2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 6 - Payment of Compensation
Part 1 - Medical Attention
§ 34-9-2.2. Eligibility of Sole Proprietor or Partner for Workers' Compensation Insurance

Any sole proprietor or partner of a business whose employees are eligible for benefits under this chapter may elect to be included as an employee under the workers' compensation insurance coverage of such business if he is actively engaged in the operation of the business and if the insurer is notified of his election to be so included. Any such sole proprietor or partner shall, upon such election, be entitled to the employee benefits and be subject to the employee responsibilities prescribed in this chapter.

(Code 1981, §34-9-2.2, enacted by Ga. L. 1984, p. 1218, § 1.)

- For article, "Workers' Compensation," see 53 Mercer L. Rev. 521 (2001).

JUDICIAL DECISIONS

Purpose of Workers' Compensation Act.

- The Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., is in derogation of common law. However, because it is highly remedial in nature, it should be liberally construed with a view of applying the beneficent purposes of the Act, so as to effectuate its humane objectives and its purpose, and to extend them to every class of worker and employee that can fairly be brought within its provisions. Subsequent Injury Trust Fund v. Lumley Drywall, 200 Ga. App. 703, 409 S.E.2d 254, cert. denied, 200 Ga. App. 897, 409 S.E.2d 254 (1991).

- Sole proprietor who elects workers' compensation coverage as an "employee" under O.C.G.A. § 34-9-2.2 is an "employer" for purposes of reimbursement from the Subsequent Injury Trust Fund established by O.C.G.A. § 34-9-350. Subsequent Injury Trust Fund v. Lumley Drywall, 200 Ga. App. 703, 409 S.E.2d 254, cert. denied, 200 Ga. App. 897, 409 S.E.2d 254 (1991).

- If the evidence shows to the satisfaction of the board that a sole proprietor/employer hired oneself with knowledge of the proprietor's own preexisting permanent impairment, the terms of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) are satisfied. Subsequent Injury Trust Fund v. Lumley Drywall, 200 Ga. App. 703, 409 S.E.2d 254, cert. denied, 200 Ga. App. 897, 409 S.E.2d 254 (1991).

- When there was evidence that the agency which handled the insurance included a sole proprietor as an insured employee as a matter of course, but no premium based on the proprietor's salary was charged, and there was no evidence that the sole proprietor elected to be so insured or notified the insurer of the proprietor's decision, the proprietor was not covered because the proprietor was not an employee. King v. James King Cleaners & Laundry, 199 Ga. App. 796, 405 S.E.2d 909 (1991).

- Employer in the employer's own business who had exempted oneself from workers' compensation coverage the employer procured for the employer's own employees could be a covered employee of another employer. Peters v. Kevin Moody Constr., 223 Ga. App. 133, 476 S.E.2d 772 (1996).

Employer who expressly exempted oneself from coverage under O.C.G.A. § 34-9-2.2 was barred from making a claim against the employer's own company and the employer could not claim under O.C.G.A. § 34-9-8(a) to be an employee injured while employed by the employer's company in its capacity as a subcontractor. Greg Fisher, Ltd. v. Samples, 238 Ga. App. 825, 520 S.E.2d 280 (1999).

In an action for injuries against a principle contractor, because the plaintiff was not a subcontractor of the defendant, the contractor's election to protect oneself under O.C.G.A. § 34-9-2.2 would not be treated as a forfeiture of the employer's common law rights when O.C.G.A. § 34-9-11(a) does not mandate such loss of the right to sue a third party tortfeasor and when O.C.G.A. § 34-9-8 affords the employer no benefits or protection. Kaplan v. Pulte Home Corp., 245 Ga. App. 286, 537 S.E.2d 727 (2000).

Workers' compensation claimant, who elected not to be included in a partnership's workers' compensation coverage under O.C.G.A. § 34-9-2.2, could claim coverage under the workers' compensation policy of an employer of the partnership. Atlas Constr. Co. v. Pena, 268 Ga. App. 566, 602 S.E.2d 151 (2004).

Cited in Sherwin-Williams Co. v. Escuadra, 224 Ga. App. 894, 482 S.E.2d 505 (1997); Cypress Ins. Co. v. Duncan, 281 Ga. App. 469, 636 S.E.2d 159 (2006).

- Physical examinations of persons pursuant to civil actions generally, § 9-11-35.

Appointment of physician or surgeon by board to examine employee prior to hearing of claim for workers' compensation, § 34-9-101.

- For article, "Workers' Compensation," see 53 Mercer L. Rev. 521 (2001). For survey article on workers' compensation law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For survey article on workers' compensation law, see 59 Mercer L. Rev. 463 (2007). For article, "The Broken Machine" Mandatory Medical Treatment Under Georgia Workers' Compensation 24 Ga. St. B.J. 19 (Oct. 2018).

This section provided that the board may require an autopsy by appropriate order and that an employer might require an autopsy by seeking such an order from the board. Employers Mut. Liab. Ins. Co. v. Carson, 100 Ga. App. 409, 111 S.E.2d 918 (1959).

- Administrative law judge (ALJ) and the Georgia Workers' Compensation Board properly awarded an employer its attorney fees as: (1) the claimant did not appeal the ALJ's decision to require the claimant to submit to an examination, but simply defied it; (2) the blatant defiance of an ALJ order was evidence that the claimant defended the proceedings in part without reasonable grounds; (3) the claimant was not required to defy the order so as to present the claimant's justification for doing so; (4) the claimant had a chance to present the claimant's justification to the ALJ, and failed to reiterate the claimant's position on an appeal to the Board; and (5) the ALJ and the Board had some evidence upon which to base a finding that when the claimant contested the sanctions motion, the claimant did so without reasonable grounds. Goswick v. Murray County Bd. of Educ., 281 Ga. App. 442, 636 S.E.2d 133 (2006), cert. denied, 2007 Ga. LEXIS 102 (Ga. 2007).

- Reviewing court did not err in affirming a refusal by the Georgia Workers' Compensation Board to require an employer to continue making disability payments to a workers' compensation claimant pending the appeal proceedings as in O.C.G.A. § 34-9-202(c), the Georgia legislature decided that supersedeas did not attach pending the appeal of a benefit suspension order based on a refusal to undergo an examination; further the order was analogous to an injunction as the administrative law judge's and the Board's orders did not award monies, but relieved the employer from taking certain actions at any time, and remained in force pending the appeal in the absence of a special order of supersedeas. Goswick v. Murray County Bd. of Educ., 281 Ga. App. 442, 636 S.E.2d 133 (2006), cert. denied, 2007 Ga. LEXIS 102 (Ga. 2007).

- Administrative law judge and the Georgia Workers' Compensation Board properly suspended a workers' compensation claimant's benefits as the claimant refused to submit to an examination of the claimant's treating physician at the request of an employer under O.C.G.A. § 34-9-202(a) and (c) as: (1) § 34-9-202 required the claimant to undergo an examination by "a duly qualified physician or surgeon" or face a suspension of benefits; (2) the treating physician was duly qualified; (3) § 34-9-202 did not require that the examination be done by an "independent" physician; (4) former O.C.G.A. § 34-9-200(c) dealt with the refusal to accept treatment ordered by the Board, which was a different situation; and (5) the version of § 34-9-200(c) set forth after a 2003 amendment and § 34-9-202 authorized the suspension of benefits if a claimant refused to submit to an employer-requested examination. Goswick v. Murray County Bd. of Educ., 281 Ga. App. 442, 636 S.E.2d 133 (2006), cert. denied, 2007 Ga. LEXIS 102 (Ga. 2007).

RESEARCH REFERENCES

Am. Jur. 2d.

- 82 Am. Jur. 2d, Workers' Compensation, § 546.

- 100 C.J.S., Workers' Compensation, § 993 et seq. 100A C.J.S. Workers' Compensation, § 1119 et seq.