In this workers’ compensation case, the administrative law judge (“ALJ”) awarded benefits to Orlando Gaffney, an injured employee of Aimwell, Inc., against both Aimwell andAimwell’s customer, McLendon Enterprises, Inc. (‘McLendon”), in equal parts, finding that Gaffney was a joint employee of both entities at the timе of his injury. The Appellate Division of the State Board of Workers’ Compensation upheld the factual findings of the ALJ award, but set aside the equal liability apportionment, concluding that Aimwell was required to pay for 100 percent of the claim pursuant to OCGA § 34-9-224. The superior court affirmed the Board’s decision, and Aimwell filed an application for discretionary appeal, which this Court granted. Aim-well and its insurer appeal in Case No. A12A1415, arguing that the superior court applied the incorrect standard of review and misapplied the borrowed servant doctrine аnd OCGA § 34-9-224. McLendon and its insurer cross-appeal in Case No. A12A1416, arguing that Gaffney was not McLendon’s borrowed servant at the time of his injury. For the reasons that follow, we affirm.
The record shows that Aimwell was a truck and driver leasing company, which provided hauling services to road contractоrs, including dump trucks and licensed drivers. Aimwell’s main customer was McLendon, a road grading and utility contractor, which had some of its own trucks and drivers; Aimwell’s and McLendon’s offices were located in the same building and owned by a brother and sister. McLendon required Aimwell to provide proof of liability аnd workers’ compensation insurance for Aimwell’s employees before using them.
Gaffney was employed by Aimwell as a truck foreman, which position required him to assign equipment and drivers to jobs, handle hiring and discipline of employees, and supervise the drivers; he also operatеd dump trucks and other equipment as necessary, approximately three or four times per month. When Gaffney did operate equipment, he continued to act as supervisor for Aimwell and was available to other Aimwell drivers through radios.
On January 16, 2009, after Gaffney assigned all available Aim-well drivers to various jobs, a McLendon supervisor asked Gaffney whether he would be willing to drive a McLendon truck, and Gaffney agreed. While doing so, Gaffnеy was critically injured in a single-vehicle accident. Following the accident, a McLendon supervisor completed Gaffney’s time sheet for the day, assigning one hour to Aimwell for performing his supervisory duties and ten-and-a-half hours of driving time for McLendon. Aimwell billed McLendon for ten-and-a-hаlf hours of Gaffney’s time, and McLendon reimbursed Aimwell for that amount. Aimwell then paid Gaffney for a total of eleven-and-a-half hours of work for that day.
Aimwell’s workers’ compensation insurer, Graphic Arts Mutual Insurance Company (“Graphic Arts”), accepted Gaffney’s claim and paid all benefits owed to Gaffney pursuant to the Act. Aimwell and Graphic Arts then sought a judicial determination regarding whether McLendon was liable for the claim and, if so, in what proportion. Following a hearing, the ALJ entered an award finding that Gaffney was a borrowed servant of McLendon becausе at the time: (1) McLendon “exercised nearly complete control over the occasion of [Gaffney]’s work”; (2) Gaffney was working for McLendon and performing no work for Aimwell; (3) Aimwell exercised no control over Gaffney’s work;
The Appellate Division agreed with the ALJ’s factual findings, concluding that “at the time of his accident[, Gaffney] was a joint employee[,] and both employer/insurers are subject to the provisions of OCGA § 34-9-224.” Finding that beсause “the burden of income and medical benefits rests entirely with [Aimwell,]” the Appellate Division concluded that Aimwell’s burden of compensation was 100 percent.
Case No. A12A1415
1. Aimwell and Graphic Arts argue that the superior court erred by affirming the Appellate Division’s finding that Aimwell was required to bear 100 percent of Gaffney’s compensation claim pursuant to OCGA § 34-9-224. We disаgree.
Notably, Aimwell and Graphic Arts do not dispute that Gaffney was in the joint service of Aimwell and McLendon at the time of his injury. Instead, they challenge the 100 percent liability apportionment to Aimwell based on the finding that Aimwell had sole “wage liability” to Gaffney.
OCGA § 34-9-224 provides:
Whenever any employeе 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 tо 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.3
The parties disagree as to the meaning of this statute. McLendon argues that its plain terms require the conclusion that Aimwell had 100 percent wage liability, while Aimwell contends that the superior court’s finding conflicts with the plain language of the statute and is contrary to legislative intent.
Our analysis of this issue begins “with the ‘golden rule’ of statutory construction, which 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.”
look diligently for the intention of the General Assembly. When the language of a statute is plain and unambiguous and not leading to an absurd result, it evidences the legislative intent[,] which is not to be contravened. We also must endeavor to give each part of the statute meaning and avoid constructions that make some language mere surplusage or meaningless. Furthermore, a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give еffect thereto.5
Here, although McLendon paid Aimwell for Gaffney’s services, Aimwell alone paid Gaffney’s wages. Aimwell paid him by the hour at a set hourly rate, regardless of whether he served solely as the truck supervisor or also operated equipment for a customer. Thеre is no evidence that McLendon had any obligation to pay Gaffney or that Aimwell would fail to pay Gaffney if McLendon did not pay Aimwell for his time. And although Aimwell and McLendon could have made a reasonable arrangement for a different burden of compensation distribution as provided for in OCGA § 34-9-224, they did not do so. Finally, McLendon specifically required that Aimwell provide workers’ compensation insurance for its employees, including Gaffney. Under these circumstances, we conclude that Aimwell had sole wage liability to Gaffney.
Relying on Bennett v. Browning,
Aimwell’s misplaced reliance on Bennett is based upon conflation of the borrowed servant and joint employment doctrines. The borrowed servant doctrine provides that if an employеe is injured while in the employ of his special (or “borrowing”) employer,
Anemployee, [however,] working as a borrowed servant, may recover for injuries sustained in connection with his work from either his general or sрecial employer, or in some instances, both. Such recovery, however, is limited to those benefits available under workers’ compensation law.” 15
If a borrowed servant is not found to be a joint employee at the time of the injury, the special employer is fully responsible for comрensating the injured employee, regardless of whether the special employer pays the employee directly.
2. Aimwell argues that the Appellate Division relied upon an erroneous legal theory when it concluded that Aimwell had sole wage liability to Gaffney for purposes of apportioning liability pursuant to OCGA § 34-9-224 based uрon its finding that wage liability was synonymous with the actual payment of wages to the injured employee. Thus, Aimwell argues, because the Appellate Division relied upon an erroneous legal theory, the superior court erred by applying the any-evidence standard of review.
Pursuant tо OCGA § 34-9-103 (a), the Appellate Division of the Board reviewing the decision of an ALJ shall accept the AL J’s factual findings “where such findings are supported by a preponderance of competent and credible evidence contained within the records.” The Appellate Division’s review is limited to the record received before the ALJ, but
the Appellate Division must weigh the evidence and assess the credibility of witnesses and, if it determines that the award of the ALJ is supported by a preponderance of admissible evidence, the AL J’s award will be accepted. But, if after assessing the evidence of record, the Appellate Division concludes that the award does not meet the statutes’ evidentiary standards, the Appellate Division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly. Although the Appellate Division’s review is not strictly dе novo, the Appellate Division is a trier of fact, authorized to assess witness credibility, weigh conflicting evidence, and draw factual conclusions different from those reached by the ALJ who initially heard the dispute.17
“Erroneous applications of law to undisputed facts, as well as dеcisions based on erroneous theories of law, however, are subject to the de novo standard of review in the superior court.”
As discussed in Division 1, the rulings of the Appellate Division and the superior court were substantively correct. Thus, this enumeration presents no basis for reversal.
Case No. A12A1416
3. McLendon and its insurer, FCCI Insurance Company, argue that the trial court erred by affirming the Appellate Division’s conclusion that Gaffney was McLendon’s borrowed servant at the time of his accident. Pretermitting the merit of this argument, our review of this enumeration will not affect the outcome of this case because the superior court concluded that Aim well had sole compensation liability to Gaffney. Thus, this enumeration is moot, and we need not addrеss it.
Judgments affirmed.
Notes
According to an Aimwell supervisor, Gaffney’s first priority was Aimwell business.
The order of the Appellate Division noted that because Aimwell was receiving the benefit of Gaffney’s services as truck supervisor as well as the income stream from McLendon based on Gaffney’s driving, the fact that the 100 percent allocation of liability to Aimwell resulted in a windfall to McLendon did not require a different allocation, which would be less reasonable than the apportionment dictated by OCGA § 34-9-224.
(Emphasis supplied.)
(Punctuation omitted.) Spectera, Inc. v. Wilson,
(Punctuation omitted.) Id.
(Punctuation omitted; emphasis supplied.) Caremore, Inc. &c. v. Hollis,
See OCGA § 34-9-224.
See id. at 158.
(Emphasis in original.) Id. at 159.
Id.
In order for an employee to he a borrowed employee, the evidence must shоw 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 of these elements must exist and the element of the right to control relates specifically to the occasion when the injury occurred.
Coca-Cola Co. v. Nicks,
See United States Fidelity &c. Co. v. Forrester,
(Emphasis omitted.) Bennett,
(Emphasis supplied.) Coca-Cola Co.,
See Bennett,
(Citation and punctuation omitted; emphasis in original.) Bonus Stores, Inc. v. Hensley,
(Punctuation omitted.) Stokes v. Coweta County Bd. of Ed.,
(Punctuation omitted.) Crossmark, Inc. v. Strickland,
See id.