Georgia Restaurant Manager’s Gunshot Wound at Home During Attempted Robbery Was Compensable

A Georgia appellate court, reversing a decision of a state Superior Court, held that substantial evidence supported a finding by the State Board of Workers’ Compensation that a restaurant manager’s gunshot wound, sustained during an attempted robbery as the manager and the restaurant owner returned to their residence at the end of the work day, arose out of and in the course of the manager’s employment [Kil v. Legend Brothers, LLC, 2019 Ga. App. LEXIS 368 (June 21, 2019)]. The court said the record supported the Board’s finding that part of their daily routine included going over the receipts and daily operations when the two got home each day. Since the manager’s duties had not concluded for the day, his claim was not barred by Georgia’s version of the going and coming rule.

Background

Kil worked as manager of a restaurant, overseeing the general operation of the facility. Kil lived with his coworkers and the restaurant’s owner. After returning from work each day, Kil and the owner would spend approximately one hour reviewing the restaurant’s daily sales, receipts, accounts, and inventory.

On May 19, 2016, the owner drove Kil and another coworker back to their home without detouring. The owner had the receipts from the restaurant in his possession since he and Kil planned to review the restaurant’s records at home as they normally did. Almost as soon as they pulled into the garage, three men ran up to the car and demanded at gunpoint that they hand over the “bag of money.” The owner and Kil told the men that they did not have any money, at which point the attackers demanded that they open the trunk. As they exited the car to do so, one of the attackers noticed that Kil had a gun in his sweater. The attackers fled, but while doing so, one of them fired a shot, hitting Kil in the forearm. Kil spent more than two weeks in the hospital and underwent multiple surgeries. Kil did not return to work.

ALJ & Board Determinations

An ALJ ruled that Kil’s injury arose out of and in the course of the employment, finding that Kil was in the “continuous employment” of his job since he had an obligation to go over the day’s receipts with the owner when they all arrived at the residence. The Board concluded that the “continuous employment” doctrine did not apply, but found there was sufficient evidence to conclude that Kil’s injury otherwise occurred in the course of his employment. The Board further concluded that the injury arose out of Kil’s employment because the circumstances of the robbery demonstrated that the perpetrators had specifically targeted Kil and the owner due to their connection to the restaurant and that they had expected them to carry money or a “bag of money” when they returned home.

Superior Court Reverses Board

The superior court concluded that Kil’s injury did not arise out of his employment because he was injured as he arrived home from the restaurant—“an act which he would have had to do irrespective of the scope of his job duties.” The superior court also noted that Kil was shot because one of the assailants noticed that he possessed a firearm, which the superior court concluded “had nothing to do with performing his duties for his employer.” The superior court also concluded that Kil’s injury did not occur in the course of his employment because he was injured at home, at a time when he was not performing any work duties, and he was not a “traveling employee” or a “24-hour on call employee.”

Appellate Court’s Decision

The appellate court acknowledged that ordinarily injuries sustained while going to or coming home from work were not compensable. The court stressed that the scope of Kil’s job responsibilities was an issue of fact for the Board to determine, and, notably, the Board had concluded that Kil’s “job responsibilities had not yet ended” for the day. There was evidence in the record to support that conclusion. The court added that the record was clear that one of Kil’s key job responsibilities was to spend around an hour everyday at the home he and the owner shared going over the restaurant’s daily sales, receipts, accounts, and inventory.

At the time of his injury, Kil was with the owner and the two were in possession of the receipts that they were going to review as they usually did at home each day. Thus, there was evidence showing that Kil was exactly where he was expected to be to continue performing his duties as manager and that he was in the course of fulfilling those duties at the time of the robbery. The court added that the superior court’s emphasis on the fact that Kil would have needed to go home regardless of the scope of his job responsibilities was an erroneous application of the law. By focusing solely on the concept of “equal exposure,” the superior court ignored the State Board’s explicit finding that Kil’s presence in the garage at the time of the robbery was a direct result of his job responsibilities.

Based on the foregoing, the appellate court concluded that there was evidence supporting the Board’s determinations that Kil’s injury occurred within the course of his employment and that his injury arose out of his employment. The court, therefore, reversed the judgment of the superior court.