May 1, 2015

Georgia Appeals Court Rules State Board of Worker’s Compensation Misapplied the Law Regarding Hurt Worker’s Average Weekly Wage

Thomas v. Fulton County Board of Education, a Georgia woman was employed as a school bus driver nine months of the
year, but her salary was paid over the course of 12 months. In June and
July of 2010 and 2011, the woman also worked a number of additional jobs,
including a position driving school buses to other parts of the nation.
In October 2011, the woman suffered a compensable injury at work. Although
the school district that employed the woman accepted responsibility for
her injury, the parties disagreed regarding the average weekly wage the
worker was entitled to receive.

According to the woman, her average weekly wage should have included the
income she earned from her other bus driving position. Her employer countered
that the woman’s workers’ compensation benefits should be
calculated based solely on the full-time weekly wage she earned while
working for the school district because her other employment was not concurrent.
Following a hearing, an administrative law judge (“ALJ”) ruled
that the worker’s other position was concurrent work under OCGA
§ 34-9-260. The ALJ also found that the statute did not require the positions to
be contemporaneous in order to qualify as concurrent work. As a result,
she was issued an average weekly wage award of nearly $600.

Next, the school board filed an appeal with the State Board of Worker’s
Compensation. The Board overruled the ALJ’s decision and stated
she incorrectly determined the two positions constituted concurrent work
because the worker was not engaged in both positions simultaneously at
the time of her compensable injury. Instead, the Board calculated the
woman’s weekly wage to be about $337. After that, the superior court
affirmed the Board’s decision without explanation, and the worker
filed an appeal with the Court of Appeals of Georgia.

On appeal, the injured woman claimed the Board incorrectly applied the
law when it determined her average weekly wage and found that her second
bus driving position was not concurrent employment. The court first said
the findings of the Board must be upheld if supported by any evidence.
Next, the appellate court stated the Board misinterpreted the plain language
of § 34-9-260 when it calculated the woman’s average weekly
wage. The court found that the woman’s employment was concurrent
with regard to the calendar year, and she should be reasonably compensated
for her loss of income using her total wages. Despite this, the Court
of Appeals also held that the ALJ miscalculated the worker’s average
weekly wage because she considered the woman’s full-time weekly
salary rather than the total amount of wages the driver actually earned
during the preceding 13 weeks. As a result, the Court of Appeals of Georgia
reversed the lower court’s judgment and remanded the
workers’ compensation case for further consideration.

If you were injured at a Georgia workplace, you should discuss your right
to receive benefits with a knowledgeable Atlanta workers’ compensation
lawyer as soon as possible. To schedule a confidential consultation with
a skillful Conyers workers’ compensation attorney today, call the
Law Offices of Nathaniel F. Hansford at (770) 922-3660 or contact us online.

Additional Resources:

Thomas v. Fulton County Board of Education, Ga: Court of Appeals 2015

Photo credit: Seemann, MorgueFile