did not work on the weekends. The motel room was rented weekly, and would have been unoccupied, had the employee not stayed in it over the weekends, on occasion.
The employee's injuries occurred on a Sunday afternoon, while he was engaged in running a personal errand, and was not working. The employee filed a claim for benefits and contended that he was engaged in continuous employment at the time of his injury.
The case went to a hearing before an Administrative Law Judge, who ruled in the employee's favor. The Appellate Division reversed the award and found that the employee was not a continuous employee because he was not away from his residence for a work-related purpose at the time he was injured. It further found that the employee was present at the location of his injury merely as a personal convenience, so that he could utilize the housing gratuitously provided by the employer. Thus, the employee was not a continuous employee on the weekend in question.
The Superior Court reversed the Appellate Division, and the Employer/Insurer appealed to the Court of Appeals, which reversed again, citing the any evidence standard. Specifically, the Court of Appeals disagreed with the Superior Court, which found that the employee was in Augusta in order to be in the general location of his employment on Sunday afternoon for work on Monday, and therefore, his presence in Augusta was work-related, finding that the continuous employment doctrine did apply. However, the Court of Appeals agreed with the Appellate Division's finding that the employee was not required to be in Augusta on Sunday, when the injury occurred, for any employment-related reason, but was present as a personal convenience so he could utilize the housing provided by Avrett.
In Kendrick v. SRA Track, decided on June 20, 2017, the Court of Appeals again visited the issue of continuous employment. This case had similar facts to the Avrett case. In Kendrick, the claimant worked as a railroad repair technician and traveled to job sites both within and outside of Georgia. At the time of his accident, also on a Sunday afternoon, he was traveling from his home in Georgia to a motel near the jobsite in Alabama, where he planned to start working the following Monday morning. The employer required him to stay near the job site and the employee usually would travel home on the weekends. There were other issues in the claim involving what constituted payment of benefits, but the ALJ determined after hearing that the accident did not arise in the course of employment, and that the continuous employment doctrine did not apply. The decision was affirmed by the Appellate Division, and appealed to the Superior Court, where it was affirmed by operation of the law, when the Superior Court did not issue an order.
With regard to the issue of continuous employment, the claimant argued that his injuries were compensable under the continuous employment doctrine. The Court of Appeals disagreed and found that the employee was required to stay and work away from home, but only during the week. Because the employee was traveling to the motel close to the job site on the Sunday afternoon during which he was injured, from his home, he was not involved in a work-related activity, and the Court of Appeals held that any period of continuous employment had not yet begun. The Court of Appeals further held that when he began his job duties the following Monday, the continuous employment doctrine might apply for any injuries occurring during the week, when he was required to be in Alabama, but during the weekend, his travel was personal.
This finding is also consistent with case law, which has long held that injuries sustained by the employee while going to or coming from his employment are not compensable. Also, injuries that occur while an employee is "on-call" without evidence of actual work performance, is not compensable.
In this case, the Court of Appeals seemed to leave open the likelihood that, once the employee's work activities started, and he was working away from home and staying in the motel, any injury he suffered, whether actually working or not, barring an injury occurring while strictly engaged in personal activities, would be compensable. In both this case and the Avrett case, the injured workers were simply engaged in activities of personal convenience, but were not in places they would be expected to be, moreso than places they chose to be, and this would seem to be why these claims were denied.
Again, in both Avrett and Kendrick, the Court of Appeals adhered to the long-standing general definition of continuous employment find for the Employer/Insurers, but it is quite clear that the facts of the case were determinative of the outcome. The continuous employment doctrine remains a viable theory upon which a traveling employee can obtain workers' compensation benefits for an injury even though he is not engaged in work at the time he is injured.
Further, these cases seem to adhere to the general rule that to be compensable, an injury must arise in the course of employment, for the employee to be entitled to workers' compensation benefits. While the employees in both Avrett and Kendrick might arguably have been in places they might reasonably be expected to be in order to commence performance of their duties the following day, it would appear that the court also will require the claimant to show a causal connection between the performance of the work-related activity and the injury, in order for the claim to be deemed compensable.
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