Workers’ Comp Updates: Winter 2017

By Dylan Bess

EMPLOYER SUBJECT TO THE ACT WILLS V. CLAY COUNTY, 339 GA. APP. 79, OCTOBER 26, 2016

In this case, the Court affirmed the trial court’s determination that the employer was subject to the Act because he had at least three employees regularly in service.

Wills entered into an agreement with Clay County to complete a construction project. Clay County asked Wills to sign a contract which included a provision requiring him to supply his workers with workers’ compensation insurance. The provision was ultimately removed from the contract when Wills told the county that the law did not require him to have workers’ compensation insurance.
For purposes of completing the project, Wills hired the claimant Brown and two other men. Wills and Brown had worked together on other projects. During the Clay County project, Brown slipped off the roof and injured his leg.

Brown filed a Georgia workers’ compensation claim naming Wills as his employer and Clay County as the statutory employer. The Board issued an Award against Wills but found that Clay County was not a statutory employer. The Appellate Division of the Board affirmed the ALJ’s Award and the superior court affirmed the finding of the Appellate Division.

Wills appealed to the Court of Appeals, arguing that the superior court erred in affirming the Board’s findings that 1) he had at least three employees regularly in service which subjected him to the Act, 2) Clay County was not a statutory employer, and 3) he willfully failed to obtain workers’ compensation coverage which justified a penalty and attorney fees against him.

Wills conceded that he had three employees for the Clay County project, but argued that they were not “regularly in service” as required by O.C.G.A. § 34-9-2(a)(2). The Court looked to Jones v. Cochran, 46 Ga. App. 360 (1933) which held that the phrase “regularly in service” “has reference to such employment as is more or less permanently adapted to the business of the employer at the particular time, and continues through a reasonably definite period of time and possesses the characteristics as applied to the business of being unvarying in practice[.]” In that case, the Court held that a bakery business was subject to the Act even though it hired the requisite amount of people only certain times of the year.

The Court also cited McDonald v. Seay, 62 Ga. App. 519, 520 (1933) where the Court stated that the word “regularly” is not synonymous with “constantly” or “continuously” but rather refers to the question whether the occurrence is or is not an established mode or plan in the operation of the business. Because the evidence showed that Wills was in the practice of hiring additional employees when a construction project required it, the Court determined that he was an employer subject to the Act.
In determining whether Clay County was a statutory employer, the Court turned to O.C.G.A. §34-9-8(a), which lists the entities that may be considered statutory employers subject to the Act, as well as the line of cases holding that a mere premises owner is not subject to the Act. Here, Clay County owned the gymnasium where Brown was injured, but did not have control over Wills’ construction project or the management of his employees. For these reasons, the Court affirmed the determination that Clay County was not a statutory employer.

Finally, the Court found no error in the superior court’s affirmance of the attorney fee award against Wills because O.C.G.A. § 34-9-126(b) makes mandatory an award of attorney fees for failure to obtain coverage. The same statute also grants the Board discretion on whether to award penalties. The Court held that the superior court did not err in affirming the Board’s award of penalties because there was some evidence that Wills willfully violated the Act by failing to maintain coverage.

OTHER NOTABLE CASES

There have been three recent cases from the Court of Appeals that were not brought as workers’ compensation claims, but may influence the practice of workers’ compensation claimant’s attorneys.
Endsley v. Geotechnical & Environmental Consultants, Inc., 2016 Ga. App. LEXIS 680, October 28, 2016.
In this personal injury case, a workers’ compensation carrier intervened at trial to enforce its subrogation lien. The Court of Appeals found that the trial court abused its discretion in failing to bifurcate the trial which resulted in comments and instructions throughout the trial that referred to the collateral source of workers’ compensation benefits. The Court of Appeals also found that the trial court’s instructions to the jury regarding the workers’ compensation lien may have been error. However, both errors were harmless because the jury returned a defense verdict and never reached the issue of damages.

SAXON V. STARR INDEM. & LIAB. CO., 2016 GA. APP. LEXIS 655, NOVEMBER 16, 2016

In this case, a worker was injured in a car crash where the at-fault driver was his coworker. The employer had no workers compensation insurance. The injured worker did not file a workers’ compensation claim but instead brought a tort claim. The injured worker argued that it is against public policy for the employer’s liability insurer, the coworker’s insurer, and his own UM insurer to all be shielded from liability when the employer does not meet its statutory obligation to procure workers’ compensation insurance. The Court of Appeals disagreed since the Workers’ Compensation Act provides a remedy against the employer.

EXAMINATION MGMT. SERVS. V. STEED, 2016 GA. APP. LEXIS 692

Here, an injured worker was being surveilled by a private investigator. The private investigator called 911 claiming that she saw the injured worker on his porch with a sawed-off shotgun. Police are dispatched and, after a brief confrontation, arrest the injured worker. The officers search the home and car of the injured worker and do not find a sawed-off shotgun. The injured worker sued the investigator for defamation and false imprisonment. The Court of Appeals found that the trial court erred in denying the investigator’s motion for summary judgment, reasoning that the investigator’s statements to 911 were privileged because they were made in good faith. Further, since it is possible that the weapon was disposed of because police arrive, there was no evidence of malice on the part of the investigator sufficient to overcome the privilege. The false imprisonment claim failed because the evidence showed that the investigator did not cause or direct the police to detain the injured worker.

About the Author
Dylan Bess is an attorney with the law firm Morgan & Morgan Atlanta, PLLC. He currently handles workers’ compensation claims, representing injured workers. He can be reached at (404) 965-1886 or by email at dbess@forthepeople.com.

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