State of Ga. v. Goolsby
State of Ga. v. Goolsby
Opinion of the Court
In February of 1987, the Grand Jury of Columbia County began the investigation of possible criminal activity on the part of the local sheriff. In anticipation of his own disqualification to participate therein, the District Attorney of the Augusta Judicial Circuit inquired whether appellee-claimant Kenneth Goolsby, a former district attorney who is now engaged in private practice, would accept an appointment as special counsel. After receiving assurances that he would be afforded full independence in the conduct of the investigation, appellee accepted the appointment. Accordingly, on February 11, 1987, the district attorney formally appointed appellee special counsel “with all rights, duties and obligations appurtenant to that office, said appointment to continue at the pleasure of the District Attorney.”
Thereafter, appellee continued his private legal practice but devoted most of his time to the criminal investigation. Appellee was compensated at an hourly rate by Columbia County, and at no time did he receive compensation from the State of Georgia. On February 26,1987, while engaged in his employment as special counsel, appellee was involved in an automobile collision. As the result of the injuries that he received, appellee filed a claim for workers’ compensation.
1. If, as a matter of law, appellee was an independent contractor, then any question of whether he would be entitled to workers’ compensation from Columbia County or from the state becomes moot. Accordingly, the issue of appellee’s status as an independent contractor will be addressed first.
“The district attorney in each judicial circuit may employ such additional assistant district attorneys, deputy district attorneys, or other attorneys, investigators, paraprofessionals, clerical assistants, and other employees or independent contractors as may be provided for by local law or as may be authorized by the governing authority of the county or counties comprising the judicial circuit. The district attorney shall define the duties and fix the title of any attorney or other employee of the district attorney’s office.” (Emphasis supplied.) OCGA § 15-18-20 (a). Appellee was not appointed to serve as a full-time general employee of the district attorney. Notwithstanding his appointment, appellee maintained his private law practice and the district attorney defined appellee’s duties as relating exclusively to the conduct of the criminal investigation of the local sheriff and the district attorney fixed appellee’s title as special counsel for that particular investigation. It is undisputed that the control of that investigation was intended to be in the hands of appellee rather than of the district attorney. This is affirmatively shown by testimony that appellee’s independence was a condition of his acceptance of the appointment. It is also inferentially shown by the ostensible disqualification of the district attorney from participation in the investigation. If, notwithstanding his purported disqualification, the district attorney nevertheless intended to exercise control over appellee’s conduct of the investigation, then his appointment of appellee as a special counsel was a sham. There is evidence that, subsequent to his appointment, appellee did receive guidance and help from the district attorney. There is, however, no evidence that the district attorney undertook the control of the investigation. In fact, the evidence shows that the district attorney placed one of his own assistants under appellee’s supervision and control and that this assistant considered that it was appellee and not the district attorney who was in control of the inves
“ ‘The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contra-distinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. [Cits.]’ [Cit.]. . . . [T]he continuous check of ‘the work of an independent contractor to see that the work is being done according to the specifications of the job is thoroughly consistent with the relationship of employer and independent contractor and with the mere right of the employer to insist on a certain specific result.’ . . . ‘[T]he right to change the work and the right to dispense with the independent contractor’s services if, during the performance of the job, it appeared that he either was incapable or unwilling to do the job according to the plans and specifications’ [is] consistent with the independent contractor relationship. ‘The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he shall use and what procedures he shall follow’ . . . .” Simpkins v. Unigard Mut. Ins. Co., 130 Ga. App. 535, 538 (1) (203 SE2d 742) (1974).
“[NJothing else appearing, . . . evidence as to the power to terminate the employment alone is sufficient evidence to authorize a finding that the [employer] had the right to control the time, manner and method of doing the work.” (Emphasis supplied.) Golosh v. Cherokee Cab Co., 226 Ga. 636, 638 (176 SE2d 925) (1970). However, there is considerably more in the present case than the evidence that appellee’s appointment as special counsel was “at the pleasure” of the district attorney. Appellee maintained his status as a private attorney and was appointed special counsel for the limited purpose of conducting a particular investigation on behalf of Columbia County. He
2. Remaining enumerations of error need not be addressed.
Judgment reversed.
Dissenting Opinion
dissenting.
I must respectfully dissent. It is well-established that when an appeal is taken from an award of the State Board of Workers’ Compensation granting compensation the evidence must be construed by this court in a light most favorable to the prevailing party and cannot be reweighed on appeal. Any finding of fact by either an administrative law judge or the full board, when supported by any evidence, is
Further, our decision in this case is consistent with this court’s general policy of construing the provisions of the Workers’ Compensation Act liberally in order to afford the injured , claimant a remedy. “The case, though it has many sprangles in the record, has a solid nucleus which controls it.” Kirkland v. Wade, 61 Ga. 478, 481 (1878).
On Motion for Rehearing.
“We are fully aware of the well-established rule in respect to the finality and binding effect of the findings and award of the State Board of [Workers’] Compensation, when supported by any competent evidence; but as was said in [Aetna Cas. & Sur. Co. v. Honea, 71 Ga. App. 569, 571-572 (31 SE2d 421) (1944)]: ‘While it has been ruled in numerous decisions of the Supreme Court and this court, that findings of fact by the State Board of [Workers’] Compensation, if supported by any competent evidence, are conclusive, in the absence of fraud, and can not be set aside by the courts; still, where there is no conflict in the evidence and but one legal conclusion can be reached therefrom . . ., then a finding by the board granting compensation can, and under the law, should be set aside by the court.’ ” Gay v. Aetna Cas. &c. Co., 72 Ga. App. 122, 125 (33 SE2d 109) (1945), overruled on other grounds Federal Ins. Co. v. Coram, 95 Ga. App. 622 (98 SE2d 214) (1957). There is no conflict in the evidence in this case. Compare Reliance Ins. Co. v. Ham, 130 Ga. App. 382 (203 SE2d 315) (1973). .Although appellee was to serve “at the pleasure” of the district attorney, the remaining undisputed evidence as to the district attorney’s lack of a right to control appellee in his capacity as special counsel cannot be eliminated from consideration. “[D]irect and posi
Motion for rehearing denied.
Reference
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- State of Georgia v. Goolsby
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