Masterpiece Finishing Co. v. Callahan

• Citation: 180 Ga.App. 216,348 S.E.2d 586
• Decision Date: 04 September 1986
• Docket Number: No. 72708,72708
• Parties: MASTERPIECE FINISHING COMPANY et al. v. CALLAHAN.
• Court: United States Court of Appeals (Georgia)

Page 586

348 S.E.2d 586

180 Ga.App. 216

MASTERPIECE FINISHING COMPANY et al. v. CALLAHAN.

No. 72708.

Court of Appeals of Georgia.

Sept. 4, 1986.

Timothy H. Allred, Dalton, for appellants.

Thomas M. Finn, Dalton, for appellee.

CARLEY, Judge.

Appellee suffered a disabling injury while on-the-job and began receiving weekly temporary total disability income benefits from appellants, who are appellee's employer and its insurer. Several weeks later, the amount of the benefits was reduced. Appellee sought an administrative hearing to determine his correct average weekly wage base. At the hearing, it was stipulated that appellee had been employed to work eight hours per day, five days per week, and was to be paid $4.75 per hour. A wage statement was entered into evidence and stipulated to be accurate. The wage statement showed that, in the thirteen weeks prior to appellee's injury, he had worked during 57 out of the 65 work days. Appellee worked five five-day work weeks and only four days in each of the remaining eight weeks. In only two of the five work weeks in which appellee worked five days had he worked his full 40 hours. The parties further stipulated to the inapplicability of OCGA § 34-9-260(2) and agreed that the only issue for resolution was whether appellee's applicable average weekly wage base was his full-time weekly wage, pursuant to subsection (3) of OCGA § 34-9-260, or one-thirteenth of his actual wages in the thirteen weeks preceding his injury, pursuant to subsection (1) of OCGA § 34-9-260.

The administrative law judge (ALJ) found that appellee had not worked "substantially the whole" of the thirteen-week period preceding his injury. The ALJ therefore applied subsection (3) of OCGA § 34-9-260, and used appellee's full-time weekly wage as the basis upon which to compute compensation. The Full Board adopted the findings and conclusions of the ALJ as its own. The superior court affirmed, finding that, during the thirteen-week period preceding his injury, appellee had actually worked less than twelve full 40-hour weeks or less than 90% of his regular work schedule. In finding that it was not "unreasonable" to utilize the 90% figure as representing the threshold of "substantially the whole of 13 weeks," the superior court was persuaded by the decision of the Supreme Court of Florida in Wilkes & Pittman v. Pittman, 92 So.2d 822 (Fla.1957). Appellants applied to this court for a discretionary appeal. The application was granted, resulting in the instant appeal.

A claimant who has worked "during substantially the whole of 13 weeks immediately preceding the injury" clearly falls within the ambit of OCGA § 34-9-260(1), and it is that statutory provision which must be used to calculate his compensation. See Thomaston Mills v. Kierbow, 177 Ga.App. 368, 370, 339 S.E.2d 361 (1985). "[T]he burden of proof is on the claimant to establish by sufficient competent evidence the basis upon which his compensation is to be computed." Hood v. Jackson, 81 Ga.App. 465(3), 59 S.E.2d 45 (1950). Appellants stipulated to the evidence which appellee contends demonstrates that subsection (3) of OCGA § 34-9-260 is controlling, in that subsection (1) "cannot reasonably and fairly be applied" under the circumstances. The Full Board considered that evidence and determined that appellee had not worked "during substantially the whole of [the] 13 weeks." "OCGA § 34-9-105(a) provides, in relevant part, that an award of the State Board of Workers' Compensation 'shall be conclusive and binding as to all questions of fact.' Neither the superior court nor the Court of Appeals has any authority to substitute itself as the fact-finding body in lieu of the Board of Workers' Compensation.... '[A]n award must be affirmed if there is any evidence to support it.' [Cit.]" Spalding County Commissioners v. Tarver, 167 Ga.App. 661, 662-663, 307 S.E.2d 58 (1983).

" 'Substantially,' like 'reasonably,' is one of those words that deliberately leaves a wide area of discretion to commissioners and courts. About all that can be said is that the very choice of such an elastic word indicates that the test...