KENDRICK v. SRA TRACK, INC. Et Al. , 341 Ga. App. 818 ( 2017 )

FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 20, 2017
In the Court of Appeals of Georgia
A17A0094. KENDRICK v. SRA TRACK, INC. et al.
MCFADDEN, Presiding Judge.
Charles Kendrick appeals from the affirmance of a board of workers’
compensation decision denying his claim for benefits. Kendrick argues that the board
erred in failing to find that the employer’s defense is time-barred by OCGA § 34-9-
221 (h), which requires that notices to controvert be filed “within 60 days of the due
date of the first payment of compensation.” But that argument rests on the proposition
that a prescription card the employer gave Kendrick constitutes “compensation”
under that provision. It does not. Kendrick also argues that the board erred in finding
that his injury did not arise out of and in the course of his employment and in finding
that he was not a continuous employee at the time of the injury. Because Kendrick
was traveling to a motel near the job site when he was injured, those contentions are
also without merit. So we affirm.
1. Facts and procedural posture.
On appeal from a workers’ compensation award, we review findings of fact
under the “any evidence” standard. McAdoo v. MARTA, 326 Ga. App. 788, 792 (1)
(755 SE2d 278) (2014).
In reviewing a workers’ compensation award, this [c]ourt must construe
the evidence in the light most favorable to the party prevailing before
the appellate division. The findings of the State Board of Workers’
Compensation, when supported by any evidence, are conclusive and
binding, and neither the superior court nor this [c]ourt may substitute
itself as a factfinding body in lieu of the State Board.
Bell v. Gilder Timber Co., 337 Ga. App. 47 (785 SE2d 682) (2016) (citation omitted).
So viewed, the evidence shows that Charles Kendrick was employed by SRA
Track, Inc.,1 to help repair railroad tracks in various states, including Georgia,
Alabama, Tennessee, North Carolina and Virginia. At approximately 4:00 p.m. on
Sunday, January 13, 2013, Kendrick left his home in Georgia on his motorcycle to
drive to a motel in Alabama, where he planned to spend the night before beginning
1
We note that in the record and briefs the employer is referred to as both SRA
Track, Inc., and SRA Track, LLC. In this opinion, we have used the employer name
designated on the notice of appeal.
2
work on an SRA job the next morning. While traveling to the motel, Kendrick was
injured in a motorcycle accident. After the accident, Kendrick received a prescription
card from SRA’s insurer, which he used through December 2013 to help pay for pain
medications.
On January 28, 2014, Kendrick filed a workers’ compensation claim for
temporary disability benefits. On March 3, 2014, SRA and its insurer filed a notice
to controvert the claim on the ground that the accident did not arise out of and in the
course of Kendrick’s employment. A hearing on the claim was held before an
administrative law judge on July 24, 2015. Thereafter, on September 17, 2015, the
ALJ issued an order denying Kendrick’s claim for benefits, finding that the accident
did not arise out of and in the course of Kendrick’s employment and that he was not
a continuous employee at the time he was injured. Kendrick appealed to the Appellate
Division of the State Board of Workers’ Compensation, which adopted the ALJ’s
order as its award. Kendrick then appealed to the superior court, which held a hearing
but did not enter an order disposing of the appeal within 20 days of the hearing,
thereby resulting in the board’s award being affirmed by operation of law. See OCGA
§ 34-9-105 (b) Kendrick’s application for discretionary appeal to this court was
granted, and this appeal followed.
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2. OCGA § 34-9-221 (h).
Kendrick argues that the superior court erred in failing to find that SRA was
time-barred by OCGA § 34-9-221 (h) from controverting his claim on the ground that
the accident did not arise out of or in the course of his employment. The argument is
without merit because that code section does not apply to the facts of this case.
OCGA § 34-9-221 (h) provides: “Where compensation is being paid without
an award, the right to compensation shall not be controverted except upon the
grounds of change in condition or newly discovered evidence unless notice to
controvert is filed with the board within 60 days of the due date of first payment of
compensation.” (Emphasis supplied.) Kendrick contends that the prescription card
from SRA’s insurer, which he used to pay for medications, constituted compensation
under OCGA § 34-9-221 (h). Therefore, he argues, SRA was required to file a notice
to controvert the workers’ compensation claim within 60 days of the first payment
with that card, but SRA failed to timely file such notice and it was thus barred from
controverting the claim on any ground other than change in condition or newly
discovered evidence.
However, contrary to Kendrick’s contention, the prescription card used to pay
for medications was not compensation under that code section, which governs only
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compensation for income benefits, not medical benefits. See generally Jackson v.
Georgia Bldg. Auth., 144 Ga. App. 275, 276 (241 SE2d 54) (1977) (in construing
another statute, recognizing distinction between income benefits for lost wages and
medical benefits in workers’ compensation claims). As our Supreme Court has held,
“OCGA § 34-9-221 governs the procedure for employers and insurers to follow in
paying income benefits to employees and disputing the employees’ claims.” Meredith
v. Atlanta Intermodal Rail Svcs., 274 Ga. 809, 810 (561 SE2d 67) (2002) (emphasis
supplied). Indeed, it is apparent from the plain language of OCGA § 34-9-221 that it
refers only to compensation for income benefits, while medical benefits are not
mentioned anywhere in that code section. Consistent with that plain language, in a
case that turned on the question of what is included in the term “compensation” under
OCGA § 34-9-221 (h), this court relied on a prior holding “that the term
‘compensation’ [in that statute] encompasses all of the accrued income benefits[.]”
Cartersville Ready Mix Co. v. Hamby, 224 Ga. App. 116, 118 (2) (479 SE2d 767)
(1996) (citation, punctuation, and emphasis omitted). As our Supreme Court has
further explained, “the state board [of workers’ compensation] has interpreted
subsection (h) [of OCGA § 34-9-221] as applying only when income benefits are
being paid, and the General Assembly has failed to overturn either the court decisions
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or agency rules despite frequent amendments to the statute.” Meredith, supra at 813(emphasis supplied).
In the instant case, SRA did not pay income benefits for lost wages to
Kendrick. See OCGA § 34-9-260 (method for computing compensation generally
based on average weekly wages). Because the prescription card was not an income
benefit, it did not constitute compensation under OCGA § 34-9-221 (h). Accordingly,
that code section does not apply to this case and Kendrick’s misplaced reliance on it
provides no basis for reversing the affirmance of the board’s award.
3. Arising out of and in the course of employment.
Kendrick contends that the superior court erred in affirming by operation of
law the board’s findings that his injury did not arise out of or in the course of his
employment. We disagree.
To be compensable under the Workers’ Compensation Act, an
employee’s accidental injury must arise both out of and in the course of
his or her employment. OCGA § 34-9-1 (4). The term “arising out of”
refers to some causal connection between the conditions under which
the employee worked and the injury. The words “in the course of” relate
to the time, place and circumstances of the accident. An injury arises in
the course of certain employment if the employee is engaged in that
employment at the time the injury occurs. In general, collisions
occurring while employees are traveling to and from work do not arise
out of and in the course of employment.
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Medical Ctr. v. Hernandez, 319 Ga. App. 335, 336 (1) (734 SE2d 557) (2012)
(citations and punctuation omitted).
Here, Kendrick was not yet engaged in his employment at the time of the
accident. Rather, it was the day before his job was to begin and he was traveling to
a motel near the job site when the accident occurred. “Thus, as found by the ALJ,
appellate division and [as affirmed by operation of law in the] superior court, the
injuries sustained while [Kendrick was] traveling to work did not arise out of or in the
course of [his] employment.” Id. at 336-337 (1).
4. Continuous employment doctrine.
Kendrick claims that his injuries nevertheless are compensable under the
continuous employment doctrine. However, that doctrine does not apply in the instant
case.
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. Such an employee is, in effect, in continuous
employment, day and night, for the purposes of the Workers’
Compensation Act, 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.
7
Ray Bell Constr. Co. v. King, 281 Ga. 853, 855 (642 SE2d 841) (2007) (citations and
punctuation omitted).
In this case, Kendrick was required to lodge and work in Alabama during the
work week for the upcoming SRA job that he was traveling to at the time of the
accident. “Thus, once [Kendrick] had arrived at the job site and begun [his] duties for
the week, barring some deviation for a personal mission wholly foreign to [his]
employment, the continuous employment doctrine very well might have been
applicable to [him].” Medical Ctr. v. Hernandez, supra at 337 (2) (citation omitted).
However, having previously returned to his home in Georgia for the weekend, he was
not performing work duties or being paid by SRA as he traveled to a motel near the
work site.
Thus, at that point, [Kendrick was] off-duty and [not]
continuously employed. Any continuous employment coverage for [him]
would have [begun] only when [he was] back in the general proximity
of the place where [he was] employed and at a time [he was] employed
to be in that general proximity. As demonstrated by numerous cases, an
injury arises out of and in the course of a traveling employee’s
employment if he is injured in performing the duties of his employment.
Although [Kendrick was traveling to a motel in] the general proximity
of the [job] site at the time of the accident, it is undisputed that [he] had
not yet arrived at the site and thus had not yet resumed performing the
duties of [his] employment.
8
Medical Ctr. v. Hernandez, supra at 337-338 (2) (citations and punctuation omitted).
Under these circumstances, the continuous employee doctrine does not apply and
there was no error in “the board’s determination that the injuries, sustained in an
accident while the employee[ was] on [his] way to [a motel near his] work, were not
compensable.” Id. at 339 (2).
Judgment affirmed. Branch and Bethel, JJ., concur.
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