                                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.

                                          3
      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

                                          4
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

                                          5
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.


                                         6
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.




                                         9
