No presumption of coverage from fact of relationship.

- The mere fact that the relationship of employer and employee existed raises no presumption that the parties are subject to the workers' compensation law, O.C.G.A. Ch. 9, T. 34. Echo Enters., Inc. v. Aspinwall, 194 Ga. App. 444, 390 S.E.2d 867, cert. denied, 194 Ga. App. 911, 390 S.E.2d 867 (1990).

Receiver, trustee, or personal representative as "employer."

- The word "employer" is applicable to a receiver or trustee of an individual, firm, association, or corporation engaged in any business operated for gain or profit, or to legal representatives of a deceased employer, not only when the injuries to an employee took place before their becoming such representative, but as well to injuries arising during the tenure of their status as such representatives. Minchew v. Huston, 93 Ga. 272, 18 S.E.2d 487 (1942); Minchew v. Huston, 66 Ga. App. 856, 19 S.E.2d 422 (1942).

Executor, administrator, or trustee who operates during official tenure a business employing more than 10 (now three or more) employees for gain or profit to the estate represented by the executor is subject in that representative capacity to the provisions of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), assuming that the deceased would have been so liable and that in other respects the injury is one to which the employee is entitled to compensation under those provisions. Minchew v. Huston, 193 Ga. 272, 18 S.E.2d 487 (1942); Minchew v. Huston, 66 Ga. App. 856, 19 S.E.2d 422 (1942).

Insurer contesting coverage.

- The fact that an insurance carrier mailed to an employer a general form for the purpose of filing a report containing information as to the number of employees would not estop the carrier from contesting the coverage of a subsequently acquired cotton gin business in a policy which was obtained to cover an oil and gas business. Hardware Mut. Cas. Co. v. Collier, 69 Ga. App. 235, 25 S.E.2d 136 (1943).

Employer's agent liable for failure to procure workers' compensation insurance.

- Under Georgia law, an employee is entitled to sue an agent of a former employer for damages resulting from the agent's failure to procure workers' compensation insurance. Bailey v. Chatham, 171 Bankr. 703 (Bankr. N.D. Ga. 1994).

Proof of negligence in failing to procure workers' compensation insurance is not required before employers can be held personally liable for payment of workers' compensation benefits. Sheehan v. Delaney, 238 Ga. App. 662, 521 S.E.2d 585 (1999).

Corporate officer.

- A corporate officer is an employee for determining whether the employer has three or more employees, unless the officer files a written declaration of exemption. Dennison v. G & M Quality Bldrs., Inc., 178 Ga. App. 548, 343 S.E.2d 786 (1986), rev'd on other grounds, 256 Ga. 617, 351 S.E.2d 622 (1987).

Individual's mere status as an employer of a roofer at the time the individual fell off a roof was not determinative of the individual's liability to the roofer for workers' compensation, when the issue of employment remained to be resolved and the individual contested the applicability of the workers' compensation act pursuant to O.C.G.A. § 34-9-2(a). Hopkins v. Martin, 185 Ga. App. 752, 365 S.E.2d 544 (1988).

Cited in Vandergriff v. Shepard, 39 Ga. App. 791, 148 S.E. 596 (1929); Bartlett v. American Mut. Liab. Ins. Co., 47 Ga. App. 504, 170 S.E. 822 (1933); Campbell v. Dixie Gravel Co., 55 Ga. App. 747, 191 S.E. 274 (1937); Hall v. Georgia Milk Producers Confederation, 61 Ga. App. 676, 7 S.E.2d 330 (1940); Hooper v. Harvey, 62 Ga. App. 224, 8 S.E.2d 456 (1940); Liberty Mut. Ins. Co. v. Ragan, 191 Ga. 811, 14 S.E.2d 88 (1941); Flint Elec. Membership Corp. v. Posey, 78 Ga. App. 597, 51 S.E.2d 869 (1949); Fowler v. Holloway, 87 Ga. App. 453, 74 S.E.2d 376 (1953); Burnett v. King, 88 Ga. App. 771, 77 S.E.2d 772 (1953); Churchwell Bros. Constr. Co. v. Archie R. Briggs Constr. Co., 89 Ga. App. 550, 80 S.E.2d 212 (1954); Commissioners of Rds. & Revenues v. Davis, 213 Ga. 792, 102 S.E.2d 180 (1958); Thompson v. Walker, 99 Ga. App. 748, 109 S.E.2d 833 (1959); Newsome v. Loper, 101 Ga. App. 90, 112 S.E.2d 781 (1960); Southern Ry. v. Overnite Transp. Co., 223 Ga. 825, 158 S.E.2d 387 (1967); American Mut. Liab. Ins. Co. v. Rozier, 117 Ga. App. 178, 160 S.E.2d 236 (1968); McCluskey v. AMOCO, 224 Ga. 253, 161 S.E.2d 271 (1968); Ledford v. J.M. Muse Corp., 119 Ga. App. 244, 166 S.E.2d 623 (1969); Harper v. Smith, 128 Ga. App. 707, 197 S.E.2d 759 (1973); Aetna Cas. & Sur. Co. v. Barber, 128 Ga. App. 894, 198 S.E.2d 352 (1973); Security Ins. Group v. Plank, 133 Ga. App. 815, 212 S.E.2d 471 (1975); St. Paul Fire & Marine Ins. Co. v. Walters, 141 Ga. App. 579, 234 S.E.2d 157 (1977); Haygood v. Home Transp. Co., 149 Ga. App. 229, 253 S.E.2d 805 (1979); Haygood v. Home Transp. Co., 244 Ga. 165, 259 S.E.2d 429 (1979); Hensel Phelps Constr. Co. v. Johnson, 161 Ga. App. 631, 295 S.E.2d 843 (1982); Warren v. Mansfield Enters., Inc., 163 Ga. App. 785, 295 S.E.2d 864 (1982); Scogin v. Georgia Power Co., 165 Ga. App. 2, 299 S.E.2d 84 (1983); Manning v. Georgia Power Co., 252 Ga. 404, 314 S.E.2d 432 (1984); Howell v. Parker, 171 Ga. App. 101, 318 S.E.2d 811 (1984); G & M Quality Bldrs., Inc. v. Dennison, 256 Ga. 617, 351 S.E.2d 622 (1987); Dennison v. G & M Quality Bldrs., Inc., 182 Ga. App. 574, 356 S.E.2d 678 (1987); Southern Guar. Ins. Co. v. Union Timber Co., 708 F. Supp. 1314 (M.D. Ga. 1989); Gray Bldg. Sys. v. Trine, 260 Ga. 252, 391 S.E.2d 764 (1990); Southern Guar. Ins. Co. v. Union Timber Co., 741 F. Supp. 223 (M.D. Ga. 1990); Hester v. Saturday, 138 Bankr. 132 (Bankr. S.D. Ga. 1991); Walters v. Betts, 174 Bankr. 636 (Bankr. N.D. Ga. 1994); Riley v. Taylor Orchards, 226 Ga. App. 394, 486 S.E.2d 617 (1997).

"Employee" construed.

- The definition of "employee" in former Code 1933, §§ 114-101 and 114-102 (see now O.C.G.A. § 34-9-1) must be construed in connection with former Code 1933, §§ 114-107 and 114-108 (see now O.C.G.A. § 34-9-2). Continental Cas. Co. v. Haynie, 182 Ga. 608, 186 S.E. 683 (1936).

The definition of "employee" in former Code 1933, §§ 114-101 and 114-102 (see now O.C.G.A. § 34-9-1) and the provision in former Code 1933, §§ 114-107 and 114-108 (see now O.C.G.A. § 34-9-2) that workers' compensation law shall not apply to employees whose employment was not in the usual course of the trade, business, occupation, or profession of the employer, or not incidental thereto, must be construed together. 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).

Exclusion of employees.

- Any person whose employment is not in the usual course of a trade, business, profession, or occupation of that person's employer, or is not incidental thereto, is excluded from the right to compensation under the express provisions of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Continental Cas. Co. v. Haynie, 51 Ga. App. 650, 181 S.E. 126 (1935), aff'd, 182 Ga. 608, 186 S.E. 683 (1936).

When employment incidental to usual course of trade or business.

- Employment of the employee is incidental to the usual course of the trade or business of the employer when it is being performed upon premises and buildings essential to the successful carrying on of such trade or business in an efficient and modern manner, the test being whether an employment is in furtherance of the business of the employer, and not in the manner or method adopted in the performance, and whether it is in furtherance of the employer's gain or profit, and is related or incidental to such employment. 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).

Test of employment.

- The test of employment under this section was whether an employment was in furtherance of the business of the employer, and not in the manner or method adopted in the performance of such employment; the character of the work being done, not the contract of employment, was determinative of the question. Lee v. Claxton, 70 Ga. App. 226, 28 S.E.2d 87 (1943).

Carpenter engaged in remodeling of offices.

- A carpenter who is engaged with others to aid in the alteration, repair, and enlargement of the offices of a corporation doing a dairy business, which offices are essential to the successful carrying on of such trade or business in an efficient and modern manner, and who will not be retained after the completion of such carpenter work, is an "employee" in the service of the dairy corporation, whose employment is "incidental" to the usual course of the trade or business of the employer. Continental Cas. Co. v. Haynie, 51 Ga. App. 650, 181 S.E. 126 (1935), aff'd, 182 Ga. 608, 186 S.E. 683 (1936).

Caretaker on estate used for business entertainment.

- The evidence was sufficient to authorize a finding that at the time of death the claimant's spouse who worked as a caretaker on an estate belonging to the president and majority stockholder of the defendant drug company, which estate was used for business entertainment purposes, was an employee of the drug company. 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).

Meaning of "farm laborers."

- The term "farm laborers" means laborers employed in or about the business of farming, and the word "farming," in its ordinary sense, signifies the cultivation of land for the production of agricultural crops, with incidental enterprises. Pridgen v. Murphy, 44 Ga. App. 147, 160 S.E. 701 (1931); Utica Mut. Ins. Co. v. Winters, 77 Ga. App. 550, 48 S.E.2d 918 (1948).

The term "farm laborers" must be given its ordinary signification, and it signifies the cultivation of agricultural crops. Oft v. Sims, 142 Ga. App. 9, 235 S.E.2d 41 (1977).

The focus for determining whether the "farm laborer" exemption applies is the status of the employee, not the total activities of the employer. Lumber City Egg Marketers, Inc. v. Piercy, 217 Ga. App. 584, 458 S.E.2d 364 (1995).

Manufacturers of crude gum.

- The original manufacturers or producers of crude gum (oleoresin) are "farmers" for all intents and purposes, and the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) is not applicable to them and their employees. Hamilton Turpentine Co. v. Johnson, 93 Ga. App. 544, 92 S.E.2d 235 (1956), distinguishing Pridgen v. Murphy, 44 Ga. App. 147, 160 S.E. 701 (1931); Moody v. Tillman, 45 Ga. App. 84, 163 S.E. 521 (1932); Meadows v. Dixon, 61 Ga. App. 607, 7 S.E.2d 329 (1940).

Dairy farm employee.

- An individual employed to feed and milk cows on a dairy operation is a "farm laborer." Oft v. Sims, 142 Ga. App. 9, 235 S.E.2d 41 (1977).

Retention of status.

- If an employer owns a farm and a garage, and sends one of the garage employees on a specific task of cleaning out a well on the employer's farm, such garage hand and employee, who does not till the soil, does not become a "farm laborer," but retains that person's general character as a garage employee. Utica Mut. Ins. Co. v. Winters, 77 Ga. App. 550, 48 S.E.2d 918 (1948).

Ditch digger on farm.

- An employee of a landowner who was engaged in digging a ditch to prevent the overflow of a creek so as to render land more suitable for cultivation was a "farm laborer", and for an injury caused to the employee's hand while engaged in moving a stump in the course of employment the employee was not entitled to compensation under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Culpepper v. White, 52 Ga. App. 740, 184 S.E. 349 (1936).

Chicken processor.

- Employee of an independent contractor retained by a processor only to catch, box, and transport chickens in the processor's trucks was not a "farm laborer". J & C Poultry v. Reyes-Guzman, 227 Ga. App. 731, 489 S.E.2d 853 (1997).

Alligator farm.

- Definition in Employment Security Law, O.C.G.A. § 34-8-1, of "farm laborer" was applied to that same term under the Workers' Compensation Act in order to reach the determination that when an employee for an alligator farm cleaned out the pens, the employee was caring for wildlife and thus performing "agricultural labor" pursuant to O.C.G.A. § 34-8-35(m)(2)(A), but as the employer was not a "farm" because alligators were "wildlife" and "game animals" under O.C.G.A. § 27-1-2(34) and not "livestock or fur-bearing animals" pursuant to O.C.G.A. § 34-8-35(m)(3)(A), the employer did not fall within the exemption provided by O.C.G.A. § 34-9-2(a) with respect to the employee's claim for workers' compensation benefits; the trial court erred in holding that the employer was exempted from the Workers' Compensation Act's coverage. Gill v. Prehistoric Ponds, Inc., 280 Ga. App. 629, 634 S.E.2d 769 (2006).

Because an employer who was in the business of breeding, rearing, and slaughtering alligators to sell the meat, hides, and head was not a farm, as alligators were "wildlife", not livestock or fur-bearing animals, the employer did not fall within the exemption from coverage under the Workers' Compensation Act provided by O.C.G.A. § 34-9-2(a). Cook v. Prehistoric Ponds, Inc., 282 Ga. App. 904, 640 S.E.2d 383 (2006).

Employee of meat packer working on farm land.

- If an employee was on the payroll of the employee's employer in connection with its meat packing, the fact that the employee performed this essential work for the employer on land that had once been a diary farm and was even at the time of the injury producing grain and hay as the result of other labor of the employee, rendered the employee no less an employee of the employer in connection with the employer's meat packing business than the employee would have been had the employee only performed the work essential to the meat packing business at the plant of the employer. Free v. McEver, 79 Ga. App. 831, 54 S.E.2d 372 (1949).

Truck farmer, jobber, and broker.

- While the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) exempts farming from its operation, a truck farmer who is also a jobber and broker, buying, selling, and hauling farm products and other articles of merchandise and employing trucks and employees to operate and care for them, is not, as to this portion of the business, exempt from the provisions of that law. Ballard v. Butler, 45 Ga. App. 837, 166 S.E. 220 (1932).

Truck driver delivering farmer's crops.

- When employer was engaged only in the business of farming, raising and marketing its own crops, and employee was hired to drive a truck and deliver employer's crops to its customers, employee, as a truck driver who was engaged in the incidental work of delivering employer's crops, was a "farm laborer" who was excluded from workers' compensation coverage pursuant to O.C.G.A. § 34-9-2. 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 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).

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, 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).

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 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; 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 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, 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 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 capacity 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 evidence 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 judgment.

- 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).

Benefits payable by bankrupt self-insured employer.

- The State board of workers' compensation may permit payment of benefits to injured workers when a self-insured employer files for relief under Chapter 7 or 11 of the Bankruptcy Code, provided those benefits are not collected directly from the self-insured employer's bankrupt estate. 1989 Op. Att'y Gen. 89-50.

Newspaper dealers.

- Newspaper dealers are employers within the meaning of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), and would be subject to the requirements thereof, unless exempt therefrom because of having less than three employees, as provided therein. 1962 Op. Att'y Gen. p. 613.

Superior court judges.

- Since superior court judges are elected officials, they are not covered by the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). 1980 Op. Att'y Gen. No. 80-71.

Am. Jur. 2d.

- 82 Am. Jur. 2d, Workers' Compensation, § 117 et seq.

C.J.S.

- 99 C.J.S., Workers' Compensation, §§ 136 et seq., 238 et seq.

ALR.

- Extraterritorial operation of Workmen's Compensation Statutes; conflict of laws, 3 A.L.R. 1351; 18 A.L.R. 292; 28 A.L.R. 1345; 35 A.L.R. 1414; 45 A.L.R. 1234; 59 A.L.R. 735; 82 A.L.R. 709; 90 A.L.R. 119.

Workmen's compensation: application to employees engaged in farming, 7 A.L.R. 1296; 13 A.L.R. 955; 35 A.L.R. 208; 43 A.L.R. 954; 107 A.L.R. 977; 140 A.L.R. 399.

Workmen's compensation: compensation for death of or injury to peace officer employed in private plant, 8 A.L.R. 190.

Applicability of state Anti-trust Act to interstate transaction, 24 A.L.R. 787.

Workmen's Compensation Act: applicability of state compensation act to injury within admiralty jurisdiction, 25 A.L.R. 1029; 31 A.L.R. 518; 56 A.L.R. 352.

Workmen's compensation: liability of general or special employer for compensation to injured employee, 34 A.L.R. 768; 58 A.L.R. 1467; 152 A.L.R. 816.

Teamster as independent contractor under workmen's compensation acts, 42 A.L.R. 607; 43 A.L.R. 1312; 120 A.L.R. 1031.

Convict or prisoner as within Workmen's Compensation Act, 49 A.L.R. 1381.

Ownership of leased or rented property as constituting business, trade, occupation, etc., within workmen's compensation acts, 50 A.L.R. 1776.

Workmen's compensation: what is casual employment, 60 A.L.R. 1195; 107 A.L.R. 934.

One transporting children to or from school as independent contractor, 66 A.L.R. 724.

Applicability of state workmen's compensation acts to intrastate employee where railroad company is engaged in both interstate and intrastate commerce, 80 A.L.R. 1418.

Workmen's compensation: continuity and duration of employment required by provision of act making its applicability depend on number of persons employed, 81 A.L.R. 1232.

Construction, application, and effect of provisions of workmen's compensation acts that make one's status as employee dependent upon amount of earnings, 87 A.L.R. 958.

Needy persons put to work by municipality or other public body as means of extending aid to them as within protection of Workmen's Compensation Act, 96 A.L.R. 1154; 127 A.L.R. 1483.

Workmen's compensation: employer taking out insurance covering employees not otherwise within act as an election to accept the act, 103 A.L.R. 1523.

Who are "workmen" or "operatives" within workmen's compensation act, 129 A.L.R. 990.

State Workmen's Compensation Act as applicable to motor carriers and their employees engaged in interstate commerce, 133 A.L.R. 956; 148 A.L.R. 873.

Workmen's compensation: what amounts to acceptance or election to come within act by employer as to whom act is not mandatory, 136 A.L.R. 899.

Insurance soliciting agent as employee or independent contractor within Workmen's Compensation Acts, 138 A.L.R. 1122.

Constitutionality of provisions of Workmen's Compensation Acts which are limited to residents of state, 147 A.L.R. 925.

Application for, or award, denial, or acceptance of, compensation under state Workmen's Compensation Act as precluding action under Federal Employers' Liability Act by one engaged in interstate commerce within that act, 6 A.L.R.2d 581.

What constitutes total or permanent disability within the coverage of disability insurance coverage issued to farmer or agricultural worker, 26 A.L.R.3d 714.

Liability of owner or operator of premises for injury to meter reader or similar employee of public service corporation coming to premises in course of duties, 28 A.L.R.3d 1344.

Homeowner's or personal liability insurance as providing coverage for liability under workmen's compensation laws, 41 A.L.R.3d 1306.

Unemployment compensation: trucker as employee or independent contractor, 2 A.L.R.4th 1219.

Workers' compensation: injuries incurred during labor activity, 61 A.L.R.4th 196.

What constitutes "agricultural" or "farm" labor within social-security or unemployment-compensation acts, 60 A.L.R.5th 459.

Application of workers' compensation laws to illegal aliens, 121 A.L.R.5th 523.

Validity, construction, and application of statutory provisions exempting or otherwise restricting farm and agricultural workers from worker's compensation coverage, 40 A.L.R.6th 99.