Merita Thomas v. Fulton County Board of Education
331 Ga. App. 828
Ga. Ct. App.2015Background
- Thomas was a Fulton County school bus driver (nine months work, salary spread over 12 months) and also drove for Quality Drive Away (QDA) during summers 2010–2011 transporting buses and paid per job.
- She suffered a compensable injury on October 19, 2011; the 13-week period before injury ran July 20–October 19, 2011, during which she worked ~11.5 weeks for Fulton County and ~1.5 weeks for QDA.
- Parties agreed injury compensable but disputed average weekly wage (AWW) calculation under OCGA § 34-9-260.
- Thomas argued AWW should be 1/13 of wages earned during the immediately preceding 13 weeks (OCGA § 34-9-260(1)), including QDA pay, yielding $593.32.
- Fulton County argued Thomas had not worked “substantially the whole” of the 13 weeks so (a) 34-9-260(3) (full-time weekly wage) applied or (b) QDA earnings were not concurrent and should be excluded; the Board majority calculated $337.62; the ALJ had found $593.32.
- Superior court affirmed the Board without explanation; Thomas appealed to Court of Appeals, which reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper method to compute AWW under OCGA § 34-9-260 | Thomas: use §34-9-260(1) — 1/13 of total wages earned in preceding 13 weeks (including QDA) | Fulton County: §34-9-260(3) or exclude QDA because she did not work substantially the whole 13 weeks in that employment | Court: §34-9-260(1) applies because Thomas worked in same type of employment (bus driver) for substantially the whole 13 weeks across employers; Board and superior court erred |
| Whether QDA work qualifies as "employment in which she was working" (concurrent employment) | Thomas: QDA driving is same type of employment and counts as work for another employer under the statute | Fulton County: QDA was not concurrent/simultaneous and should be excluded from AWW calculation | Court: QDA work is the same type of employment and counts; "concurrent" is not limited to simultaneous duty; total wages for the 13 weeks must be considered |
| Whether ALJ’s arithmetic/computation was correct | Thomas: ALJ applied §34-9-260(1) and computed total wages for 13 weeks including QDA | Fulton County: ALJ misapplied statute / Board recalculated differently | Court: ALJ intended §34-9-260(1) but used full-time weekly wage projections rather than actual wages earned during the 13 weeks; calculation was erroneous and remand required |
| Standard of review for Board findings | Thomas: Board misapplied statute and superior court erred in affirming | Fulton County: Board’s decision entitled to deference if supported by any evidence | Court: Although Board findings get deference, statutory text controls; Board majority misread statute and superior court erred in affirming |
Key Cases Cited
- Chambers v. Monroe County Board of Commrs., 328 Ga. App. 403 (confirming deference to Board findings when supported by any evidence)
- Rheem Mfg. Co. v. Jackson, 254 Ga. App. 454 (describing methods for computing average weekly wage)
- Black v. American &c. Ins. Co., 123 Ga. App. 133 (defining "employment" as particular kind of work)
- St. Paul-Mercury Indem. Co. v. Idov, 88 Ga. App. 697 (concurrent similar employment doctrine)