Lavine v. American Ins. Co.

• Decision Date: 15 July 1986
• Docket Number: No. 71701,71701
• Citation: Lavine v. American Ins. Co., 348 S.E.2d 114, 179 Ga.App. 898 (Ga. App. 1986)
• Parties: LAVINE v. AMERICAN INSURANCE COMPANY et al.
• Court: Georgia Court of Appeals

Page 114

348 S.E.2d 114

179 Ga.App. 898

LAVINE v. AMERICAN INSURANCE COMPANY et al.

No. 71701.

Court of Appeals of Georgia.

July 15, 1986.

Rehearing Denied July 29, 1986.

Certiorari Denied Dec. 2, 1986.

Gregory T. Presmanes, David A. Kennedy, Atlanta, for appellant.

Charles Zirkle, Susan E. Lowe, Atlanta, for appellees.

BEASLEY, Judge.

We granted discretionary appeal to review an order of the lower court reversing an award to claimant Lavine by the State Board of Workers' Compensation. The disputed issue in the case is whether or not claimant's injury arose out of or was in the course of his employment for the purpose of compensability under the Workers' Compensation Act.

Claimant and his wife were foster parents at Georgia Charlee Family Care, Inc. and resided at the foster home. Lavine also owned and operated a karate school. On November 3, 1983, claimant and his wife had been terminated as foster parents but were instructed to keep performing their full duties until November 10, the effective date of the termination. Until the 10th, they were to gradually move their belongings out.

Claimant was injured in an automobile collision on November 6. Just prior to the accident, claimant was enroute to the grocery store to purchase food items for the next morning's breakfast at Georgia Charlee. He was also on his way home from transporting personal goods to their future home, which was the initial purpose of the trip, and he was coincidentally carrying back cheese and cigarettes he had purchased at the request of the foster children on his trip to the new home. Claimant in the company of another individual had driven his van and trailer filled with personal belongings, first to a market to purchase the cheese and cigarettes, then to a restaurant for lunch, and then to the future residence of claimant and his wife to deliver their belongings. While at the house claimant's wife called and asked him to stop at a grocery store on the way back to the foster home to buy groceries for breakfast the next morning. The same route was utilized as would have been followed had the errand not been requested. In the collision which occurred enroute some 15-20 miles before the store would have been reached, claimant sustained substantial injury requiring hospitalization and surgery.

The ALJ denied Lavine's claim on the basis of the finding, inter alia, that the motivating purpose of the subject trip was personal interest and that the journey would have been made just the same without the incidental task to be done for the employer so that the injuries were not sustained in the course of employment. The ALJ further found that the trip was at most for a dual purpose and that Lavine had not completed his personal interest purpose and entered a business purpose zone; that is, he was not then returning from a business purpose location, so on this basis also, the injury was non-compensable.

Lavine successfully appealed the denial of his claim to the full board upon the theory that he was in the course of his employment when the collision occurred because he was on a special errand for the sole benefit of the employer and had already completed any personal aspects of his trip to drop off belongings at the future residence. Upon its de novo review of the ALJ's award, the board awarded claimant indemnity benefits and medical expenses and substituted for the ALJ's findings the findings of fact that "a. At the time of injury, claimant had completed his task of moving personal household goods to a different residence. Evidence reveals claimant to have been en route to purchase necessary supplies for the benefit of employer at the time of the motor vehicle collision. Therefore, it is found, as fact, that claimant's injuries arose out of and in the course of his employment and that claimant was no longer engaged in a dual mission but rather was on a mission to solely benefit employer. b. Evidence further reveals claimant to be on 24-hour call basis and to be required to live at employer-provided housing seven days a week. Therefore, it is found that claimant worked with employer under a contract of continuous employment...." The Board concluded that " 'Where the employee breaks the continuity of his employment for purposes of his own and is injured before he brings himself back into the line of employment, his injury does not arise out of or in the course of his employment, but where the personal mission has been accomplished and the employee is once more engaged in the duties of his employment, the injury arises out of and in the course of employment.' General Accident Fire & Life Assurance Corp. LTD v. Prescott, 80 Ga.App. 421 [56 S.E.2d 137]; Fulton County Civil Court v. Elzey, 101 Ga.App. 520, 523 [114 S.E.2d 314]."

The employer/insurer appealed to the superior court, and in a lengthy order the court reversed the board award and affirmed the award of the ALJ on the ground that the board's findings of fact did not support its award and thus that the award was contrary to law. In place of the board's findings, the court entered its own, ultimately concluding that the accident occurred outside the course of employment and also that it did not arise in the course of employment.

Appellant Lavine maintains that there was "an abundance of evidence" to support the board award, that the lower court improperly weighed the evidence, ignored the "any evidence" rule to find that his injury did not arise out of or in the course of his employment when there was some evidence to support the board's findings, and erred in reversing the board on such a "question of fact."

"The issue of whether an injury arises out of and in the course of employment and hence is compensable under the workers' compensation law is a mixed question of fact and law. The finder of fact must first hear all the relevant evidence concerning the injury and, after finding the facts with regard thereto, render a conclusion of law on whether it was job-related. This is true when the question of whether an injury is job-related and hence arises as an affirmative issue in a workers' compensation case, wherein the administrative law judge or the Board finds facts and makes conclusions of law based upon those facts. [Cits.]" Utz v. Powell, 160 Ga.App. 888, 889(1), 288 S.E.2d 601 (1982).

Furthermore, "[i]t is the law in this state that if there is any evidence to support a finding of the Workers' Compensation Board, the superior court may not reverse the award unless errors of law were committed. Moreover, in determining whether evidence in the case meets the 'any evidence' rule, the evidence will be construed in the light most favorable to the party prevailing before the board and every presumption in favor of the Board's award is indulged. [Cits.] It is not for the appellate court, either the superior court or this court, in workers' compensation appeals, to weigh the evidence.... If the evidence exists in the record and no errors of law were made, the Board must be affirmed." Calhoun v. Mergentine/KVN & Horn Fruin-Colnon, 165 Ga.App. 610, 611(1), 302 S.E.2d 401 (1983).

In this case, the board made a de novo review of all of the evidence, and after weighing the evidence made its findings that Lavine's injuries arose out of and in the course of his employment. Our review reveals that construing the evidence in the light most favorable to claimant as the prevailing party before the board, there was evidence to support the board's findings. Id. at 610(1), 302 S.E.2d 401. Therefore, the superior court was bound to affirm the board unless there was an error of law made.

A review of the award reflects that the board reached the legal conclusion that Lavine's injury was job-related in the context of the legal test set out in Fulton County Civil Court v. Elzey, 101 Ga.App. 520, 523, 114 S.E.2d 314 (1960).

We find no error of law in the board's use of the legal framework set out in Elzey to weigh the evidence and make its consequent findings supporting compensability of Lavine's injury. This appears to be a situation in which the superior court exceeded its authorized role by weighing the evidence and so substituting its judgment for that of the board. Reversal therefore is mandated.

Judgment reversed.

BANKE, C.J., McMURRAY and BIRDSONG, P.JJ., and CARLEY, SOGNIER, POPE and BENHAM, JJ., concur.

DEEN, P.J., dissents.

DEEN, Presiding Judge, dissenting.

The trial judge in his order has analyzed the facts and applied the correct theory of law in this case which this court should adopt. We set out here substantially what the ALJ and trial court held.

Claimant, Lawrence Lavine, was employed by Georgia Charlee Family Care, Inc. from August 25, 1983, through November 10, 1983. On November 3, 1983, he was notified he was terminated by them effective November 10, 1983. He and his wife were foster parents to several children at this facility. He also owned and operated a karate school.

On Sunday, November 6, 1983, he was involved in an automobile accident. On this day, claimant was moving his personal belongings from the foster care home in Austell to his new residence in Woodstock, which he estimates is twenty-five to thirty miles away. Lavine was using his personal van to transport the belongings and not the foster home van. On the way to Woodstock he and another person stopped at the Majik Market one mile away from the foster house to purchase cigarettes and cheese. This purchase was at the request of his wife and a couple of children as required by his employment. After stopping at the Majik Market, they had something to eat at Arby's Restaurant and went on to Woodstock. Upon completion of the delivery of furniture at the Allen Daniel home where he and his wife would reside, Lavine received a phone call from his wife to stop by the Kroger store to purchase some food for breakfast the next day at the foster home. This store is...