Many workers sustain injuries in vehicular accidents. Issues arise as to whether the incident is covered under workers’ compensation law or general negligence law. The practitioner needs to know how to proceed. Often, a decision needs to made as to whether the case would be better if one proceeded by pursuing a worker’s compensation claim or a personal injury suit. This is particularly true where a co-employee causes the accident.
Where a third party has caused the accident, it is often extremely helpful for the injured worker to be able to obtain medical benefits and lost wage benefit checks during the pendency of the underlying personal injury case. This helps to reduce the pressure to quickly settle the personal injury case, as the stress on the injured worker is reduced.
This paper will explore some of the various scenarios in which these type of accidents can arise.
II. Going to/Coming from Work
A. General Rule
The general rule in Georgia is that injuries sustained by an employee who is either traveling to or coming from his employment are not compensable. Corbin v. Liberty Mutual Insurance Company, 117 Ga. App. 823 (1968).
In Corbin, the employee was injured after leaving the premises where work was being done and beginning his trip home. Even though the injury occurred on the only access road from the main highway, the access road was owned by the City of Gainesville, and Corbin was working on a project for the City of Gainesville, the injury was not deemed to have arisen out of and in the course of his employment. Thus, the claim was denied.
The Corbin court did, however, delineate a number of exceptions to this general rule. They are:
- where the employer furnishes transportation as an incident of employment;
- where the employee is performing an act permitted or required by the employer and beneficial to the employer while going to or from work;
- where going to or from parking facilities provided by the employer; and
- in instances where an employee is on call and is furnished transportation or is reimbursed for his transportation costs.
Additionally, exceptions have been made where an employee is travelling from one employment location to another.
1) Where the employer furnishes transportation.
” When a workman is…. injured while being transported in a vehicle furnished as an incident of the employment, he is within ‘the course of his employment’ as contemplated by the act. In other words, when the vehicle is supplied by the employer for the mutual benefit of himself and the workman to facilitate the progress of the work, the employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor. This exception to the rule may arise either as the result of custom or contract, express or implied. It may be implied from the nature and circumstances of the employment and the custom of the employer to furnish transportation.” American Mutual Liability Ins. Co. v. Curry, 187 Ga. 342, 353 (1938).
In Curry, the worker died of a head injury he sustained when he fell off the transportation provided to him by his employer. As the transportation was provided as a favor to the worker and not in furtherance of the employers work, the injury was not compensable. Thus, two elements are necessary. One is that the transportation is provided by the employer and two, that the vehicle is used to further the employer’s work.
A worker who took advantage of an opportunity to share a ride with a co-employee, where the worker could have ridden by himself, and did not begin to get paid until he arrived at the job site, did not sustain a compensable injury in Jose Andrade Painting v. Jaimes, 207 Ga. App. 578 (1993). Again, the providing of the ride to the injured worker was considered to be a gratuity and not in the furtherance of the employer’s business.
Jose Andrade Painting should be contrasted with Adams v. United States Fidelity & Guaranty Co., 125 Ga. App. 232 (1971) in which the transportation was deemed to have been provided as part of the contract of employment, and the employer provided gas money. Thus, the transportation was considered to be in furtherance of the business of the employer.
Also, in both Lee v. Sears, 223 Ga. App. 897 (1996) and Eickhorn v. Boatright, 219 Ga. App. 895 (1996), where employee passengers sustained injuries while in company provided vehicles, they were deemed to be within the purview of the Act. The Court found that the providing of a company vehicle in which to transport the worker to and from the work site was beneficial to the company and facilitated the progress of the work. This was particularly extended in Lee, where the accident occurred after the driver and passenger stopped in a bar on their way home after a slow day of work, but then returned to their original route home prior to the accident.
Finally, it is the employer’s obligation, where transportation is provided, to place the employee in a safe place at the time of discharge from the vehicle. In Indemnity Insurance Comp. v. Bolen, 106 Ga. App. 684 (1962), an employee was injured after being let out of the employer-provided vehicle in the middle of a busy street. Bolen was hit by another vehicle as he attempted to get to the curb.
The key to this exception is whether or not the trip is beneficial to the employer. This is true even when the employee is travelling in a company provided vehicle.
2) Where the employee does an act beneficial to the employer
An excellent review of the conditions necessary to make an injury sustained while going to and from work compensable because of an employee’s performing an act beneficial to the employer is found in Travelers Insurance Co. v. Moore, 115 Ga. App. 295 (1967).
B. D. Moore worked for Clipper Petroleum Co., Inc. Part of Mr. Moore’s job was to audit the sales of consigned merchandise made by the company’s customers, collect the money owed his employer, and bring the money into the office. One evening, he went to a service station and got the money that was owed, carried the money home, and prepared his report. The next morning, while on his way to work with the money, he had a car accident and was killed.
The Court found that “[T]he bringing of the money to his employer’s office was not merely incidental to the employment but necessarily a specific duty thereof.” Id., at 296. As where transportation is provided, the Court looked to see if the trip was beneficial to the employer in order to determine compensability. Where there is a dual mission, and the employer is benefiting from the trip, the injury will be covered. See also, Lockhart v. Liberty Mutual Ins. Co., 141 Ga. App. 476 (1977).
In both Dickey v. Hardin, 202 Ga. App. 645 (1992) and Brown v. Weller, 217 Ga. App. 67 (1995), benefits were awarded when workers were injured in car wrecks on the way to seminars. Again, the employers were deemed to be benefiting from the trips.
It appears that the Courts are quite willing to find a dual mission exception to the going to/coming from rule where possible.
3) Where going to or from parking facilities provided by the employer
An employee who is injured while on premises either owned or maintained by his employer will generally be covered under the Act. This is true whether the employee is coming or going to work. It is well settled that “the period of employment generally includes a reasonable time for ingress to and egress from the place of work, while on the employers premises.” United States Casualty Company v Russell, 98 Ga. App. 181 (1958). In the Russell case, an employee who was injured thirty minutes prior to the start of work was found to have a compensable case. In Macy’s South v Clark, 215 Ga. App. 1661 (1994), an injury was deemed to be within the Workers’ Compensation Act when Ms. Clark was attacked and raped in a company maintained parking lot within fifteen minutes of leaving her job at Macy’s in downtown Atlanta.
Additionally, in the Clark case, the garage, which was opened to the public, was maintained by Macy’s particularly for the convience of its employees. Thus the parking lot was deemed to be part of Macy’s premises. Contrast this with Tate v Bruno’s Inc./Food Max, 200 Ga. App. 395 (1991), in which an employee who was injured while in a public parking lot was not deemed to be compensable.
The key in parking lot cases is whether “… a parking lot … is owned or maintained by the employer…” Id. at 396. This is because once when an employee parks in a parking lot that is owned or maintained by the employer, that person is not on route of his choosing independent of his employment, and is deemed to be on the premises of the employer. This is considered to be the same as if an employee went to one part of a warehouse, signed in and then reported to another part of the warehouse. The key in parking lot cases is the control of the area.
If a worker is injured on a street that is controlled or maintained by his employer he can also have a compensable injury. Peoples v Emory University, 206 Ga. App. 213 (1992). Peoples passed by the law school where he was a janitor, and was travelling to another building to sign in and obtain keys to the law school when he was hit on a street owned and maintained by Emory. Even though the street was open to the public, the claim was compensable. Contra. Corbin, supra., where Mr. Corbin’s injury was not deemed compensable even though he was injured on the city highway while coming from a job owned by the city. The difference was that Emory is a private entity.
Also, a worker injured on a public street while on the way to a parking lot owned or maintained by his employer has been found to have a compensable injury in Knight-Ridder Newspaper Sales, Inc. v. Desselle, 176 Ga. App. 174 (1985).
4) On-call and furnished transportation or reimbursed for transportation cost
Ordinarily, employees who are on-call, but are not reimbursed for their transportation, are treated no differently who are merely coming to work while being off-call. Foster v. Brown Transport Corp., 143 Ga. App. 371 (1977).
If the employee is reimbursed for the trip, he will have a compensable claim as in Lewis Wood Preserving Company v. Jones, 110 Ga. App. 689 (1964). Jones was subject to being called back to his employment location numerous times through out the night and was paid extra for making the calls. His accident occurred while he was on a direct route from his house back to his place of employment in response to one of these calls.
An aspect of Lewis Wood Preserving that this author found interesting was that the court found that “[T]his arrangement had the effect of keeping the employee under the control of the employer during the time in which the employee was subject to call and the accident occurring during such time, while the employee was actually en route to answer the special call, was one arising out of and in the course of his employment.” Lewis Wood Preserving, at 696.
It is interesting that, although the court in Lewis Wood Preserving seem to be concerned with the control of the control of the employer over the employee, this case has evolved to stand for the proposition that it was the additional reimbursement for the trip that was important in determining the compensability of the accident.
Another on-call case is American Mutual Liability Insurance Company v. Casey, 91 Ga. App. 694 (1955). In that case, the employee was on-call at all times. Mr. Casey was a superintendent for an asbestos contractor who did most of his paperwork at home. While traveling from the job site to his home one evening, he was involved in a one car automobile accident and died. As he did much of his work at home, the court found this case to be compensable.
One wonders how far this rule can be extended. This author wonders if anyone continuing to perform office work while at home in any situation can arguably make a claim compensable under Casey, or if this is only true where an individual does not have a specific office away from the house.
5) While traveling from one employment premise to another
This would appear to be analogous to parking lot cases such as Knight-Ridder Newspaper Sales, Inc. v. Dessellethat was cited and discussed earlier. In that case Desselle was walking to a company maintained parking lot when hit by a vehicle. His claim was compensable.
Also, in Wilson v. Georgia Power Co., 128 Ga. App. 352 (1973), the accident was compensable when an injury occurred while Wilson, a member of a travelling work crew, was involved in an automobile accident while travelling to the motel where he was staying near the next job site. See also, Larson, 1 Workmen’s Compensation Law, Sec. 15.14(a) at 4-57.
A current case of interest in this area is Thomas S. Harrison v. Winn Dixie Stores, Inc. and Integrated Health Care Delivery Services, Claim no. 254-29-0871, DOA 6/22/97. In that case, Mr. Harrison was working at one Winn Dixie store. He was asked to work on the second shift at another Winn Dixie store and accepted the offer. While traveling from one store to the other, Mr. Harrison was involved in an accident.
Harrison argued that the two stores were related entities and that he was traveling from one employment premise to the other. The employer/insurer argued that the two stores were separate entities, and that the trip from one store to another should be deemed to be equivalent to Mr. Harrison going to work. Thus, he would not have been within the course of his employment at the time of the accident.
Judge Bono ruled in favor of the employer/insurer at the administrative level. Oral argument has been held and the parties await a decision from the State Board. As in all travel cases, this case is extremely fact-intensive.
III. Continuous Employees
“By the very nature of his work, a traveling salesman is not usually restricted to working on a schedule of hours. His employment is broader in scope than that of ordinary employees; his hours are more irregular, and usually longer, than those of general employees working in a fixed location; his conduct of his duties is of necessary largely to his discretion; and his acts of administration to himself, such as eating a meal, because of the nature of his work, are not usually limited to a certain period, or periods, of time daily. Consequently, we think that in the cases involving the injury to a traveling salesman or going to or from, or while eating, a meal, such a strict interpretation of the phrase, “arising out of and in the question of the employment…is too limited … while lodging in a hotel or preparing to eat, or while going to or returning from a meal, he is performing an act incident to his employment, unless he steps aside from his employment for personal reasons… This does not mean that he can step aside from his employment for personal reasons, or reasons in no way connected with the employment, just as might an ordinary employee working on a schedule of hours at a fixed location. … His acts of ministration to himself should not – and we believe do not – take him outside the scope of his employment, so long as he performs these acts in a normal and prudent manner. Thornton v. Hartford Accident & Company, 198 Ga. App. 786 (1945), conformed to 72 Ga. App. 48 (1944).
In Thornton, death benefits were authorized when a traveling salesman who had eaten at a restaurant across the street from the hotel at which he was staying fell and fractured his skull while returning to the hotel where he was staying.
However, in United States Fidelity & Guaranty Co. v. Skinner, 188 Ga. 823 (1939), a travelling salesman who had gone eighteen miles to a restaurant on Tybee Island to eat dinner and see the ocean was considered to be on a personal mission and was denied benefits.
What would have happened if he only went to eat? Was it the distance from the place where he was staying that mattered, or was it the fact that was also on a personal mission “to see the ocean”? It once again appears that this area is extremely fact intensive.
In McDonald v State Highway Department, 127 Ga. App. 171 (1972), an employee who stayed away from his home during the week fell down the stairs of the motel in which he was staying after a night of drinking and playing cards with some co-workers. He was, in fact, returning to his room on the way back from the motel lounge at the time of his accident.
One wonders if the court would have reached the same result if he was injured while going to the bar for drinks. Would the court have looked at it as if it was a deviation since he was not going for a meal? Would the court have decided that these were acts that were being preformed in a normal and prudent manner?
In the recent case of Williams v Atlanta Family Restaurants, 204 Ga. App. 343 (1992), Williams argued that the McDonald case should provide her with benefits. Ms. Williams went out with other co-workers who were staying with her at a motel.
After refusing a ride back to the motel with her co-workers and remaining with some other people, she was raped and sodomized by the people she stayed with.
The Court focused on the phrase “in a normal and prudent manner” and determined that Ms. Williams did not behave in a normal and prudent manner by staying at a bar after hours with what the court referred to as “her new friends”. The Court decided that Ms. Williams stepped aside from her employment at the time when she decided to remain.
One wonders what would have happened if Ms. Williams had been drunk and then raped by a co-employee. Would the focus have been on the fact that she stepped aside from her employment or whether she had been acting in a normal and prudent manner?
Occasionally, employees, by the nature of their work, are determined to be on continuous duty and covered under the Act at all times. In Barge v. City of College Park, 148 Ga. App. 480 (1978), Barge, a police officer, had been actively involved in preparing the prosecution of a case. He was mysteriously found dead after an ambush. The court granted benefits.
Additionally, in Blair v. Georgia Baptist Home and Family Ministries Inc., 189 Ga. App. 579 (1988), Ms. Blair, a group leader at the home who stayed over night at residences provided by the home, died during a fire. Again, even though Ms. Chastain was not on duty but was subject to call if there was an emergency, her death was compensable because she was “at a place where the employee may reasonable be in the performance of her duties or engaged in doing something incidental thereto…” citing Barge at 481.
As in all travel cases, a close analysis of the facts of each specific case is necessary before determining if one falls under the continuous employment doctrine.
If an employee has deviated from his regular course of employment and then is injured, the injury will not be covered under the Act as is not arising out of and in the course of employment. As we saw earlier in Williamswhere a woman was raped after staying behind at a bar after her co- workers left and Skinner where a worker was killed after an automobile accident on the way back to his motel after having a meal 18 miles away from the hotel, the employees were deemed to be on personal missions unrelated to the employment, and benefits were denied.
The important thing for the practitioner is whether or not benefit was being provided to the employer at the time of the accident. This can be taken to an extreme, especially when workers are on the road.
In London Guaranty and Accident Company v. Herndon, 81 Ga. App. 178 (1950), Mr. Herndon was a traveling salesman residing in Daytona Beach, Florida with his wife and six-year-old child. After going out for an evening meal, Mr. Herndon, in a company vehicle, drove down a beach road instead of the regular highway back to his apartment.
For some unknown reason, he passed by his apartment and kept driving. After some distance, he returned to the main road and began to return back to his apartment. It was at this point that the car got stuck in the sand. As Mr. Herndon attempted to jack the car up out of the sand, his wife and child began looking for debris or lumber with which to help unstuck the car. When they returned, the found Mr. Herndon pinned beneath the vehicle.
The court determined that the deviation had ended as they were returning to the apartment. It is apparent that if this incident had occurred while they traveled away from the apartment there would have been no coverage. Additionally, Mr. Herndon made out his business reports at night so that there was going to be a benefit to the employer when he arrived home.
In the Lee case cited earlier, Lee was getting a ride home from work from his co-worker Sears. After drinking for a while, they began their ride home again. As the accident occurred on the way home on a regular road, Lee was barred from suing Sears and had a workers’ compensation remedy. Again, the deviation was over and the work mission had resumed.
Another case of interest in this area is that of General Accident Fire & Life Insurance Company Corporation v. Prescott, 80 Ga. App. 421 (1929). In that case, Mr. Prescott was a man who job was to collect payments for his employer. Some of the payments were made in eggs instead of cash. At some point during the day, Prescott spent time in a bar playing pinball and drinking liquor. He left the café, went to his company vehicle and then realized that he needed a bag for the eggs that he was to carry back to the office. As he attempted to return back to the café to get a bag, he was hit by a car and killed. Once again, the Court of Appeals determined that the trip was pursuant his employment and the injury was covered.
This is also similar to the case of Lewis v. Chatham County Savannah Metropolitan Planning Commission, 217 Ga. App. 534 (1995), in which Ms. Lewis, who did her employers banking, was at first going to eat lunch in a separate part of town and was going to then come back to the bank on the way back from lunch. She realized that she did not have enough time to do both missions, and started driving towards the bank. As the accident occurred as she was heading towards the bank, the accident was covered.
A recent case of interest in this area is Olde South Custom Landscaping Inc. v. Mathis, 229 Ga. App. 316 (1997). Derrick Mathis was a foreman for Olde South. At the end of the workday, he would return the company vehicle from the job sites to the Olde South Office.
As he was driving on Interstate 85, Mathis saw an elderly couple stranded on the emergency lane with the elderly man pushing the car. Mathis drove to the next exit, turned around and came back to the vehicle to help push the car. At that point, he was again traveling in the direction towards the office of Old South. Mathis’ efforts to help the couple turned tragic when he fell under the car he was pushing and was trapped under the vehicle that was behind it.
The Court found that this Good Samaritan Act of Mathis was a deviation from his employment as Olde South did not have any policy encouraging its employees to aid other motorists. Contra, US Fidelity & Casualty Company v. Hamlin, 98 Ga. App. 167 (1958).
In Glens Falls Indemnity Co. v. Sockwell, 58 Ga. App. 111 (1938), Sockwell was returning to his vehicle after providing assistance to a stranded motorist. As he was returning to his vehicle, he was deemed to have ended his deviation and was back within the course of his employment.
One final note in this area is that a deviation will still be compensable if it is deemed to be a “slight” deviation. The Lewis case is one where the deviation was deemed slight, thus supporting an award.
Also, in Hartford Accident & Indemnity Co. v. Souther, 110 Ga. App. 84 (1964), the deviation was considered to be slight when a tow truck operator returned to the site of an earlier tow to find his lost ring. When a car hit him, he was awarded benefits because the reason for his return to that location was because of the job. Again, as there are no specific guidelines set down as to what would make a deviation “slight”, one should proceed with caution when making this argument
V. Rest break / Lunch break
Generally, an injury that occurs while a claimant is on a regularly scheduled lunch break during which time the claimant has personal freedom of action is not compensable. Wilkie v. Travelers Insurance Company, 124 Ga. App. 714 (1971), is a case in which a claimant was denied compensation for injuries sustained during a regularly scheduled ten minute break.
The irony of the Wilkie case is that Ms. Wilkie was injured while going to the bathroom during this break. However, if she had sustained the same injury while going to the restroom on an unscheduled break, compensation would have been awarded. The Wilkie case also has an extensive review of all pre-1971 cases.
The length of time of the break does not matter. What is key is that it is scheduled and the claimant is free to do what he wishes.
Contrast this with American Hardware Mutual Insurance Company v. Burt, 103 Ga. App. 811 (1961), in which a delivery boy who was supplied with a motor scooter for deliveries was injured while taking the most direct route home for supper. By agreement with the employer, Burt made deliveries in route from drug store to his house and also the employer designated the time he could leave for supper. In this case, it was determined that the delivery boy did not have the necessary freedom of action to be considered to be solely on his own time.
In Lewis, supra., Ms. Lewis was doing her employer’s banking during her lunchtime when she was involved in automobile accident. Again, this was compensable.
In Miles v. Brown Transport Corporation, 163 Ga. App. 563 (1982) Ms. Miles was injured while on her employers premises but was leaving during her lunch break for a personal mission. It was established that Ms. Miles on occasion did perform work for her employer during lunch. Even though she was not performing an act for her employer at the time of the accident, she was deemed not to have the requisite freedom of action necessary for her case to be excluded from the Workers’ Compensation Act and it was compensable. This claim could have also been found compensable as an ingress/egress case.
The notion of performing acts beneficial to one’s employer was extended in Edwards v. State, 173 Ga. App. 87 (1984). Ms. Edwards slipped and fell at a fast food restaurant while getting lunch for her office manager. Although the State, as Ms. Edwards employer, argued that this was personal to the supervisor and not in furtherance of the States work, Ms. Edwards successfully was able to show that this aided her supervisor and, by extension, the State of Georgia by making it possible for him to work during his lunch hour and not have to leave.
Additionally, the break needs to be a regularly scheduled one. In Edwards v. Liberty Mutual Insurance Company, 130 Ga. App. 23 (1973) Ms. Edwards was injured while taking an unscheduled bathroom break. Her claim was compensable.
As with going to and from cases, an exception to the rules pertaining to lunch breaks and rest breaks involve reasonable ingress and egress to the property. Travelers Insurance Company v. Smith, 91 Ga. App. 305 (1954). Mr. Smith was injured while climbing stairs back into his building at the end of lunch. The court determined that Mr. Smith was deemed to have returned to his employment.
In our mobile society, many incidents occur while people are traveling either on behalf of themselves or on behalf of their employers. There promises to be many more cases in this area through the years, particularly as more people are telecommuting. Are those people on the job, or are they at home? As has been seen from the cases cited, these cases are very fact intensive, and it is hard to draw general rules other than to note that if an injured worker can show that he is performing some act on behalf of the employer, the case will usually be covered. If not, then they will be deemed to be on personal time and no compensation will be given.
THOMAS L. HOLDER received his B.A. from Case Western Reserve University in 1977 and his J.D. from Emory University in 1981. He is an AV rated attorney who has worked since 1986 as a name partner in the firm of Long & Holder, LLP, (www.longandholder.com) specializing in Workers’ Compensation law.
Mr. Holder is the current Chairman of the State Bar of Georgia Workers’ Compensation Section, the founder and first Chairman of the Atlanta Bar Association Workers’ Compensation Section and a current member of the Executive Committee of the Workers’ Compensation Section of the Georgia Trial Lawyers Association.
Mr. Holder is a member of the State Bar of Georgia, Atlanta Bar Association, American Trial Lawyers Association, Georgia Trial Lawyers Association, and the Lawyers Club of Atlanta. He may be reached at firstname.lastname@example.org or (404) 523-6100.