Wе granted Rheem Manufacturing Company’s application for discretionary review of the superior court’s order affirming a decision of the appellate division of the State Boаrd of Workers’ Compensation. This decision upheld a determination by the administrative law judge (ALJ) as to the amount of Nora Jackson’s average weekly wage for purposes of paying hеr workers’ compensation benefits. Because there was no evidence to suppоrt the ALJ’s finding that there were no “similar employees” in determining Jackson’s average weekly wagе, the superior court erred in not remanding the case for an evi-dentiary hearing on this issue.
OCGA § 34-9-260 provides that:
the average weekly wages of the injured employee at the time of the injury shall be taken as thе basis upon which to*455 compute compensation and shall be determined, subject to limitations as to the maximum and minimum amounts provided for in Code Sections 34-9-261 and 34-9-265, as follows: (1) If the injured employеe shall have worked in the employment in which 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, his avеrage weekly wage shall be one-thirteenth of the total amount of wages earned in such еmployment 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 thе 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 rеasonably and fairly be applied, the full-time weekly wage of the injured employee shall be used.
At the hearing before the ALJ, there was no evidence or testimony presented as to thе average weekly wage. The ALJ stated at the close of the hearing that he was “going to leave the record open only for the submission of additional items to help us all determine whаt the average weekly wage is.” Thereafter, the record shows that Jackson submitted a schedule of weekly earnings and her payroll register and a letter brief to the ALJ stating that there were no similar employees and therefore Jackson was entitled to receive her average weekly wage.
The ALJ found that the evidence was clear that Jackson had not worked during substantially the whole of the 13 weeks prior to her injury. This finding was supported by the evidence and is not contested on appeal. However, the ALJ went on to state that “it is clear that there are no similar employees!; therefore,] the employee’s average weekly wage should be determined by using her hourly wage of $13.23 x 40 hours. . . .”
Rheem appealed, and the matter was considered by the appellate division of the State Board of Workers’ Compensation, which, after hearing argument, adopted the order of the ALJ. Rheem then appealed to the superior court which affirmed the decision of the appellate division. In affirming, the superior court found that Jackson met her burden under OCGA § 34-9-260 simply because she stated that her full-time weekly wage shоuld be used. The superior court found this sufficient to transfer the burden to Rheem to refute Jackson’s сontention as to the correct determination of average weekly wage. Rheem сontends this was an improper shifting of the
“[T]hе burden of proof is on the claimant to establish by sufficient competent evidence the bаsis upon which [her] compensation is to be computed.” Hood v. Jackson,
Although the superior court must affirm a finding of fact by the Workers’ Compensation Board if there is any evidenсe to support it, because there is no evidence to support the finding of fact in this case, the superior court erred in not remanding it to the appellate division for hearing further evidence. See Distrib. Concepts Co. v. Hunt,
Judgment reversed and case remanded.