Thomas v. Fulton Cnty. Bd. of Educ.

Decision Date30 March 2015
Docket NumberNo. A14A2057.,A14A2057.
Citation331 Ga.App. 828,771 S.E.2d 482
PartiesTHOMAS v. FULTON COUNTY BOARD OF EDUCATION et al.
CourtGeorgia Court of Appeals

Smith, Wallis & Scott, Joseph Wayne Brown II, for Appellant.

Swift, Currie, McGhee & Hiers, Todd Allen Brooks, Atlanta, for Appellees.

Opinion

DOYLE, Presiding Judge.

Merita Thomas filed an application for discretionary appeal from a superior court order affirming the State Board of Workers' Compensation (“the Board”), which had overruled an Administrative Law Judge's (“ALJ”) award to Thomas.1 Thomas argues that the superior court erred by affirming the Board's order because (1) the Board incorrectly applied OCGA § 34–9–260 when calculating her average weekly wage; and (2) the Board incorrectly found that her second summer job was not concurrent employment for purposes of average weekly wage calculation. For the reasons that follow, we reverse and remand for further proceedings.

When reviewing awards in workers' compensation cases, both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division of the State Board of Workers' Compensation. It is axiomatic that the findings of the State Board of Workers' Compensation, when supported by any evidence, are conclusive and binding.2

Viewed in this light, the evidence shows that since 2008, Thomas has worked as a school bus driver for the Fulton County Board of Education (Fulton County). Thomas only drove the bus nine months of the year, but her salary was spread over twelve months. During the nine month school year, her hourly wage was $18.63, her hourly contract was for twenty-five hours per week, although she testified she spent forty-four hours per week working during the school year. She received $1,463 per month for summer months.

Over June and July of 2010 and 2011, Thomas worked for a second employer, Quality Drive Away (“QDA”), driving new school buses from Atlanta to other parts of the country. Thomas was paid per job based on mileage and other factors, and over June and July 2011, she worked eleven jobs, totaling income of $8,596.51 according to her tax form from QDA; the last three jobs occurred in the thirteen-week period of July 20, 2011, to October 11, 2011, and the ALJ found she was paid $549.80, $601.30, and $576.43 for a total of $1,658.43 (the actual total wages for those jobs is disputed between the testimony provided by Thomas and the almost indecipherable pay slips). Thomas's last job for QDA ended on July 30, 2011, and she returned to her regular school-year job at Fulton County on an unspecified date thereafter.

The parties stipulated that Thomas suffered a compensable injury on October 19, 2011, and the 13–week period prior to her injury was July 20, 2011, to October 19, 2011, of which she worked approximately 11.5 weeks (beginning some time after July 30, 2011, which was a Saturday and her last day working for QDA). Although Fulton County accepted her claim, the parties disputed the correct calculation of Thomas's average weekly wage.

Thomas contended that her average weekly wage should be calculated pursuant to the method listed in OCGA § 34–9–260(1), which is 1/13th of the total sum of the claimant's wages earned at both Fulton County and QDA during the 13–week period immediately preceding the injury—Thomas claimed this amount was $593.32. On the other hand, Fulton County argued to the ALJ that because Thomas had not worked during “substantially the whole” of the 13–week period, Thomas's average weekly wage should be calculated pursuant to the method in OCGA § 34–9–260(3), which is based on the “fulltime weekly wage” of the claimant, and that her wages from QDA should not be included in that calculation because it was not concurrent employment.

At the hearing, Fulton County's workers' compensation specialist testified before the ALJ that she calculated Thomas's “fulltime weekly wage” by applying her hourly pay rate of $18.63 per hour to her contract requirement of 25 hours per week, which resulted in an average weekly wage of $465.75.3

The ALJ first concluded that Thomas's work for QDA was concurrent work for which her average weekly wage had to be calculated, and there was no requirement that the jobs for QDA be performed contemporaneous to the work for Fulton County in order to qualify as concurrent work. The ALJ found that OCGA § 34–9–260(1) applied in this instance, so the formula for determining Thomas's average weekly wage was 1/13th of the total earnings for the immediately preceding 13–week period. The ALJ found that the weekly wage for Thomas for the Fulton County job was $465.75, totaling $6,054.75 for the 13–week period preceding the injury, and added to that total $1,658.43 for Thomas's work for QDA that occurred during the period; 1/13th of the $7,713.18 total resulted in an average weekly wage of $593.32.

Fulton County appealed, and the Board calculated an average weekly wage of $337.62 under OCGA § 34–9–260(1). First, the Board determined that the ALJ correctly found that Thomas's work with QDA was similar to her work with Fulton County, but the jobs were not performed simultaneously when her injury occurred, and therefore, the ALJ had erred by finding the employment concurrent. Next, the Board determined that the ALJ's finding as to Thomas's weekly wage for her employment for the preceding 13 weeks was incorrect, and it instead calculated an average weekly wage of $337.62 by multiplying by 12 her summer monthly pay from Fulton County of $1,463 and then dividing that number by 52.

One Board member dissented from this opinion, and she stated that OCGA § 34–9–260(3) was the appropriate method for calculating Thomas's average weekly wage because Thomas had not “worked” for Fulton County for the preceding 13 weeks. She also concluded that the Board majority had conflated the notion that Fulton County paid wages to Thomas for 13 weeks with the plain language of the statute, which required a showing that the claimant “worked” during the 13 weeks.

Thomas appealed the Board's opinion to the superior court, arguing that her average weekly wage should be calculated to include concurrent employment or that her average weekly wage should be calculated based on her fulltime weekly wage under OCGA § 34–9–260(3). The superior court affirmed the Board's decision without explanation.

Thomas first argues that the superior court erred by affirming the Board.4 Based on the plain language of OCGA § 34–9–260, we agree.

OCGA § 34–9–260 provides that[ ] the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined ... as follows: (1)
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2 cases
  • State v. Kazmierczak
    • United States
    • United States Court of Appeals (Georgia)
    • March 30, 2015
  • Fulton Cnty. Bd. of Educ. v. Thomas
    • United States
    • Supreme Court of Georgia
    • May 23, 2016
    ...“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 aff......

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