Glen Oaks Turf, Inc

v. Butler, 191 Ga. App. 840, 383 S.E.2d 203 (1989). Notation ‘‘farmer’’ on death certificate of caretaker. — When there was sufficient evidence to authorize a finding that the county estate on which the decedent was a caretaker was not used for farm purposes, a finding was not demanded that the employee was excluded from the provisions of the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) by reason of being a ‘‘farm employee’’, despite the listing of the deceased’s occupation on a death certificate 34-9-2 as a ‘‘farmer’’. Wender & Roberts, Inc. v. Jones, 95 Ga. App. 82, 97 S.E.2d 160, cert. dismissed, 213 Ga. 375, 99 S.E.2d 142 (1957). Fewer Than Three Employees Regularly in Service Legislative intent. — The intent of the legislature in striking the provision excluding ‘‘casual employees’’ contained in Ga. L. 1920, p. 167, § 15 was to remove from the exceptions of the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) those temporary employments which under the original language might have been deemed merely ‘‘casual’’, and to differentiate the language of this section from the acts and decisions of other states in which the employee must be a person in constant and continuous service for however brief a period of time. Maloney v. Kirby, 48 Ga. App. 252, 172 S.E. 683 (1934). Meaning of ‘‘regularly in service.’’ — The phrase ‘‘regularly in service’’, as used in this section, referenced such employment as was 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 characteristic as applied to the business of being unvarying in practice, and steady or uniform in course and steadily pursued, and as contradistinguished from an employment that was merely casual or for a particular occasion, and which did not have the characteristics of permanency. Jones v. Cochran, 46 Ga. App. 360, 167 S.E. 751 (1933); Russell C. House Transf. Co. v. Hamilton, 63 Ga. App. 632, 11 S.E.2d 703 (1940). The 10 (now three) employees required to be ‘‘regularly in service’’ to render the employer and employees subject to the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) are employees of the character entitled to compensation as employees under those provisions. Chandler v. Harris, 47 Ga. App. 535, 171 S.E. 174 (1933). Employees ‘‘regularly in service’’ refers to persons performing work to carry on the ordinary or established custom, mode, or plan in the operation of the business, 452 34-9-2 WORKERS’ COMPENSATION though the work may be recurrent or intermittent rather than constant or continuous. Baratta’s Italian Restaurant v. Mason, 107 Ga. App. 240, 129 S.E.2d 578 (1963). ‘‘Regularly’’ construed. — It is not necessary that an employee work exclusively for an employer to be ‘‘regularly in service’’. Empire Glass & Decoration Co. v. Bussey, 33 Ga. App. 464, 126 S.E. 912 (1925). The word ‘‘regularly’’ refers to whether an occurrence is in an established mode or plan in the operation of the business, and has no reference to the constancy of the occurrence. Employers Liab. Assurance Corp. v. Hunter, 184 Ga. 196, 190 S.E. 598 (1937); McDonald v. Seay, 62 Ga. App. 519, 8 S.E.2d 796 (1940); Russell C. House Transf. Co. v. Hamilton, 63 Ga. App. 632, 11 S.E.2d 703 (1940). The word ‘‘regularly’’ is not synonymous with ‘‘constancy’’, as there are businesses of importance which employ numbers of people regularly, which employ none of them continuously, or businesses which require a large number of employees, nearly all or a large number of whom are employed only periodically, for the reason that the needs of the business require their services only at intervals or periods, whenever the business is in active operation. Employers Liab. Assurance Corp. v. Hunter, 184 Ga. 196, 190 S.E. 598 (1937). The word ‘‘regularly’’ is not synonymous with ‘‘constantly’’ or ‘‘continuously’’; work may be intermittent and yet regular, and people may be regularly but not continuously employed. McDonald v. Seay, 62 Ga. App. 519, 8 S.E.2d 796 (1940). The word ‘‘regularly’’ is not synonymous with ‘‘constancy’’. Russell C. House Transf. Co. v. Hamilton, 63 Ga. App. 632, 11 S.E.2d 703 (1940). Less than minimum number of workers. — The fact that on the day of injury less than the minimum number of people are working will not prevent the operation of the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.), if it was shown that under the ordinary course of conducting the business such number of people were ‘‘regularly’’ employed, as defined in this section. McDonald v. Seay, 62 Ga. App. 519, 8 S.E.2d 796 (1940). 34-9-2 If employment of the minimum number of employees continues through a reasonable, definite period, and is not casual or incidental, the workers’ compensation law applies, even though at times less than the minimum number are actually working. McDonald v. Seay, 62 Ga. App. 519, 8 S.E.2d 796 (1940). Election to be bound by Workers’ Compensation Act. — Trial court properly granted a painting company summary judgment in a wrongful death action because the company was immune from suit pursuant to the exclusivity provision of the Workers’ Compensation Act (WCA), O.C.G.A. § 34-9-11(c), when the company voluntarily elected to be bound by the WCA by contracting with an employment agency; although the company conceded that the company had regularly in service less than three employees, the company signed the agency’s ‘‘Confirmation of Rates and Services,’’ specifically agreeing to pay the rate for temporary employees, which included coverage for workers’ compensation benefits and elected to be bound by the WCA. Sabellona v. Albert Painting, Inc., 303 Ga. App. 842, 695 S.E.2d 307 (2010). Adding total number of employees of two or more separate businesses. — It is not permissible, in order to ascertain whether three or more persons are regularly employed, to add the total number of employees of two or more separate businesses, even though both are owned by the same person, if they are in fact separate and distinct, and if the operation of the two businesses is not a scheme or device to avoid the payment of workers’ compensation, even though both may be operated from the same address. Butler v. Lee, 97 Ga. App. 184, 102 S.E.2d 498 (1958). It is not permissible to add the total number of employees of two or more separate businesses in order to come up with the required number of employees. Allen v. Clein, 99 Ga. App. 133, 108 S.E.2d 291 (1959). Adding total number of employees over a period of time. — Fact that employer over a period of time employs a total equaling or exceeding requisite number of employees does not bring an employer within the workers’ compensation 453 Fewer Than Three Employees Regularly in Service (Cont’d) law (see now O.C.G.A. § 34-9-1 et seq.); the employer comes within the law only if the employer has ‘‘regularly in service’’ the requisite number at any one time. Fowler v. Gilmer County Comm’rs of Rds. & Revenues, 164 Ga. App. 1, 294 S.E.2d 708 (1982). Employment for several weeks each year. — An employer who is compelled, regularly each year, for the duration of several weeks, on account of an increase in the volume of business done during that season of the year, to employ 10 (now three) or more persons, is, relative to an employee who during such period of time sustains an accidental injury which arose out of and during the course of the employee’s employment, subject to the provisions of the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) as having ‘‘regularly in service’’ 10 (now three) or more employees in the same business within the state. Russell C. House Transf. Co. v. Hamilton, 63 Ga. App. 632, 11 S.E.2d 703 (1940). Intermittent employment of requisite number of employees. — Employer who for 14 weeks preceding an accident intermittently employed 10 (now three) employees during a week in the ordinary or established mode or plan in the operation of its business, though in some weeks it employed less than 10 employees, is held to have regularly in service 10 employees and to be covered by the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.). Baratta’s Italian Restaurant v. Mason, 107 Ga. App. 240, 129 S.E.2d 578 (1963). Superior court did not err in affirming the decision of the Appellate Division of the Georgia Board of Workers’ Compensation awarding the claimant benefits based on an injury the claimant suffered while under the contractor’s employ because the contractor was subject to the Workers’ Compensation Act, O.C.G.A. § 34-9-1 et seq., as the contractor employed three employees regularly because the claimant testified that the claimant and the contractor had worked with an additional person about two to three times a year; 34-9-2 near the time of the job subject to this suit, the contractor had two other jobs for which the contractor had hired three to four employees; and the contractor was in the practice of hiring additional employees when a construction project required it. Wills v. Clay County, 339 Ga. App. 79, 793 S.E.2d 432 (2016). Employee of one of two separate businesses. — When, under the evidence, a cotton gin and a planning mill were not parts of the same business, within the meaning of this section, although they were each operated with power from the same boiler and engine and were owned and controlled by the same persons, and the decedent was employed only at the gin, at which less than 10 (now three) employees were regularly employed, and no election had been made by the employee and the employers to become bound by the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.), its provisions were inapplicable. Carswell v. Woodward Bros., 38 Ga. App. 152, 142 S.E. 907 (1928). The evidence authorized a finding that, irrespective of whether or not the defendant owned and operated a lodge and camp, each was operated as a separate and distinct business, and that the accident for which compensation was claimed arose out of and in the course of the employment of the claimant’s child while in the sole employ of the lodge, in which less than 10 (now three) employees were regularly employed, and that, as it did not appear that there was any agreement by which the defendant and the employees came under the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.), the claimant was not entitled to compensation. Murray v. McConnell, 66 Ga. App. 868, 19 S.E.2d 318 (1942). Partner or corporate president. — To afford coverage, this section requires a certain number of employees regularly in service and of the character entitled to compensation under the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.); it cannot include a partner, even though the partner may do work for which the partner receives compensation in the nature of wages, nor can the president or others in the management of a corporate 454 34-9-2 WORKERS’ COMPENSATION employer, whose duties are those of management, be counted, as these persons are in the position of employers. Sanders Truck Transp. Co. v. Napier, 117 Ga. App. 561, 161 S.E.2d 440 (1968). Exemptions by corporate officers are ineffective to reduce the employee count for determining applicability of the Workers Compensation Act (see now O.C.G.A. § 34-9-1 et seq.) except when the exemptions reduce the employee count to zero. Once an ‘‘additional employee’’ is hired, corporate officers must be included in the total employee count regardless of whether they are personally exempt from the act. Hitchcock v. Jack Wiggins, Inc., 249 Ga. App. 845, 549 S.E.2d 806 (2001). Corporate officer performing nonexecutive work. — Unless there is such identity between an alleged employee and corporation that it deprives the latter of the power to control the relationship of employer and employee, as when the employee practically is the corporation or owns enough stock to dictate its policy and prudential affairs, it is generally held that a corporate officer performing nonexecutive work attended with the normal incidents of employment is an employee. Denis Aerial Ag-Plicators, Inc. v. Swift, 154 Ga. App. 742, 269 S.E.2d 890 (1980). Applicability to principal contractor or subcontractor. — A statutory employer under O.C.G.A. § 34-9-8 is by law subject to the Workers’ Compensation Act, O.C.G.A. § 34-9-1 et seq., and is required by law to comply with its requirements and the number of employees engaged by a statutory employer need not be affirmatively shown in order for such employer to take advantage of tort immunity offered by the Act. Hensel Phelps Constr. Co. v. Johnson, 161 Ga. App. 631, 295 S.E.2d 843 (on motion for rehearing), rev’d on other grounds, 250 Ga. 83, 295 S.E.2d 841 (1982). Contractor/subcontractors. — To sustain a workers’ compensation award entered against a principal contractor in favor of an employee of a subcontractor as permitted by O.C.G.A. § 34-9-8, the principal contractor must have the minimal number of employees required by O.C.G.A. § 34-9-2. Bradshaw v. Glass, 34-9-2 252 Ga. 429, 314 S.E.2d 233 (1984); G & M Quality Bldrs., Inc. v. Dennison, 173 Ga. App. 578, 327 S.E.2d 773 (1985); Smith v. Cornette, 173 Ga. App. 577, 327 S.E.2d 774 (1985). Fluctuating employment in bakery operation. — When the volume of a bakery business, products of which were sold through traveling salespeople, fluctuated periodically, and the number of employees in the business fluctuated accordingly under and above 10 (now three), the 10 or more employees working during a period when the volume of business and the demand for the product had increased, whose services were necessary to the operation of the business during the period of increased volume, and who were likely to be retained in service for a reasonably definite period of time during which the work for which they were employed was unvarying and steadily pursued, were ‘‘regularly in service’’, and the employer, unless otherwise exempt from the operations of the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) during this period, was subject to these provisions. Jones v. Cochran, 46 Ga. App. 360, 167 S.E. 751 (1933). Rotation of laborers on public works projects for city. — When a city by resolution made an appropriation for unemployment relief under the direction of the city manager, and administered the fund by employing laborers on its public property at the rate of 15¢ an hour on a 10-hour day and 5 1⁄2 day week, rotating such laborers for a week’s employment at a time so as to give employment to as many as possible, an employee engaged in such work for the city at the time of the employee’s injury, whose work consisted in tearing down a shed which housed city mules, trucks, and wagons, and was to be replaced with another building, was subject to the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.), as was the employee’s employer. City of Waycross v. Hayes, 48 Ga. App. 317, 172 S.E. 756 (1934). Voluntary payments to employee after injury. — An employer’s voluntary payments to an employee after an injury did not establish that the employer voluntarily elected to bring the employer under 455 Fewer Than Three Employees Regularly in Service (Cont’d) the broad provisions of the Workers’ Compensation Act (see now O.C.G.A. § 34-9-1 et seq.) when there was no evidence which established that the employee was ever told or led in any way to believe that the employee was covered by workers’ compensation, nor that the employee detrimentally relied on such a representation. Horne v. Exum, 204 Ga. App. 337, 419 S.E.2d 147 (1992). Presumptions. — There is no presumption that an employer and an employee are operating under the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) when it does not appear that the employer regularly had in service as many as 10 (now three) employees in the same business within this state. Bussell v. Dannenberg Co., 34 Ga. App. 792, 132 S.E. 230 (1925). There is no presumption that an employer has a sufficient number of employees to bring the employer under the provisions of the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.). Sanders Truck Transp. Co. v. Napier, 117 Ga. App. 561, 161 S.E.2d 440 (1968). Number of employees as question of fact. — Whether or not the defendant employed 10 (now three) or more people within the purview of the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) was a question of fact to be determined by the jury, and there was sufficient evidence to authorize the finding that the requisite number was not so employed. Critchfield v. Aikin, 33 Ga. App. 668, 127 S.E. 816 (1925). Burden of showing requisite number of employees. — The burden of showing the employer-employee relationship and of showing that the employer was subject to the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) by virtue of having the requisite number of employees or that the employer had voluntarily accepted its provisions rests upon the claimant. Goolsby v. Wilson, 150 Ga. App. 611, 258 S.E.2d 216 (1979). If the purported employer has no express knowledge that a claim is brought against the employer in an individual ca- 34-9-2 pacity and when so apprised does not controvert the basic fact that the employer is or was an employer of the alleged employee, then the employer need not file the form prescribed by rule promulgated under O.C.G.A. § 34-9-221 to controvert right to benefits nor would the employer be subject to an adverse presumption from the employer’s failure to file such form, but rather the burden of showing the employer-employee relationship and of showing that the employer was subject to provisions of the Workers’ Compensation Act (see now O.C.G.A. § 34-9-1 et seq.) by virtue of having the requisite number of employees rests upon the claimant. Fowler v. Gilmer County Comm’rs of Rds. & Revenues, 164 Ga. App. 1, 294 S.E.2d 708 (1982). Statements on record. — After a hearing of a compensation case an attorney for the claimant stated, ‘‘I think that the defense will also agree that he had ten or more employees, regularly,’’ director replying, ‘‘He has already agreed to that,’’ and the record did not show that any objection or exception was taken to such statements by the employer or the employer’s counsel, who were present at the hearing, the court would presume that such was the agreement of the parties or their counsel, and would accept such statements, appearing in the record, as sufficient to support a finding that the employer was subject to the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) at the time the employee was injured. Hood v. Jackson, 81 Ga. App. 465, 59 S.E.2d 45 (1950). Evidence held sufficient. — Evidence that the employer, owner of a motel, employed the claimant who supplied janitorial services, a night manager, and a secretary whose office was located at the motel, was sufficient to find employment of the requisite number of employees, notwithstanding the employer’s claim that the secretary was paid through a separate corporation. Cox v. Advoni, 222 Ga. App. 413, 474 S.E.2d 290 (1996). Evidence held insufficient. — When there was no evidence in the record to show that there was any periodic employment of as many as 10 (now three) people due to seasonal demands, nor any evi- 456 34-9-2 WORKERS’ COMPENSATION dence that it was the plan, method, or custom of the employer to employ as many as 10 (now three) people, nor that as many as 10 (now three) people were employed after the accident, the evidence was insufficient to justify a holding that the employer had 10 (now three) or more employees ‘‘regularly in service.’’ Martin v. Veal, 66 Ga. App. 702, 18 S.E.2d 776 (1942). Genuine issue bars summary judg- 34-9-2 ment. — The trial court erred in granting summary judgment for a recreation club against the parents of a lifeguard who was electrocuted on club property when a genuine issue of material fact existed as to whether the club employed the requisite number of employees to qualify for workers’ compensation. Molton v. Lizella Recreation Club, Inc., 172 Ga. App. 154, 322 S.E.2d 354 (1984).