FIRST DIVISION BARNES, P. J., GOBEIL and PIPKIN, 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. https://www.gaappeals.us/rules
June 28, 2024
In the Court of Appeals of Georgia A24A0103. GEORGIA INSURERS INSOLVENCY POOL v. CARPET CYCLE, LLC et al. A24A0211. CARPET CYCLE, LLC et al. v. GEORGIA INSURERS INSOLVENCY POOL. A24A0287. GEORGIA INSURERS INSOLVENCY POOL v. ZEP, INC.
GOBEIL, Judge.
At issue in these three appeals is the interpretation and interplay of the Georgia
Insurers Insolvency Pool Act, OCGA § 33-36-1 et seq. (the “Pool Act”) and
Georgia’s Workers’ Compensation Act, OCGA § 34-9-1 et seq. (the “WCA”).1
Specifically, in the context of a compensable workers’ compensation claim, these
1 Although Case No. A24A0287 is otherwise unrelated to A24A0103 and A24A0211, we heard these cases together. All three involve the same core issues regarding the Pool Act. appeals require us to address the Georgia Insurers Insolvency Pool’s (the “Pool”)
right to reimbursement from the solvent insurer of a business utilizing the services of
a staffing company when the staffing company’s insurer has become insolvent.
Summary of the Cases Presented
Briefly, as relevant to Case No. A24A0287, Jeffrey Ward sustained a
compensable injury in July 2017. On the date of his injury, Ward was employed by
North Georgia Staffing, Inc. (“NGS”), a temporary staffing company, and NGS had
assigned him to work at a warehouse owned and operated by Zep, Inc. (“Zep”).
NGS’s workers’ compensation insurer, Guarantee Insurance Company
(“Guarantee”), accepted the claim as compensable and commenced payment of
medical and indemnity benefits. After Guarantee was declared insolvent, the Pool
assumed responsibility for Ward’s claim as required by OCGA § 33-36-14 of the Pool
Act. The Pool then sought reimbursement for all amounts it had paid toward Ward’s
claim from Zep’s still-solvent insurer, New Hampshire Insurance Company
(“NHIC”).
The matter proceeded to a hearing before an administrative law judge (“ALJ”)
with the State Board of Workers’ Compensation (the “Board”). The ALJ ruled that
2 the Pool was not entitled to reimbursement from NHIC. The Board’s Appellate
Division affirmed this ruling, and the Superior Court of Bartow County likewise
affirmed the conclusion that the Pool was not entitled to reimbursement from NHIC.
On appeal, the Pool argues that the superior court erred by (1) applying an “any
evidence” standard to the Appellate Division’s conclusions of law; (2) deferring to
the Appellate Division’s “flawed” interpretation of the Pool Act; (3) failing to
consider Zep’s liability as a statutory employer (OCGA § 34-9-11 (c)); (4) interpreting
the Pool Act in a way that would permit businesses to enter into contracts that
contravene the Pool Act’s requirements; and (5) failing to apply the correct test to
determine whether Ward was a borrowed servant of Zep at the time of his injury;
As relevant to Case Nos. A24A0103 and A24A0211, Jay Hall sustained a work-
related injury in 2010 while performing work for Carpet Cycle, LLC (“Carpet
Cycle”). At the time, he was employed by Aliyah Personnel, Inc. (“Aliyah”), a
temporary staffing company that provided workers for companies including Carpet
Cycle. Aliyah’s insurer, Lumbermen’s Underwriting Alliance (“Lumbermen’s”),
paid medical and indemnity benefits on Hall’s workers’ compensation claim. In 2016,
Lumbermen’s underwent liquidation, and the Pool took over administration of Hall’s
3 claim. The Pool then sought reimbursement from Carpet Cycle and its still-solvent
insurer, Rochdale Insurance Company (“Rochdale”).
An ALJ with the Board denied the Pool’s request for reimbursement, and the
Appellate Division and the Superior Court of Gordon County affirmed this denial. In
Case No. A24A0103, the Pool appeals, raising the same arguments it raised in Case
No. A24A0287. In addition, the Pool argues that the superior court erred by finding
that the date of injury, rather than the date of insolvency, controls the analysis of
Hall’s employment status for purposes of the Pool Act.
In Case No. A24A0211, Carpet Cycle/Rochdale have filed a cross-appeal from
the superior court’s order, arguing that the Pool Act, as applied, is unconstitutional,
and the superior court should have considered whether the Pool Act violates Carpet
Cycle/Rochdale’s constitutional rights to due process and access to the courts.
As explained more fully below, we affirm in Case No. A24A0287. In Case No.,
A24A0103, we affirm in part and reverse in part, and we agree with the Pool that the
Board applied the wrong test in determining whether Hall was Carpet Cycle’s
borrowed servant at the time of his work injury. However, as relevant to Carpet
Cycle/Rochdale’s cross-appeal in Case No. A24A0211, we remand the case to the
4 superior court for a determination of the constitutional issues raised but not ruled
upon.
Standard of Review
In reviewing a workers’ compensation award, this Court must construe the evidence in the light most favorable to the party prevailing before the appellate division. In addition, the findings of the Board, when supported by any evidence, are conclusive and binding, and neither the superior court nor this Court may substitute itself as a factfinding body in lieu of the State Board. But erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to a de novo standard of review.
Cho v. Mountain Sweet Water, Inc., 322 Ga. App. 400, 400 (745 SE2d 663) (2013)
(citation and punctuation omitted). “On appeal to this Court, our duty is not to
review whether the record supports the superior court’s decision but whether the
record supports the initial decision of the [Board].” Heritage Healthcare of Toccoa v.
Ayers, 323 Ga. App. 172, 174 (746 SE2d 744) (2013) (citation and punctuation
omitted).
The Georgia Insurers Insolvency Pool and the Pool Act
5 Before delving into the facts of these cases, we begin with some context: an
overview of the Pool and the Pool Act. As we recently described in Ga. Insurers
Insolvency Pool v. DuBose,
The . . . Pool is a non-profit legal entity created by the Georgia General Assembly and governed by the Pool Act . . . . The Pool provides a limited safety net for insurers that experience liquidation. . . . When an insurance company is placed into liquidation, all existing claims of the insolvent carrier are transferred to the Pool by the liquidator and the Pool undertakes responsibility for the handling and administration of those claims in keeping with the Pool Act. . . . The Pool is then responsible for the investigation, adjustment, compromise, settlement, and payment of covered claims; for the investigation, handling, and denial of noncovered claims; and for the management and investment of funds administered by the [P]ool.
349 Ga. App. 238, 241 (1) (825 SE2d 606) (2019) (citations and punctuation omitted).
Further, the Pool is a “guarantor of last resort, providing benefits only when there is
no other insurance available.” Id. at 246 (1) (b).
Significantly, the Pool Act includes an exhaustion provision requiring a claimant
to exhaust certain sources of insurance coverage before seeking payment of his or her
claim from the Pool. OCGA § 33-36-14 (a). This subsection provides in relevant part:
6 [A]ny person having a claim against a policy or an insured under a policy issued by an insolvent insurer, which claim is a covered claim and is also a claim within the coverage of any policy issued by a solvent insurer, shall be required to exhaust first his or her rights under such policy issued by the solvent insurer. The policy of the solvent insurer shall be treated as primary coverage and the policy of the insolvent insurer shall be treated as secondary coverage and his or her rights to recover such claim under this chapter shall be reduced by any amounts received from the solvent insurers.
OCGA § 33-36-14 (a). The Pool Act also authorizes the Pool to seek reimbursement
from solvent insurers to offset amounts the Pool paid to a claimant. OCGA § 33-36-14
(b).
In accordance with “the [ ] Pool Act, when an insurance company is placed into
liquidation, the [ ] Pool becomes responsible for the handling and administration of the
insolvent insurer’s claims, and the [ ] Pool is deemed the insurer to the extent that
such claims constitute ‘covered claims’ within the meaning of the [ ] Pool Act.”
Palmer v. Ga. Insurers Insolvency Pool, 361 Ga. App. 803, 804 (865 SE2d 623) (2021).
Claims under a workers’ compensation insurance policy “may fall within the meaning
of a ‘covered claim’ as defined by the [ ] Pool Act.” Id. The WCA, in turn, “is
intended to provide a complete and exclusive system and procedure for the resolution
7 of disputes between employers and employees who are subject to this chapter
concerning accidents and injuries arising out of and in the course of employment[.]”
OCGA § 34-9-23. Pursuant to the Pool Act, the WCA is applicable to the Pool.
Palmer, 361 Ga. App. at 807.
Factual and Procedural Background
a. Case No. A24A0287
As relevant to Case No. A24A0287 and viewed in the light most favorable to
Zep/NHIC, as the prevailing parties before the Board, the record shows that in July
2017, Zep and NGS entered into a contract (the “Personnel Agreement”) under
which NGS agreed to provide temporary personnel services for assignment at Zep’s
warehouse. The contract provided that NGS would: recruit, hire, and assign all
associates for Zep; be solely responsible for paying all associates; and provide workers’
compensation insurance for NGS associates.
NGS hired Jeffrey Ward after he attended a job fair at Zep’s warehouse. He
attended a “new hire” orientation conducted by NGS, and was then placed to work
at Zep as a reach truck/forklift operator. An NGS manager, Joel Orellana, was on-site
8 at the Zep premises every day, and Orellana was each NGS employee’s first point of
contact as he or she arrived at the Zep facility each day.
On July 26, 2017, Ward sustained a compensable, work-related injury, which
he reported to Orellana. Orellana completed an NGS “Supervisor’s Report of
Accident” form and took Ward to the hospital. At the time of Ward’s injury, NGS
had workers’ compensation insurance with Guarantee, and Zep had workers’
compensation insurance with NHIC. After Ward’s injury, Guarantee filed a Form
WC-1, Employer’s First Report of Injury, in which it accepted the claim as
compensable and commenced payment of temporary total disability benefits beginning
July 31, 2017. At no time has Zep or NHIC paid income or medical benefits to Ward
as it pertains to the July 2017 injury.
Guarantee became insolvent and went into liquidation in November 2017, and
the Pool took over administration and payment of Ward’s workers’ compensation
claim. In July 2018, Ward filed a hearing request with the Board, seeking to add Zep
9 to the claim as a statutory employer.2 Zep/NHIC controverted the claim in full on
September 5, 2018.
On July 8, 2019, the Pool sought reimbursement from NHIC for amounts paid
on Ward’s claim on the grounds that the policy NHIC issued to Zep “would be
primary because [Zep] would be considered a co-employer or statutory employer of
Jeffrey Ward.” Thereafter, the Pool requested a hearing before the Board to
determine Zep’s status as Ward’s employer at the time of the injury. If Zep were
determined to be Ward’s employer for WCA purposes, then it reasons that Zep and
NHIC would be responsible for Ward’s claim and the Pool could recover the amounts
it had paid on the claim pursuant to OCGA § 33-36-14 (a).
Following a hearing, the ALJ denied the Pool’s request for reimbursement. As
an initial matter, the ALJ found that Ward was not Zep’s borrowed servant, lent out
from NGS, at the time of the injury, because both companies exercised some control
2 “[T]he statutory employer doctrine permits liability for workers’ compensation benefits to attach vicariously against someone other than an injured employee’s employer. In return, the vicariously liable party is immune from tort liability for the injury suffered.” Manning v. Ga. Power Co., 252 Ga. 404, 405 (314 SE2d 432) (1984). See also OCGA § 34-9-8 (a) (“A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.”). 10 over his work. The ALJ then found that NGS and Zep were joint employers for
potential workers’ compensation liability. According to the ALJ: NGS and Zep shared
control of Ward’s work; NGS and Zep had an arrangement whereby NGS would act
as a “temporary help contracting firm” as defined by OCGA § 34-8-463; and, a
temporary help contracting firm is “deemed to be a statutory employer for purposes
of this Chapter” pursuant to OCGA § 34-9-11 (c). Regarding liability arising under
joint employment, the ALJ cited OCGA § 34-9-224:
3 OCGA § 34-8-46 provides:
As used in this chapter, the term “temporary help contracting firm” means any person who is in the business of employing individuals and, for compensation from a third party, providing those individuals to perform work for the third party under the general or direct supervision of the third party. Employment with a temporary help contracting firm is characterized by a series of limited-term assignments of an employee to a third party, based on a contract between the temporary help contracting firm and the third party. A separate employment contract exists between the temporary help contracting firm and each individual it hires as an employee. Completion of an assignment for a third party by an employee employed by a temporary help contracting firm does not, in itself, terminate the employment contract between the temporary help contracting firm and the employee. 11 Whenever any employee whose injury or death is compensable under this chapter shall at the time of the injury be in the joint service of two or more employers subject to this chapter, such employers shall contribute to the payment of such compensation in proportion to their wage liability to such employee; provided, however, that nothing in this Code section shall prevent any reasonable arrangement between such employers for a different distribution as between themselves of the ultimate burden of compensation.
The ALJ explained that NGS paid all of Ward’s wages, and NGS and Zep arranged
that NGS would be liable for workers’ compensation benefits. Therefore, the ALJ
concluded, NGS was responsible for all of Ward’s workers’ compensation benefits.
And, because Zep had no liability for such benefits, Ward did not have a “covered
claim” that was “within the coverage” of Zep’s policy with NHIC, and the Pool
could not recover from Zep or NHIC under OCGA § 33-36-14.
The Pool appealed to the Board’s Appellate Division, which adopted in part
and reversed in part the ALJ’s award. More specifically, the Appellate Division agreed
with the ALJ’s conclusion that Zep had no workers’ compensation liability for Ward’s
injury, and agreed with the ALJ’s findings that (1) NGS was a temporary help
contracting firm as defined by OCGA § 34-8-46, and (2) NGS was a statutory
12 employer pursuant to OCGA § 34-9-11 (c). In addition, the Appellate Division
affirmed the ALJ’s finding that Ward was not a borrowed servant, citing evidence that
NGS had the sole right to terminate Ward’s employment.
With regard to the ALJ’s finding that NGS and Zep were joint employers,
however, the Appellate Division reversed. In doing so, the Appellate Division
explained that unlike professional employer organizations or employee leasing
companies — which under OCGA § 34-7-6 are considered co-employers —
temporary help contracting firms are in the business of employing individuals and, for
compensation from a third party, providing those individuals to perform work for the
third party under the general or direct supervision of the third party.4 The Appellate
Division ruled that the fact that Zep exercised some control over Ward’s work did not
necessitate a finding of co-employment or joint employment, and Zep was allowed to
exercise such control as a third party using the services of a temporary help
contracting firm. The fact that NGS is deemed a statutory employer by virtue of
OCGA § 34-9-11 (c) did not demand a finding of joint employment between Zep and
NGS.
4 The Pool does not challenge this ruling on appeal. 13 Because Zep was merely a third-party business using the services of a temporary
help contracting firm, the Appellate Division concluded that there was never any
employment relationship between Ward and Zep. The Appellate Division ruled that
on the date of injury, the only liable employer and insurer were NGS and Guarantee,
and Ward’s injury was not “a covered claim under [NHIC’s] policy[.]” The
Appellate Division highlighted that nothing about Ward’s employment relationship
with Zep had changed after the date of injury. Rather, “the only thing that changed
. . . was that Guarantee [ ] became insolvent[.]” Thus, the Appellate Division denied
the Pool’s request for reimbursement from Zep.
The Pool appealed to the Superior Court of Bartow County, which affirmed the
Appellate Division’s ruling in its entirety. The Pool then filed an application for
discretionary review, which we granted, and the appeal in Case No. A24A0287
followed.
b. Case Nos. A24A0103 and A24A0211
As relevant to Case Nos. A24A0103 and A240211, the facts, viewed in the light
most favorable to the Appellate Division’s award, show the following. In 2010, Hall
was contacted by his brother-in-law about performing some work at a carpet mill.
14 Specifically, the work entailed operating a carpet shearer and then dismantling the
machinery to be shipped to a different location. Sean Ragiel, Carpet Cycle’s principal,
owned the equipment and instructed Hall on what to do. Initially, Ragiel paid Hall $10
per hour in cash. He then instructed Hall (and the other workers Hall had recruited
for the job) to go to Aliyah’s office to fill out paperwork so they would be covered by
Aliyah’s workers’ compensation insurance. After he completed the paperwork, Hall
received his paycheck from Aliyah. Hall did not receive instructions, training, or have
other communications with Aliyah aside from turning in time cards and getting his
paycheck.
Aliyah’s representative testified at the hearing before the ALJ, and although she
could not remember Hall or Carpet Cycle, she testified as to her knowledge of
Aliyah’s general business practices.5 As relevant here, Aliyah provided staffing
services, specifically industrial placement of employees, to client companies like
Carpet Cycle. After Aliyah received an application from the client company, it would
contact its workers’ compensation insurer to ascertain that the company would be
5 Aliyah retained paper documents for seven years, after which time a shredding company would destroy all records except for client applications. As a result, at the time of the proceedings below, Aliyah did not have access to its records pertaining to Carpet Cycle or Hall’s workers’ compensation claim. 15 covered. The client companies determined how much workers were paid and what
their hours were. Aliyah paid the workers, and charged the client companies a fee in
exchange for handling the payroll and providing workers’ compensation insurance
coverage; indeed, Aliyah, through Lumbermen’s, provided workers’ compensation
insurance coverage for Hall in this case.
On December 21, 2010, Hall was injured while breaking down equipment at the
job site. After his injury, Aliyah sent Hall to attempt a light-duty job performing
office/filing work at Aliyah. After Hall hired an attorney, Aliyah/Lumbermen’s
ultimately paid medical and income benefits on Hall’s claim.
Lumbermen’s became insolvent and went into liquidation in May 2016, and the
Pool took over administration and payment of Hall’s workers’ compensation claim.
In May 2019, the Pool requested reimbursement from Carpet Cycle for the amounts
it paid on Hall’s claim, including attorney fees incurred in defending the claim.6
Carpet Cycle/Rochdale filed a Form WC-14 requesting a hearing on the
constitutionality of the Pool Act, and raised the issue before the ALJ at the hearing.
6 In October 2020, Hall’s benefits were suspended because the entire permanent partial disability benefit had been paid. Hall later sought a ruling designating his injuries as catastrophic (see OCGA § 34-9-200.1 (g) (6)), but the ALJ denied this request, and the Appellate Division affirmed. 16 In its request for a hearing, the Pool also sought a determination as to the identity of
Hall’s employer at the time of the injury, such that the Pool could recover from
Carpet Cycle the amounts it had paid on the claim pursuant to OCGA § 33-36-14 (a).
Following the hearing, the ALJ denied the Pool’s request for reimbursement
from Carpet Cycle/Rochdale. As an initial matter, the ALJ found that Hall was not
Carpet Cycle’s borrowed servant, lent out from Aliyah, at the time of the injury,
because both companies exercised some control over his work. While Carpet Cycle
exercised the majority of the day-to-day supervision about the details of Hall’s work,
the ALJ found that Aliyah retained and exercised some control in that Hall had
ongoing reporting responsibilities to Aliyah, Aliyah retained the ability to terminate
him, and Aliyah paid him. The ALJ also stated that: the testimony of Aliyah’s agent
showed that Aliyah had some continued involvement and interaction with its assigned
employees, which constituted some ongoing control of those employees; and that Hall
returned to work at the Aliyah office shortly after his injury, which showed general
control over him by Aliyah.
Further, the ALJ found that Carpet Cycle and Aliyah were joint employers for
potential workers’ compensation liability. Because Aliyah paid all of Hall’s wages, and
17 Aliyah and Carpet Cycle arranged for Aliyah to provide workers’ compensation
coverage, the ALJ concluded that Aliyah was responsible for all of Hall’s workers’
compensation benefits. And, because Carpet Cycle had no liability for such benefits,
Hall did not have any “covered claim” that was “within the coverage” of Carpet
Cycle’s policy with Rochdale. Accordingly, the Pool was not entitled to
reimbursement from Carpet Cycle under OCGA § 33-36-14.
The Pool appealed to the Appellate Division, and Carpet Cycle/Rochdale filed
a cross-appeal on the issue of the constitutionality of the Pool Act as applied to the
facts surrounding Hall’s claim. The Appellate Division adopted in part and reversed
in part the ALJ’s award. In relevant part, the Appellate Division agreed with the ALJ’s
finding that Hall was not a borrowed servant of Carpet Cycle, because Aliyah did not
relinquish complete control of him to Carpet Cycle. It also agreed with the ALJ’s
conclusion that Carpet Cycle had no workers’ compensation liability for Hall’s injury.
However, the Appellate Division reversed the ALJ’s finding that Aliyah and
Carpet Cycle were joint employers. In addition, the Appellate Division stated that just
because Carpet Cycle exercised some control over Hall’s work did not necessitate a
finding of co-employment or joint employment; and, in fact, Carpet Cycle was allowed
18 to exercise such control pursuant to OCGA § 34-8-46 — as a third party using the
services of a temporary help contracting firm. The Appellate Division also ruled that
joint employment did not exist between Aliyah and Carpet Cycle simply because
Aliyah was a statutory employer pursuant to OCGA § 34-9-11 (c).
The Appellate Division concluded that there was never any employment
relationship between Hall and Carpet Cycle — Carpet Cycle was merely a third-party
business using the services of a temporary help contracting firm. In support, the
Appellate Division cited evidence that: Hall applied for a job with Aliyah, was paid by
Aliyah, considered himself to be an employee of Aliyah, visited Aliyah’s office to turn
in time sheets and pick up paychecks, and returned to work for Aliyah after his
accident; and, that Aliyah provided workers’ compensation insurance coverage for
and could terminate its employees. The Appellate Division ruled that on the date of
injury, the only liable employer and insurer were Aliyah and Lumbermen’s, and
Carpet Cycle and Rochdale had no liability whatsoever. Thus, the Appellate Division
denied the Pool’s request for reimbursement from Carpet Cycle.
In its award, the Appellate Division declined to address the constitutionality of
the Pool Act, but highlighted the potential due process implications that could arise
19 if the Pool Act permitted the Pool to seek reimbursement years after the date of injury.
Specifically, the Appellate Division noted that “on the date of injury, Carpet Cycle
and Rochdale had no exposure in this matter and did not contemplate setting reserves,
contacting witnesses, preserving evidence, determining a statute of limitation date for
a non-covered claim, etc.”
The Pool appealed to the Superior Court of Gordon County, which affirmed the
Appellate Division’s ruling. At the hearing, counsel for Carpet Cycle/Rochdale
reiterated its challenge to the constitutionality of the Pool Act, arguing that the Pool’s
proposed application of the Pool Act would violate due process. The superior court
affirmed the decision of the Appellate Division, explaining that it agreed with the
Appellate Division’s determination that the date of Hall’s injury, and not the date of
Lumbermen’s liquidation, controlled the analysis of Hall’s employment. And, because
Carpet Cycle was not an employer under workers’ compensation law on the date of
the injury, Rochdale did not qualify as a solvent insurer under the Pool Act, and the
Pool could not recover from Carpet Cycle. Thus, the superior court found it
unnecessary to rule on the constitutional challenge to the Pool Act.
20 The Pool then filed an application for discretionary review, which we granted,
and the Pool appealed in Case No. A24A0103. In Case No. A24A0211, Carpet
Cycle/Rochdale filed a cross-appeal pertaining to the constitutionality of the Pool Act.
Analysis
1. The Pool’s Alleged Errors Concerning the Standard of Review in Case Nos.
A24A0287 and A24A0103
In each of these two cases, the Pool first argues that the superior court erred by
applying a deferential standard of review to the Appellate Division’s conclusions of
law.7 Specifically, the Pool contends that the superior court should have applied a de
novo standard of review instead of an “any evidence” standard because the Appellate
Division’s award contained legal errors. We discern no error.
The Pool is correct that a de novo standard of review applies to the Appellate
Division’s conclusions of law, and the superior courts in these cases correctly noted
that an any evidence standard applies to the Appellate Division’s findings of fact. Cho,
322 Ga. App. at 400. Contrary to the Pool’s argument, however, the superior court
in each of these cases did not apply an any evidence standard to the Appellate
7 The Pool’s arguments in Case Nos. A240287 and A24A0103 are nearly identical, and will be addressed together to the extent possible. 21 Division’s conclusions of law. Instead, these courts noted that, “[w]hen applying the
findings of fact to the Appellate Division’s conclusions of law, [the superior court]
does not find that there are grounds to reverse the decision of the Appellate
Division.” Thus, although the superior courts did not expressly state that they were
applying a de novo standard of review to the Board’s conclusions of law, there is
nothing in the orders to indicate otherwise. In any event, “[r]egardless of the standard
of review set forth in the superior court’s order, however, a ruling right for any reason
will be affirmed.” Aimwell, Inc. v. McLendon Enterprises, Inc., 318 Ga. App. 394, 400
(2) (734 SE2d 84) (2012) (citation and punctuation omitted). Accordingly, we affirm
the superior courts on this issue.
2. The Pool’s Alleged Errors Concerning the Appellate Division’s “Flawed”
Interpretation of the Pool Act in Case Nos. A24A0287 and A24A0103
Next, the Pool argues that the superior courts erred by deferring to the
Appellate Division’s “flawed” interpretation of the Pool Act. We disagree.
As noted above, the exhaustion provision set forth in OCGA § 33-36-14 (a) is
triggered when a person has (1) “a claim against a policy or an insured under a policy
issued by an insolvent insurer,” and (2) such “claim is a covered claim and is also a
22 claim within the coverage of any policy issued by a solvent insurer[.]” According to
the Pool, this language means that, as of the date of Guarantee’s and Lumbermen’s
insolvency, respectively, NHIC’s and Rochdale’s respective policies should be treated
as primary coverage such that the Pool is entitled to reimbursement for the amounts
that it has paid to Ward and Hall. The appellees counter that if there is no
employment relationship between a business using a staffing company and a worker,
then the claim is not a “claim within the coverage of” the business’s workers’
compensation insurance policy.
In determining the effect of statutes such as the Pool Act and the WCA, we
presume that “the General Assembly meant what it said and said what it meant.” Deal
v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation
omitted). To that end, we afford the statutory text “its plain and ordinary meaning,”
and we read that text in the “most natural and reasonable way, as an ordinary speaker
of the English language would.” Id. at 172-173 (1) (a) (citations and punctuation
omitted). The Pool Act expressly requires that a claim fall “within the coverage of any
policy issued by the solvent insurer[.]” OCGA § 33-36-14 (a) (emphasis supplied).
This language is unambiguous. In short, the Pool’s right to reimbursement turns on
23 whether Ward’s and Hall’s claims were within the coverage of the solvent insurers’
policies. Importantly, the Pool has failed to point to language in either NHIC’s or
Rochdale’s policies that would require them to provide workers’ compensation
benefits to associates with whom Zep and Carpet Cycle had no employment
relationship. The mere fact that Zep’s and Carpet Cycle’s insurers remain solvent
does not transform Ward’s and Hall’s claims into covered claims, and we find no
error in the Appellate Division’s interpretation of the Pool Act in this regard.
3. The Pool’s Alleged Errors Surrounding the Application of OCGA § 34-9-11 (c) in
Case Nos. A24A0287 and A24A0103
The Pool also argues that the superior courts erred by failing to consider
whether a business utilizing the services of a temporary help contracting firm is liable
for workers’ compensation benefits by virtue of OCGA § 34-9-11 (c). We find no
error.
As a general principle, OCGA § 34-9-11 (a) provides that the WCA is the
exclusive remedy for a worker who sustains an injury arising out of and in the course
of employment. “When an employee’s injuries are compensable under the [WCA],
the employee is absolutely barred from pursuing a common law tort action to recover
24 from such injuries[.]” Kellogg Co. v. Pinkston, 253 Ga. App. 190, 191 (1) (558 SE2d
423) (2001) (citation omitted). In 1995, the General Assembly extended this tort
immunity to “businesses using the services of a temporary help contracting firm . . .
or an employee leasing company,” provided that workers’ compensation benefits are
furnished by either: (1) a temporary help contracting firm or an employee leasing
company; or (2) a business using the services of either such firm or company. OCGA
§ 34-9-11 (c). In addition, under OCGA § 34-9-11 (c), “[a] temporary help contracting
firm . . . shall be deemed to be a statutory employer for the purposes of this chapter.”
Subsection (c) does not, however, state that the business using the services of a
temporary help contracting firm is considered to be a statutory employer for purposes
of the WCA.
According to the Pool, Zep and Carpet Cycle cannot enjoy tort immunity unless
they are also responsible for workers’ compensation coverage for employees, such as
Ward and Hall, who sustain injuries while on assignment from a staffing agency.
In addition to the above-cited rules of statutory construction, we are mindful
that “[w]hen a statute is amended, from the addition of words it may be presumed
25 that the legislature intended some change in the existing law.” Glass v. Faircloth, 354
Ga. App. 326, 331 (2) (840 SE2d 724) (2020) (citation and punctuation omitted).
Employing these rules, we find that the language of OCGA § 34-9-11 (c) is
plain, unambiguous, and clearly extends tort immunity to businesses using the services
of staffing companies — so long as either the business or the staffing company obtains
coverage required by the WCA, as was the case here. See SecureAlert, Inc. v. Boggs, 345
Ga. App. 812, 821 (815 SE2d 156) (2018) (“We must assume that the General
Assembly weighed the costs and the benefits before enacting the statute.”); see also
Aimwell, Inc., 318 Ga. App. at 396-397 (1) (interpreting statutes “requires us to follow
the literal language of the statute unless it produces contradiction, absurdity, or such
an inconvenience as to insure that the legislature meant something else”) (citation and
punctuation omitted).
Nevertheless, the Pool maintains that the purposes of the WCA would be
undermined if, for example, “Guarantee[/Lumbermen’s] was still solvent but
NGS[/Aliyah] simply allowed their coverage to lapse, without a finding that
Zep[/Carpet Cycle] as a client company was obligated as a statutory employer to step
in [and] provide coverage[.]” The Pool maintains that such a scenario would leave the
26 employees without benefits, and also without the ability to bring a tort action against
Zep and Carpet Cycle. This argument is unavailing.
The Pool’s hypothetical conflates the insolvency of an insurer with an
employer’s failure to obtain workers’ compensation coverage in the first instance.
While the former situation is governed by the Pool Act, the latter situation is
controlled by Article 4 of the WCA, OCGA § 34-9-120 et seq. “The [WCA] requires
that employers insure the payment of workers’ compensation benefits to injured
workers, either by procuring insurance or by qualifying as a self-insurer.” Sheehan v.
Delaney, 238 Ga. App. 662, 662 (1) (521 SE2d 585) (1999). If an employer fails to
obtain workers’ compensation coverage or allows the coverage to lapse, “the
employer remains liable for payment of benefits.” Id. Thus, the WCA provides a
remedy in the event that an employer fails to comply with its obligation to obtain
workers’ compensation coverage. In light of the foregoing and given the particular
facts of these cases, we affirm the Appellate Division’s conclusion that OCGA § 34-9-
11 (c) does not impose workers’ compensation liability on Zep and Carpet Cycle.
4. The Pool’s Alleged Errors Regarding “Contracting Around” Requirements of the
Pool Act in Case Nos. A24A0287 and A24A0103
27 The Pool also argues that the superior court in each of these cases erred by
failing to consider whether parties can contract around the requirements of the Pool
Act. Specifically, the Pool argues that allowing a business to agree that a staffing
company will provide workers’ compensation coverage is an impermissible
contractual provision contravening the Pool Act. We disagree.
First, “all statutes are presumed to be enacted by the legislature with full
knowledge of the existing condition of the law and with reference to it.” Glass, 354 Ga.
App. at 331 (2) (citation and punctuation omitted). Here, the WCA contemplates that,
in certain circumstances, parties may enter into agreements for a particular entity to
be responsible for obtaining workers’ compensation coverage. See, e.g., OCGA §§ 34-
9-11 (c); 34-9-224. These statutes do not carve out limitations based upon the
requirements of the Pool Act, and “we will not read into the Code a limitation that is
absent.” Glass, 354 Ga. App. at 332 (2); see also Chase v. State, 285 Ga. 693, 698 (2)
(681 SE2d 116) (2009) (in interpreting statutes, we will not “usurp the General
Assembly’s legislative role by engrafting” language from one Code section onto
another).
28 5. The Pool’s Alleged Errors Concerning the Appellate Division’s Employment
Relationship Findings in Case Nos. A24A0287 and A24A0103
In related claims of error, the Pool challenges the Appellate Division’s
conclusion that the respective employees, Ward and Hall, did not have employment
relationships with the businesses, Zep and Carpet Cycle, at the time of their respective
injuries. In particular, the Pool argues that the Appellate Division failed to analyze the
factors relevant to determining an employee’s status as a “borrowed servant.” The
Pool contends that the Board focused on the general work relationship, respectively,
between the employees (Ward and Hall), the businesses (Zep and Carpet Cycle), and
the staffing companies (NGS and Aliyah). The Pool maintains that the proper inquiry
is which entity exercised control over Ward and Hall at the time of their injuries.
Under the borrwed servant doctrine, “if an employee is injured while in the
employ of his special (or ‘borrowing’) employer, he is precluded from bringing a tort
action against the special employer and must proceed under the Workers’
Compensation Act [the “WCA”].” Aimwell, Inc., 318 Ga. App. at 398 (1) (footnotes
omitted). An employee who is “working as a borrowed servant[ ] may recover for
injuries sustained in connection with his work from either his general or special
29 employer, or in some instances, both. Such recovery, however, is limited to those
benefits available under workers’ compensation law.” Id. at 398-399 (1) (citation,
punctuation and emphasis omitted).
In order for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control; and (3) the special master had the exclusive right to discharge the servant. All three prongs of the test must focus on the occasion when the injury occurred rather than the work relationship in general. And, where the contract between the two employers explicitly sets forth each requirement of the borrowed servant doctrine, the contract between the parties is controlling as to their responsibilities thereunder.
Healthcare Staffing, Inc. v. Edwards, 360 Ga. App. 131, 133 (1) (860 SE2d 874) (2021)
(citations and punctuation omitted).
(a) Case No. A24A0287
In Case No. A24A0287, the Pool cannot establish the third prong of the
borrowed servant analysis. Hence, we find no error in the decision on this issue.
Under the third prong of the borrowed servant doctrine, the borrowing
employer must have “the exclusive right to discharge the servant.” Healthcare
Staffing, Inc., 360 Ga. App. at 133 (1). We have interpreted this prong as meaning the
30 “unilateral right to discharge, as opposed to the sole right to discharge.” Id. The
Personnel Agreement between Zep and NGS provides as follows with regard to
assignment, discipline, and dismissal of NGS employees placed at Zep:
8. Assignment of Associates. . . . ZEP[ ] shall have the right to request disciplinary action including dismissal of personnel [ ]; however, [NGS] shall handle all such disciplinary action. NGS will use its best efforts to work with ZEP[ ] to resolve employment issues including but not limited to issues related to disability, [Family and Medical Leave Act], investigations, or any violation of [Zep’s] policies including its Code of Conduct.
Notably, the Personnel Agreement lacks any requirement that NGS honor a
request from Zep to discipline or terminate an employee. Nor does the Personnel
Agreement specify that Zep may unilaterally decide to terminate an NGS employee
on assignment to Zep. Indeed, the Personnel Agreement specifically provides that
NGS has the sole authority to fire employees it provides to Zep. Moreover, the
Personnel Agreement expressly disclaims NGS’s liability for any loss or liability
resulting from Zep’s “making substantial changes in the Assigned Associate’s job
duties or risks without NGS’s prior written approval.” In addition, the Appellate
Division cited evidence (adduced at the hearing before the ALJ) that an NGS manager
31 was on-site each day at the Zep warehouse, and the manager would need to be
consulted if Zep wanted to reassign an NGS worker to a different department in the
warehouse. In light of the foregoing, there is evidence to support the Appellate
Division’s conclusion that Ward was not a borrowed servant at the time of his injury,
and the superior court did not err in upholding the Appellate Division’s decision that
the Pool was not entitled to reimbursement from Zep/NHIC. See Healthcare Staffing,
Inc., 360 Ga. App. at 134-135 (1) (concluding that borrowed servant doctrine did not
apply where contract between heath facility and healthcare personnel contractor did
not give health facility exclusive right to discharge contractor’s employees, but merely
allowed heath facility to request removal of contractor’s personnel).
In light of the foregoing, in Case No. A24A0287, we affirm the Superior Court
of Bartow County’s order affirming the award of the Appellate Division.
(b) Case No. A24A0103
In Case No. A24A0103, the Appellate Division based its conclusion that Hall
was not Carpet Cycle’s borrowed servant on evidence that Aliyah (1) had some
ongoing involvement and interaction with its assigned employees; (2) retained the
ability to terminate Hall’s employment; and, (3) exercised its right to assign Hall to
32 other work. However, all three prongs of the borrowed servant test must focus on
“the occasion when the injury occurred,” as opposed to the work relationship in
general. Garden City v. Herrera, 329 Ga. App. 756, 759 (1) (766 SE2d 150) (2014)
(citation and punctuation omitted). As the factors relied upon by the Appellate
Division relate to the general work relationship between Hall and Carpet Cycle on the
date of his injury, we find that it erred.
Here, the evidence showed that Hall filled out paperwork with Aliyah so he
could be covered by workers’ compensation insurance, he brought his time cards to
Aliyah’s office, and Aliyah paid him for his work. Although this evidence is relevant
to the general nature of Hall’s employment relationship with Aliyah, it does not
support a finding that Aliyah controlled Hall’s work on the day he was injured. Rather,
the evidence is uncontradicted that Aliyah did not provide instructions regarding the
work, did not provide an on-site supervisor, and Aliyah personnel did not visit the job
site or otherwise provide any direction to Hall regarding his work for Carpet Cycle.
With regard to the right to discharge, Aliyah’s representative testified that client
companies such as Carpet Cycle had authority to fire employees, and the companies
were not required to notify or seek permission from Aliyah to terminate an employee’s
33 employment. This evidence demonstrates that Hall was Carpet Cycle’s borrowed
servant at the time of his injury. See Healthcare Staffing, Inc. v. Edwards, 360 Ga. App.
131, 133 (1) (860 SE2d 874) (2021) (requirement that borrowing employer have “the
exclusive right to discharge the servant” means the “unilateral right to discharge, as
opposed to the sole right to discharge”); Stalwart Films, LLC v. Bernecker, 359 Ga.
App. 236, 240-242 (1) (855 SE2d 120) (2021) (stunt performer, though not a direct
employee of film company, was borrowed servant of film company at time of his fatal
injury because film company controlled time, method, and manner of performer’s
work, performer was directed as to exactly how he should appear during stunt
sequence, he had specific call time each day, and he did not have authority to change
time when he could perform); Coca-Cola Co. v. Nicks, 215 Ga. App. 381, 381-382 (450
SE2d 838) (1994) (evidence — that employee of temporary employment agency (who
was assigned to work for corporation) was trained, supervised, and given assignments
by corporation’s personnel, worked alongside corporation’s employees at same tasks,
and was subject to corporation’s exclusive authority to terminate her employment —
showed that she was borrowed servant of corporation).
34 Accordingly, we reverse the Superior Court of Gordon County’s order to the
extent it affirmed the Appellate Division’s conclusion that Hall was not a borrowed
servant at the time of his injury.8
6. Constitutional Challenges in Case No. A24A0103
In its order affirming the decision of the Appellate Division, the Superior Court
of Gordon County found it unnecessary “to rule on the constitutional challenge raised
in Carpet Cycle/Rochdale’s cross-appeal. Given our reversal on the borrowed servant
issue, we remand to the superior court to consider, in the first instance, the
constitutional issues raised by Carpet Cycle/Rochdale in connection with the
application of the Pool Act to the facts of that case. See Albany Surgical, P.C., v. Dept.
of Community Health, 257 Ga. App. 636, 636 (572 SE2d 638) (2002) (declaratory
judgment action remanded for Superior Court of Gordon County to determine
constitutional issues raised but not ruled upon).
8 The Pool’s argument — that the date of insolvency, rather than the date of injury, controls for purposes of establishing the Pool’s right to reimbursement — misses the mark. Neither party argues that Hall had an employment relationship with either Aliyah or Carpet Cycle on the date of Lumbermen’s liquidation in 2016. The Appellate Division and the superior court thus were correct to focus on the date of injury. Therefore, this claim of error does not alter the outcome of this case, nor does it provide grounds for reversal. 35 Case No. A24A0211
7. Cross-Appeal Regarding Constitutional Challenges in Case No. A24A0211
In its cross-appeal, Carpet Cycle/Rochdale argues that the superior court
should have considered the constitutionality of the Pool Act as applied to businesses
and their solvent insurers. Specifically, they cite the due process concerns that would
arise if this Court adopts the Pool’s proposed interpretation of the Pool Act. They
contend that these concerns are highlighted by Hall’s claim — where he was injured
in 2010 and Carpet Cycle/Rochdale were not notified of the Pool’s intent to seek
reimbursement until 2019. The cross-appellants contend that allowing the Pool to
proceed in such a manner, without regard to any statute of limitation, would hinder
their ability to defend a claim due to the passage of time and similar considerations.
However, “appellate courts will not rule on a constitutional question unless it
clearly appears in the record that the trial court distinctly ruled on the point[.]” Price
v. Grehofsky, 349 Ga. App. 214, 222 (2) (825 SE2d 594) (2019) (citation and
punctuation omitted). Here, the superior court affirmed the decision of the Appellate
Division, and thus found it unnecessary “to rule on the constitutional challenge raised
in the cross-appeal of Carpet Cycle[ ], Rochdale [ ], and AmTrust [ ].” Accordingly,
36 “we do not reach th[ese] enumeration[s] of error or transfer the case to our Supreme
Court.” Id. In any event, in light of our remand and instructions to the superior court,
we do not address the constitutional issues raised in Case No. A24A0211.
Judgment affirmed in Case No. A24A0287. Judgment affirmed in part and reversed
in part in Case No. A24A0103 and remanded with direction in Case No. A24A0211.
Barnes, P. J., and Pipkin, J., concur.