Ray Bell Const. Co. v. King

• Decision Date: 26 March 2007
• Docket Number: No. S06G0891.,S06G0891.
• Citation: 642 S.E.2d 841
• Parties: RAY BELL CONSTRUCTION CO. et al. v. KING.
• Court: Georgia Supreme Court

642 S.E.2d 841

RAY BELL CONSTRUCTION CO. et al. v. KING.

No. S06G0891.

Supreme Court of Georgia.

March 26, 2007.

Reconsideration Denied April 10, 2007.

Edwin G. Russell, Jr., Alpharetta, for Appellant.

Timothy V. Hanofee, Atlanta, for Appellee.

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 King'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 Const. Co. v. King, 277 Ga.App. 144, 625 S.E.2d 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 & Aldermen, etc. v. Stevens, 278 Ga. 166(1), 598 S.E.2d 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(1), 444 S.E.2d 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 S.E.2d 90 (2000). See also New Amsterdam Casualty v. Sumrell, 30 Ga.App. 682, 689, 118 S.E. 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 Georgia Timber Co. v. Petty, 218 Ga.App. 497, 498, 462 S.E.2d 176 (1995). See also Young v. Columbus Consolidated Gov't., 263 Ga. 172(1), 430 S.E.2d 7 (1993). This Court is without authority to substitute itself as a fact-finding body when reviewing a workers' compensation decision. Hallisey v. Fort Howard Paper Co., 268 Ga. 57(1), 484 S.E.2d 653 (1997); Southwire Co. v. George, 266 Ga. 739, 742, 470 S.E.2d 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 who had concluded a personal mission and had 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 Casualty Co. v. Sumrell, supra, 30 Ga.App. at 688-689, 118 S.E. 786. See also Mayor & Aldermen, etc. v. Stevens, supra, 278 Ga. 166 (1, 2), 598 S.E.2d 456.

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. Georgia Power Co., 128 Ga.App. 352(1), 196 S.E.2d 693 (1973). See also U.S.F. & G. Co. v. Navarre, 147 Ga.App. 302, 304-305, 248 S.E.2d 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 Accident, etc., Co., 198 Ga. 786, 790, 32 S.E.2d 816 (1945); McDonald v. State Highway Dept., 127 Ga.App. 171, 176, 192 S.E.2d 919 (1972). See also Williams v. Atlanta Family Restaurants, 204 Ga.App. 343, 419 S.E.2d 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 Accident, etc., Co., supra, 198 Ga. at 790, 32 S.E.2d 816), 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, 32 S.E.2d 816.¹

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 Accident, etc., Co., supra, 198 Ga. at 790, 32 S.E.2d 816 (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, etc., Co. v. Herndon, 81 Ga.App. 178, 181, 58 S.E.2d 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, etc., 217 Ga.App. 534, 535, 458 S.E.2d 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 Georgia Timber v. Petty, supra, 218 Ga.App. at 499, 462 S.E.2d 176; Lewis v. Chatham County Savannah, etc., supra, 217 Ga.App. at 535, 458 S.E.2d 173.

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 S.E.2d 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., 184 Or.App. 88, 55 P.3d 533 (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.

MELTON, Justice, dissenting.

Howard King was fatally injured in a car accident. It is undisputed that, at the time of the accident, King, a superintendent for Ray Bell Construction Company, was on the second leg of a personal mission to move some of his late mother's furniture from Fayetteville, Georgia to a storage shed located in Alamo, Georgia. It is also undisputed that King was off-duty during the pendency of this trip; in fact, King was on sick leave from work at the time. Under these...