November 18, 2014
SOUTHLAND WASTE SYSTEMS OF GEORGIA, INC
Reconsideration denied December 4, 2014 -- Cert. applied for.
Workers' compensation. Houston Superior Court. Before Judge Nunn.
Buzzell, Graham & Welsh, Stephen M. Welsh, for appellant.
Speed, Seta, Martin & Trivett, Stephanie A. Rockwell, for appellee.
DOYLE, Presiding Judge. Miller, J., concurs. Dillard, J., concurs in judgment only.
Doyle, Presiding Judge.
Latoya Bonner-Hill appeals the denial of her claim for workers' compensation benefits as a result of her husband's death. For the reasons that follow, we reverse.
The record shows that Adonis Hill was hired by Southland Waste Systems of Georgia, Inc. (" Southland" ), on February 15, 2010. Southland's operation is located in a large building off State Route 247, which runs in a general north and south direction. Running parallel to State Route 247 is a Georgia Southern and Florida Railway railroad track, which must be crossed in order to access Southland, and there is no other point of entry for a vehicle. The crossing consists of a short paved entrance road, which then continues slightly past [330 Ga.App. 152] Southland's building. After crossing the railroad tracks, an employee may turn right in front of Southland's building to access the parking area, which is between Southland's building and other structures.
Southland leases the property from B& D Services, Inc., and the property consists of " [a]pproximately 2.0 acres with a [shop building] and all improvements thereon at the western side of [State Route 247] ... ." The lease also states that " [t]he Leased Premises
shall include access to the property described above over an entrance road presently located on Lessor's property running from [State Route 247] to the [2.0 acre property]." This entrance road was for " ingress and egress including use by [Southland's] vehicles and vehicles of its employees, and business invitees."
Within a month of hire, on March 4, 2010, Hill was headed to work and driving southbound on State Route 247. As he turned right into the entrance roadway to cross the railroad tracks, his vehicle was struck by a northbound train. The collision caused numerous injuries, resulting in Hill's death.
Hill's wife filed a claim for workers' compensation death benefits on behalf of herself and three minor children. Southland defended against payment of those benefits, asserting that Hill's death did not occur in the course of his employment.
The administrative law judge (" ALJ" ) determined that the claim was compensable based upon a finding that the short entrance road, which crossed the railroad track, was the only route by which Hill could access his workplace. The ALJ also found that based on the lease between Southland and the lessor, Southland " had use of the access road which started at Highway 247 Spur and that the employer had use of this entrance for ingress and egress of employees and visitors." The ALJ concluded that because Hill had no alternative route to take to get to the building, the entrance road was part of the business premises, his arrival was during a reasonable time before his appointed shift time, and Southland had control over the entrance road pursuant to the lease. Southland appealed to the Board.
The Board reversed the ALJ, holding that because Hill had not arrived at work prior to the accident, the ingress/egress rule did not apply. The Board concluded that this exception only applies to accidents that occur on the employer's premises and because Southland did not exclusively own, maintain, or control the entrance road [330 Ga.App. 153] upon which Hill was traveling, the Board determined that Hill had not arrived at work, thus excepting this case from the ingress/egress rule.
Bonner-Hill sought reconsideration of the order, and the Board denied her motion. She now seeks appellate review of this ruling, which was affirmed by operation of law in the superior court.
Bonner-Hill argues that the Board erred by determining that an employer must have exclusive use of a property in order to have sufficient " control" of the property for the ingress/egress rule to apply when determining whether the accident or injury arose out of and in the course of employment.
On appeal from an award of the Appellate Division of the State Board of Workers' Compensation, this Court examines the record to see if there is competent evidence to support the award and construes the evidence in a light most favorable to the prevailing party. ... [I]t is axiomatic that the findings of the State Board of Workers' Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this Court has any authority to substitute itself as a fact finding body in lieu of the Board.
" However, erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review." 
Under the Workers' Compensation Act, a worker is entitled to compensation if he or she is injured in an accident that arose
out of and in the course of employment. " 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." 
" The general rule is that an accidental injury which occurs while an employee is traveling to or from work does not arise out of or in the [330 Ga.App. 154] course of employment, and therefore the injury is not compensable under the [Act]."  This is so because
[t]he hazards encountered by employees while going to or returning from their regular place of work, before reaching or after leaving the employer's premises, are not ordinarily incident to the employment, and for this reason injuries resulting from such hazards are in most instances held not to be compensable as arising out of and in the course of the employment.
Exceptions to this general rule have been created for certain instances of ingress and egress. Under this ingress/egress rule, if an employee is injured while on the employer's premises in the act of going to or coming from his place of work, the injury is compensable. This rule is predicated, in part, on the idea that the employee has not departed from the premises if he or she " has not started traveling a route of his choosing wholly disconnected with his employment." 
Application of the ingress/egress exception requires a factual inquiry into whether the location at which the injury occurred constituted a portion of the respondent business' premises. The [330 Ga.App. 155] ingress/egress exception will apply if the area where the claimant is injured is an area (1) limited (or very nearly so) to the respondent business, even if the business's right to the area is merely a leasehold interest or some other nonexclusive access;  or (2) owned,
maintained, or controlled by the business, even though the area is heavily traversed by the public without connection to the business.
Here, when applying our case law to the undisputed facts, the Board erred by reversing the ALJ's award of benefits. Southland's lease includes two acres of property west of State Route 247 within which the train tracks run, and the lease specifically states that the premises " shall include access to the property ... over [the] entrance road" on which Hill was driving when he was killed. Thus, Hill had arrived at the employer's premises when the accident occurred, triggering application of the ingress/egress rule. Furthermore, the fact that the railway intersected what was essentially a driveway to the business does not remove the case from the ambit of the ingress/egress rule. Accordingly, the Board erred by reversing the ALJ's award of benefits.
Miller, J., concurs. Dillard, J., concurs in judgment only.
[330 Ga.App. 156] Dillard, Judge, concurring in judgment only.
I concur in judgment only because I do not agree with all that is said in the majority opinion. As such, the majority's opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).