THOMAS v. FULTON COUNTY BOARD OF EDUCATION et al.
A14A2057
Court of Appeals of Georgia
March 30, 2015
331 Ga. App. 828 | 771 SE2d 482
DOYLE, Presiding Judge.
D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellant. Dupree & Kimbrough, Hylton B. Dupree, Jr., Blake R. Carl, for appellee.
D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellant.
Dupree & Kimbrough, Hylton B. Dupree, Jr., Blake R. Carl, for appellee.
THOMAS v. FULTON COUNTY BOARD OF EDUCATION et al.
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
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,
Thomas contended that her average weekly wage should be calculated pursuant to the method listed in
At the hearing, Fulton County‘s workers’ compensation specialist testified before the ALJ that she calculated Thomas‘s “full-time 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
Fulton County appealed, and the Board calculated an average weekly wage of $337.62 under
One Board member dissented from this opinion, and she stated that
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 full-time weekly wage under
Thomas first argues that the superior court erred by affirming the Board.4 Based on the plain language of
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) If the injured employee shall have worked in the employment in which [s]he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, h[er] average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks; (2) If the injured employee shall not have worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding paragraph; (3) If either of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wage of the injured employee shall be used.5 OCGA § 34-9-260
“Employment . . . means the type or kind of employment, such as that of janitor, baker, truck driver, etc. It refers to the particular calling or kind of employment in which claimant was engaged at the time of his injury.”6 When Thomas was injured, she was working as a bus driver for Fulton County. She was working as a bus driver for substantially the whole of the 13 weeks immediately preceding her injury on October 19, 2011, because she worked as a bus driver for both QDA and Fulton County during that time.
weeks immediately preceding her injury — approximately 11.5 weeks with Fulton County and 1.5 weeks with QDA.
While this is slightly different than the “concurrent similar employment doctrine” enunciated in St. Paul-Mercury Indem. Co. v. Idov,7 in that the claimant is not rotating back and forth between employers during the 13-week period, there is nothing in our case law that so narrowly defines “concurrent”8 as the Board did in this case, which construction is not “in keeping with the liberal construction awarded uniformly to the” Workers’ Compensation Act.9 When she was injured, Thomas had worked for Fulton County for many years and for the previous two summers for QDA, and there is nothing in the record to support a finding that she would not have done so the next summer. Thus, Thomas‘s employment with the two entities was concurrent with respect to the calendar year.
Where an employee is working for several different employers and is injured, in order that he may be reasonably compensated for the loss of his earning powers, his total wages must be taken into consideration. Any other construction of the statute would result in great injustice and lead to absurdities.10
Thus, the superior court erred by affirming the Board‘s erroneous application of
That being said, while the ALJ purportedly applied
Accordingly, we reverse the judgment of the superior court and remand the case for further proceedings in accordance with this opinion.
Judgment reversed and case remanded. Miller and Dillard, JJ., concur.