Standard of Review – “ANY EVIDENCE” RULE

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BY DYLAN BESS

TRAVELING EMPLOYEES/DOCTRINE OF “CONTINUOUS EMPLOYMENT”

The Avrett Plumbing Company v. Castillo, 340 Ga. App. 671, March 10, 2017.

      This case involved Georgia’s doctrine of continuous employment, but ultimately turned on factual findings made by the State Board of Worker’s Compensation. The Court of Appeals held that the Superior Court did not give proper deference to those findings, but substituted its own instead.

      Castillo was an employee of Avrett, a plumbing company based in Augusta. His work hours were Monday through Friday, 8:00 a.m. to 5 p.m. Avrett provided Castillo with a hotel room in Augusta because he was not a resident of Augusta. Although he did not work weekends, Castillo was allowed to use the hotel room over the weekend because it was a seven-day weekly rental arrangement; however, he was only paid for the hours that he actually worked. Because financial and transportation reasons made it difficult to travel home each weekend at his own expense, Castillo chose to remain in Augusta over the weekends.

      On a Sunday, while in Augusta, Castillo tripped and broke his ankle while running a personal errand to buy groceries. At the time, he was off work and was not “on-call.”

      Castillo sought workers’ compensation benefits under the theory that he was a continuous employee at the time of his injury. The ALJ granted benefits, but upon Avrett’s appeal, the Appellate Division of the State Board of Workers’ Compensation vacated the ALJ’s award based on its finding that Castillo was not a continuous employee because he was not away from his residence for a work-related purpose at the time he was injured.

      Castillo appealed to the Superior Court of Richmond County, which reinstated the award of benefits. Avrett appealed to the Court of Appeals, arguing that the Superior Court did not give proper deference to the Appellate Division’s factual findings.

      Under Georgia’s doctrine of continuous employment, 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 is in continuous employment for purposes of the Workers’ Compensation Act. 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.Here, although the ALJ found that Castillo was “required by his employment to live away from home while working,” the Appellate Division disagreed and found that Castillo “primarily remained in Augusta over the weekend, not for any employment-related reasons but due to personal transportation and financial constraints.” The Superior Court made a contradictory factual finding when it determined that Castillo was present in Augusta on the day he was injured to prepare for work on Monday.

      In Georgia workers’ compensation cases, the factual findings of the Appellate Division must be affirmed when supported by any evidence in the administrative record.Because the record contained some evidence supporting the Appellate Division’s conclusion, the Superior Court lacked authority to substitute its own factual findings for that of the Appellate Division. Accordingly, the Court of Appeals reversed the Superior Court.AWARDS AND ISSUES APPEALABLE

Kendrick v. SRA Track, Inc., 2017 Ga. App. 287, June 20, 2017.

      In this case, the Court of Appeals considered whether the Board’s denial of an Employer/Insurer’s motion to dismiss a claim is appealable beyond the Board and found that it is not.

      Edwards filed a claim for additional medical treatment for his compensable work injuries. The Employer/Insurer filed a motion to dismiss the claim, arguing that it was barred by the statute of limitation under O.C.G.A.
§ 34-9-82(a). The ALJ denied the motion and the Appellate Division adopted and affirmed the ALJ’s findings and conclusions. The Employer/Insurer appealed to the Superior Court, which affirmed the Board’s decision.

      O.C.G.A. § 34-9-105(b) provides that only a  award, order, judgment or decision of the Board is subject to appeal to the Superior Court. Because the Board did not issue a compensation award, the Court of Appeals held that the Board’s ruling did not constitute a “final order or judgment” as contemplated by O.C.G.A. § 34-9-105(b). As such, the Superior Court was without jurisdiction to consider the appeal and should have dismissed it.

Premier Elevator Co./SOI v. Edwards, 341 Ga. App. 235, April 13, 2017.

      Here, the Court of Appeals again considered the doctrine of continuous employment and held that it did not apply as the employee was not performing work duties or being paid by the employer when he traveled to a motel near a job site. The Court also held that payment for prescription medications by the Employer/Insurer is not “compensation” that would trigger the 60 day deadline for controverting a claim under O.C.G.A. § 34-9-221(h).

      Kendrick was a Georgia resident who was employed by SRA Track, Inc. repairing railroad tracks in various states. On the evening of Sunday, January 13, 2013, Kenrick left his home in Georgia to drive to a motel in Alabama where he planned to spend the night before working the next morning. On the way, he was injured in a motorcycle accident. After the accident, Kendrick received a prescription card from the Employer/Insurer which he used until December 2013 to help pay for pain medicine.

      In March 2014, the Employer/Insurer controverted the claim on the grounds that the accident did not arise out of and in the course of Kendrick’s employment. Following the hearing, the ALJ denied Kendrick’s claim finding that the accident did not arise out and in the course Kendrick’s employment and that he was not a continuous employee at the time. The Appellate Division adopted the ALJ’s order and the Superior Court affirmed by operation of law.

      Kendrick appealed to the Court of Appeals arguing that O.C.G.A. § 34-9-221 barred the Employer/Insurer from controverting the claim and that his injuries are compensable under the continuous employment doctrine.

      The Court pointed out that the Supreme Court of Georgia has held that O.C.G.A. § 34-9-221 governs the procedure for payment of  benefits. Because the prescription card was not an income benefit, it did not constitute compensation under O.C.G.A. § 34-9-221(h).

      The Court also held that because Kendrick had previously returned to his home and Georgia for the weekend, and because he was not performing duties or being paid by SRA as he traveled to the motel, he was not continuously employed. Accordingly, the Court affirmed the judgment of the Superior Court.

Dylan Bess is an attorney with the law firm Morgan & Morgan Atlanta, PLLC. He currently handles workers’ compensation claims, representing injured workers. He can be reached at (404) 965-1886 or by email at dbess@forthepeople.com.

Endnotes
1 , 281 Ga. 853, 855 (2007).
2
, 326 Ga. App. 631 (2014).
3
Presiding Judge McFadden dissented, arguing that the Appellate Division’s conclusion “rests on an overly-narrow view of what Georgia law views to be ‘required by his employment’” and that the case should have been remanded to the Appellate Division for a complete analysis.
4
See , 190 Ga. App. 595 (1989) (holding that the Act makes no provision for an appeal to the superior court from a decision by the full board other than one which grants or denies compensation).
5
, 274 Ga. 809 (2002).

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