North v. Floyd County Bd. of Educ., A93A2281

• Decision Date: 11 March 1994
• Docket Number: No. A93A2281,A93A2281
• Parties: , 90 Ed. Law Rep. 1241 NORTH v. FLOYD COUNTY BOARD OF EDUCATION, et al.
• Court: Georgia Court of Appeals

Page 809

442 S.E.2d 809

212 Ga.App. 593, 90 Ed. Law Rep. 1241

NORTH v. FLOYD COUNTY BOARD OF EDUCATION, et al.

No. A93A2281.

Court of Appeals of Georgia.

March 11, 1994.

Reconsideration Denied March 28, 1994.

Certiorari Denied April 28, 1994.

Mundy & Gammage, E. Lamar Gammage, Jr., B. Jean Crane, Cedartown, for appellant.

Swift, Currie, McGhee & Hiers, John F. Sacha, Atlanta, for appellees.

JOHNSON, Judge.

We granted Rhonda North's application for discretionary appeal to review the Superior Court's determination that North was not eligible for benefits because she was not an employee within the purview of the Georgia Workers' Compensation Act.

In August 1991, North applied for a position as a substitute bus driver with the Floyd County Board of Education. In September she began a two-and-one-half week training period which included both classroom and on-the-road assignments. While the training was a prerequisite for employment, North was neither paid during the training period, nor assured that she would ever be hired following its successful completion. On October 3, 1991, North accompanied a school bus driver on her route. After completing the route, the driver continued on to her home where North had left her car. North got off the bus, and while walking toward her car, slipped and fell on an embankment, injuring her ankle. She subsequently filed a claim for workers' compensation benefits.

"The question of whether a person is an employee is one of fact, and, where there is any evidence to sustain the Board's finding of fact, the superior court should not interfere." (Citations and punctuation omitted.) Echo Enterprises v. Aspinwall, 194 Ga.App. 444, 445(1), 390 S.E.2d 867 (1990). After hearing evidence in the case, an administrative law judge found that North failed to meet her burden of establishing that she was an employee of the Floyd County Board of Education at the time of the injury within the contemplation of the workers' compensation statutes primarily because she had not been guaranteed future employment even if she successfully completed the training, and because she received no compensation from the county during the training. Both the Appellate Division of the State Board of Workers' Compensation and the Superior Court of Floyd County affirmed the ALJ's decision.

Georgia courts have not directly addressed the issue of whether injuries sustained during the pre-employment period are compensable under workers' compensation statutes, but have analyzed the cases strictly in terms of whether an employer-employee relationship exists at the time of the injury. ¹ The dissent treats the three cases upon which it relies as if they shared a single unifying principle which is dispositive of the issue, i.e., if the applicant was under the direction and control of the employer at the time of the injury, there is coverage. In Howard Sheppard, Inc. v. McGowan, 137 Ga.App. 408, 224 S.E.2d 65 (1976) this court held that there was an implied contract for employment because the employer had received payment for the loads of gravel and sand transported by the applicant for a three-day period prior to his death, not we believe, as suggested by the dissent, because he had been under the direction and control of the employer. In Tommy Nobis Center v. Barfield, 187 Ga.App. 394, 370 S.E.2d 517 (1988), the court, in finding the existence of an employee-employer relationship, noted that the claimant was under the Center's supervision and control and observed that claimant was being paid. The Center was also being compensated from outside sources for the work which claimant performed. Finally, in Mansfield Enterprises v. Warren, 154 Ga.App. 863, 270 S.E.2d 72 (1980) (appeal after remand, Warren v. Mansfield Enterprises, 163 Ga.App. 785, 295 S.E.2d 864 (1982)) the rationale for this court's affirmation of the Superior Court's reversal of the Board's denial of benefits was that the Board has construed the nature of an employer-employee relationship too narrowly. We agreed that a "meeting of the minds" regarding the existence of an employer-employee relationship is not necessarily required, and to do so would ignore the long accepted concept of implied contracts. North willingly exposed herself to some risk in undertaking the training. The potential benefit flowing to Floyd County from North's training, however, the availability of another driver in a pool of substitute drivers, is not significant enough to demand a finding of an implied contract of employment in this case.

"The exclusive authority to make findings of facts in claims under the Georgia Workers' Compensation law is vested in the State Board of Workers' Compensation. Neither the superior court nor this court has the authority to substitute itself as a fact-finding body in lieu of the board." (Citations and punctuation omitted.) Harris v. Seaboard Farms, 207 Ga.App. 147, 149, 427 S.E.2d 524 (1993). With respect to the issue of control over North's activities, which the dissent finds to be the gravamen of the inquiry, the factfinder in this case also considered the conflicting testimony of the Director of Transportation for the Floyd County Board of Education who testified that he did not exercise control over North's activities and would not exercise such control unless and until she was hired as a substitute driver. The question of extent of control over a prospective employee's training is fact intensive and questions of fact in light of conflicting testimony are best resolved by the tribunal established by statute to resolve such matters. Our review of the record in this case does not reveal that the level of control over North's activities by Floyd County was so compelling as to justify this court's interference with the findings of fact of the ALJ and the Board that no employer-employee relationship existed. Those findings are supported by evidence in this record, and we are, therefore, bound to accept them under the "any evidence" standard of review.

Judgment affirmed.

BIRDSONG and BEASLEY, P.JJ., and ANDREWS and SMITH, JJ., concur.

POPE, C.J., McMURRAY, P.J., and COOPER and BLACKBURN, JJ., dissent.

BLACKBURN, Judge, dissenting.

I respectfully dissent.

I cannot agree with the majority that the decision of the trial court should be affirmed because the Board applied incorrect principles of law to the facts presented herein. The "any evidence" analysis relied upon by the majority does not apply where the Board's award is based upon an erroneous legal theory. As this Court stated in Mansfield Enterprises v. Warren, 154 Ga.App. 863, 270 S.E.2d 72 (1980), "[w]e are mindful of the controlling principles of appellate review in workers' compensation cases as articulated and adopted by this court on numerous occasions, and we agree that the board's award, when supported by any evidence, is conclusive and binding. [Cits.] However, [such an] award cannot be based upon an erroneous legal theory which precluded consideration by the board of evidence which, if considered, would have authorized a contrary result. [Cits.]" (Emphasis supplied.) "Where it affirmatively appears that the award is based upon an erroneous legal theory and not upon proper consideration of the evidence and applicable legal principles, the case should be remanded to the board for further findings. [Cit.]" Clark v. Fireman's Fund Ins. Co., 131 Ga.App. 809, 810-811, 207 S.E.2d 222 (1974). See also General-Motors Corp. v. Hargis, 114 Ga.App. 143, 144, 150 S.E.2d 303 (1966).

Under Georgia law, specifically OCGA § 34-9-1(2), " '[e]mployee' means every person in the service of another under any contract of hire or apprenticeship, written or implied...." While wages may be corroborative of other facts indicating employment at a given time, it is not itself conclusive of a master-servant relationship. Yellow Cab Co. v. Worrell, 155 Ga.App. 41, 273 S.E.2d 410 (1980); Travelers Ins. Co. v. Clark, 58 Ga.App. 115, 197 S.E. 650 (1938). See also Oelrich v. Schlagels, Inc., 426 N.W.2d 430 (Minn.1988).

Contrary to the majority's observations, this court has addressed the issue of whether an applicant is entitled to workers' compensation benefits when a prospective employer exercises control over the time, method, and manner of the applicant's tryout period or training program. In Tommy Nobis Center v. Barfield, 187 Ga.App. 394, 370 S.E.2d 517 (1988), Warren, supra, and Howard Sheppard, Inc. v. McGowan, 137 Ga.App. 408, 224 S.E.2d 65 (1976), this court repeatedly found that job applicants who were not paid by their prospective employers for tasks performed under the direction and control of the...