Fulton Cnty. Bd. of Educ. v. Thomas

• Decision Date: 23 May 2016
• Docket Number: No. S15G1205.,S15G1205.
• Citation: 786 S.E.2d 628,299 Ga. 59
• Parties: FULTON COUNTY BOARD OF EDUCATION et al. v. THOMAS.
• Court: Georgia Supreme Court

299 Ga. 59

786 S.E.2d 628

FULTON COUNTY BOARD OF EDUCATION et al.

v.THOMAS.

No. S15G1205.

Supreme Court of Georgia.

May 23, 2016.

Mark Edmond Irby, Todd Allen Brooks, Swift, Currie, Mcghee & Hiers, LLP, Atlanta, for appellants.

Kenneth Alan Smith, Joseph Wayne Brown, II, Smith, Wallis & Scott, LLP, Carrollton, for appellee.

HUNSTEIN

, Justice.

In this workers' compensation case, we granted certiorari to consider how properly to calculate the “average weekly wage,” as defined in OCGA § 34–9–260

, of a claimant who earned income from a temporary job with a second employer during the statutory 13–week period immediately preceding the date she was injured on the job with her primary employer. See id. at (1). The Court of Appeals held that the wages earned from the second employer during the 13–week period should, under the “concurrent similar employment” doctrine, be included in calculating the claimant's average weekly wage. Thomas v. Fulton County Bd. of Educ., 331 Ga.App. 828, 771 S.E.2d 482 (2015). Under the circumstances presented here, we agree with the Court of Appeals' conclusion, and we therefore affirm.

Appellee Merita Thomas has been employed as a school bus driver with the Fulton County Board of Education (hereinafter, “County”) since 2008. Thomas' employment with the County required her to drive County school buses during the nine-month school year but not during the school district's summer vacation; Thomas' salary, however, was paid out over a twelve-month period. During the district's summer vacation in 2011, Thomas supplemented her income by working for Quality Drive Away (“QDA”), driving newly manufactured school buses from the Atlanta area to other parts of the country. Thomas' summer employment with QDA ended on July 30, 2011, and she returned to her duties with the County when school resumed shortly thereafter.

On October 19, 2011, Thomas was injured while on the job with the County. She thereafter filed a claim for workers' compensation benefits. The County has never disputed the compensability of Thomas' injury, and the only contested issue is the correct calculation of Thomas' “average weekly wage,” the basis upon which her benefits are to be computed. See OCGA § 34–9–260

.

OCGA § 34–9–260

provides in pertinent part:

...

(1) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks;

(2) If the injured employee shall not have worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding paragraph; [and]

(3) If either of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wage of the injured employee shall be used[.]

Id. The dispute in this case centers on whether subsection (1) of this Code section is applicable and whether Thomas' wages from QDA are properly included in the calculation of her average weekly wage.¹ Integral to these questions is whether Thomas' employment with QDA falls within the so-called “concurrent similar employment” doctrine as adopted by our Court of Appeals in St. Paul–Mercury Indemnity Co. v. Idov, 88 Ga.App. 697, 77 S.E.2d 327 (1953)

, cert. dismissed, 210 Ga. 256, 78 S.E.2d 799 (1953), under which a claimant working multiple similar jobs at the time she sustains a compensable injury is entitled to have her wages earned from all such jobs included in calculating her average weekly wage.

At the administrative stage, the State Board of Workers' Compensation initially concluded that Thomas' employment with QDA constituted “concurrent similar employment,” because it involved the same “type and size” of school bus and “same skill set” as required in her employment with the Board, and because she was employed with QDA for some period within the 13 weeks prior to sustaining the compensable injury. Accordingly, the administrative law judge (“ALJ”) found that subsection (1) of OCGA § 34–9–260

should be applied and included in the average weekly wage calculation those wages Thomas had earned from QDA during the 13–week period immediately preceding the date of her injury.² On appeal, the Board's Appellate Division reversed the ALJ, finding that, while Thomas' employment with QDA was “similar” to her employment with the County, it was not “concurrent.” The Board reasoned that, because Thomas' employment with QDA ended prior to the date she sustained her injury, she “was not employed concurrently with another employer at the time of her work injury.” Accordingly, the Board held that the QDA earnings should not be included in the average weekly wage calculation.

Thomas appealed to superior court, which affirmed the Board's decision. Thereafter, on discretionary appeal, the Court of Appeals reversed. While agreeing with the conclusion that subsection (1) was applicable, the appellate court disagreed with the determination that Thomas' employment with QDA was not concurrent. It held:

[Thomas] was working as a bus driver for substantially the whole of the 13 weeks immediately preceding her injury on October 19, 2011, because she worked as a bus driver for both QDA and Fulton County during that time. OCGA § 34–9–260(1)

explicitly contemplates work “for the same or another employer ” and thus, because Thomas worked those 13 weeks for the same or another employer in the type of employment during which she was injured, her average weekly wage should have been computed based on her “total amount of wages earned” for her work during the 13 weeks immediately preceding her injury[.]

Thomas, 331 Ga.App. at 831–832, 771 S.E.2d 482

. We granted certiorari to review the Court of Appeals' holding. Because the issue presented is a question of law and the facts relevant to its resolution are undisputed, our review is de novo. See Luangkhot v. State, 292 Ga. 423, 424, 736 S.E.2d 397 (2013).

1. When we consider the meaning of a statute, “we must presume that the General Assembly meant what it said and said what it meant.” To that end, we must afford the statutory text its “plain and ordinary meaning,” we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

(Citations omitted.) Deal v. Coleman, 294 Ga. 170, 172–173(1), 751 S.E.2d 337 (2013)

.

The text of OCGA § 34–9–260

provides that the method of calculation prescribed in subsection (1) is to be applied “[i]f the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury[.]”

In this context, it has been held that the term “employment” refers to “the particular calling or kind of employment in which [the] claimant was engaged at the time of [her] injury.” Black v. American & Foreign Ins. Co., 123 Ga.App. 133, 134

–135(2), 179 S.E.2d 679 (1970). The use of the term “employment” rather than “employer” as the point of reference for the 13–week period is significant, illuminating the focus on the nature of the work performed rather than the identity of the employer. This principle is reinforced by the phrase “whether for the same or another employer,” which also indicates the significance of the actual work rather than the workplace.

Here, there is no dispute that Thomas' “employment” at the time she was injured was that of a school bus driver; in fact, the County concedes that her work with QDA was similar in nature to that which she performed for the County. In addition, it is undeniable that Thomas was working in this line of employment for “substantially the whole” of the 13–week period prior to the date of her injury—July 20 through October 19, 2011. The undisputed evidence reflected that Thomas worked for QDA through July 30, 2011—the first ten days of the 13–week period—and that she resumed driving for the County when the school year began in August 2011 and worked steadily from that time until she was injured. The facts presented here thus clearly fall within the scope of subsection (1).

2. We must next determine whether Thomas' QDA wages should be included in the calculation of her average weekly wage under the “concurrent similar employment” doctrine. Our Court of Appeals adopted this doctrine in 1953 in adjudicating a workers' compensation dispute wherein the claimant was employed as a retail salesman for three different employers at the same time and was injured on the job at one of the three workplaces. Idov, 88 Ga.App. at 698–699, 77 S.E.2d 327

. In deciding whether the claimant's wages from all three employers were to be used in computing his average weekly wage, the Court of Appeals noted:

The one high aim constituting the foundation of [the workers' compensation] law is compensation for an injured employee in proportion to his loss on account of the injury. That loss is deprivation of future earnings, and is measured by his proved earning capacity.... We think the fairest yardstick by which his compensation to cover his injury can be measured is what he was able to earn and was actually earning when the misfortune came upon him.

(Citation omitted.) Id. at 699, 77 S.E.2d 327

. The Court of Appeals thus concluded that the claimant's earning capacity should be determined by reference to the wages earned in “his concurrent work” so long as it was “similar in character to the work in the course of which the accident was sustained.” Id. at 700–701, 77 S.E.2d 327.³

Subsequent appellate cases have examined the degree of similarity...