Fulton County Board of Education v. Thomas
299 Ga. 59
Ga.2016Background
- Merita Thomas worked as a Fulton County school bus driver (nine-month duties; paid over 12 months) and supplemented income by driving buses for Quality Drive Away (QDA) during summer 2011.
- QDA work ran through July 30, 2011; the 13-week statutory period at issue ran July 20–Oct 19, 2011. Thomas resumed County driving in August and was injured on October 19, 2011 while working for the County.
- Thomas claimed workers’ compensation; the County did not dispute compensability but contested calculation of the average weekly wage under OCGA § 34-9-260.
- The ALJ included QDA wages (finding concurrent similar employment); the Board’s Appellate Division excluded them as not “concurrent”; superior court affirmed the Board; the Court of Appeals reversed and this Court affirmed.
- The central legal question was whether wages earned from a second employer during the 13-week lookback must be included when that work was similar in kind but not simultaneous with employment at the time of injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 34-9-260(1) applies where claimant worked in the same line of employment for substantially the whole of the 13 weeks (for same or another employer). | Thomas: She worked as a bus driver for substantially the whole 13 weeks (QDA then County), so subsection (1) applies. | County: QDA employment ended before the injury, so subsection (1) should not apply to QDA wages. | Subsection (1) applies because the statute focuses on the line of employment over the 13-week period, not employer identity. |
| Whether wages from QDA must be included under the concurrent similar employment doctrine when the other job occurred within the 13-week period but not at the injury time. | Thomas: QDA work was similar and occurred within the 13 weeks, so QDA wages qualify as concurrent similar employment and must be included. | County: “Concurrent” means employed simultaneously at injury; QDA ended before injury so its wages should be excluded. | Court: "Concurrent" means held within the 13-week period (concurrence within the lookback), so QDA wages are included. |
| Whether subsections (1) and (2) can be reasonably applied or if subsection (3) (use full-time contract wage) must be used. | Thomas: Inclusion of QDA and County wages yields a fair approximation of earning capacity; no need to use subsection (3). | County: Preferred exclusion of QDA wages which would arguably require resort to subsection (3). | Subsection (1) can be reasonably and fairly applied; subsection (3) not used. |
| Proper scope of "concurrent similar employment" doctrine. | Thomas: Doctrine should cover similar jobs held within the 13-week period, even if not simultaneous at injury. | County: Doctrine requires simultaneous employment at the time of injury. | Court adopts a 13-week "concurrence" test: jobs held within the 13-week period and similar in character are included. |
Key Cases Cited
- St. Paul-Mercury Indemnity Co. v. Idov, 88 Ga. App. 697 (origin of concurrent similar employment doctrine; include all similar-job wages to measure earning capacity)
- Black v. American & Foreign Ins. Co., 123 Ga. App. 133 (employment means the particular calling or kind of work, not the employer)
- Employer’s Ins. of Wausau v. Brown, 147 Ga. App. 866 (applied concurrent similar employment where jobs were sufficiently similar)
- St. Paul Fire & Marine Ins. Co. v. Walters, 141 Ga. App. 579 (applied doctrine where employment types were comparable)
- Owens-Illinois, Inc. v. Lewis, 150 Ga. App. 640 (distinguishes when jobs are not similar enough to qualify)