The Georgia Court of Appeals explained the interaction between two seemingly conflicting workers’ compensation doctrines last week: the “going and coming rule” and the “continuous employment doctrine.” Both refine the analysis of when work begins and ends, an analysis that is critical to the determination of compensability. There are a multitude of “going and coming” cases scattered throughout the nation’s jurisprudence, with most states having a few decisions which are intriguing.
In The Medical Center Inc. v. Hernandez, Case A12A1292 and A12A1315, two employees were injured, essentially while driving to work. With that, many might conclude that this is a simple case of “going and coming” and proceed no further. This case was factually complicated, however, by the fact that these two individuals were traveling four hours from Savannah to Columbus, not your typical commute from any perspective. This commute was necessitated by their employer, a drywall contractor, who had accepted a contract on a large project in Columbus. The project was obviously lucrative, thus the willingness to work at such a distance from home. So lucrative, in fact, that the general contractor provided these two employees with hotel accommodations Monday through Friday in Columbus.
This work arrangement therefore required a four-hour commute to Columbus each Monday morning, long work days in Columbus all week with employer-provided hotel stays each night, and long four-hour commutes home each Saturday.
Early in 2010, the two were passengers in a truck owned by a third co-worker. They were near the end of their long commute to Columbus when they were involved in an accident. One employee was killed, and the other was “hospitalized for weeks with serious injuries.”
The Court explained the requirement that, “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.” This is the foundation of the classic “going and coming rule,” and is a fixture in many workers’ compensation laws. The Court explained that this phrase “in the course of” refers to the “time, place and circumstances of the accident.” Essentially, while in transit, one is generally not “in the course of” employment.
The injured worker, the deceased employee’s survivors and the hospital (The Medical Center) at which they received care appealed the trial adjudicator’s denial of workers’ compensation benefits. They argued that the “continuous employment doctrine” should trump the “going and coming rule.” This doctrine holds that “continuous employment” provides “broader workers' compensation coverage” to an employee “who is required by his employment to lodge and work” in a particular location because of the requirements of work. Such an employee is essentially “in continuous employment, day and night, for the purposes of the Workers' Compensation Act.” On its face, this doctrine would also seemingly be applicable to the facts of this case.
This logical extension of coverage is a recognition that “but for” the requirements peculiar to that traveling employment, an accident in that particular locality would not occur. Much ado followed an Australian Court’s decision in 2012 that held an employee’s injuries compensable when a light fixture fell on her in a hotel room bed while she was engaged in sexual intercourse. There, the defense argued this was an ordinary incidence of life, and not a work injury. Essentially, the compensability of that accident was founded on the conclusion that as a traveling employee, any injury while on a work-trip was compensable. This is consistent with the “continuous employment doctrine.”
Thus, while away from home to accommodate the employer’s business, the employee is covered for all events. The logic is simple—the employment caused the presence in the hotel room, or in the town, or in the restaurant in which such an accident occurs. But for that employment need, the employee would be home and would logically not suffer that accident.
The logic of the argument for compensability of the two drywall employees is apparent under this same doctrine. The Georgia Court acknowledged that these were traveling employees and that the “continuous employment doctrine” would apply to their presence in Columbus each week.
The Court concluded, however, that when they left Columbus each Saturday, that special status ended. They were “off the clock” at that point and were commuting, and thus “not being paid by their employer.” As such, they were no different during their admittedly long commute to and from Columbus than any employee during their normal commute to and from work. Their special status under the “continuous employment doctrine” started when they began work each Monday and ended each Saturday when they “clocked out.”
So, the “continuous employment doctrine” would afford them additional rights for their evenings and mornings in Columbus. If this accident had occurred on Monday evening, after applying drywall all day, as they drove to the hotel, it would have been compensable under this doctrine. Likewise, if the accident had occurred as they drove from the hotel that Monday evening to a pizza parlor, the same result. Had the accident occurred on a late-night trip from the hotel to a drug store for cough drops, the same outcome.
However, as it occurred on the way to that “continuous employment” and not during that “continuous employment,” it was not compensable because of the “going and coming rule.”
Different states may have decided this differently. However, the case of The Medical Center Inc. v. Hernandez is instructive on the interaction between these two compensability-defining doctrines.
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