The Georgia Supreme Court recently held that a bus driver’s second job during the summer should be counted as part of her “average weekly wage” in ascertaining how much she should receive in workers’ compensation benefits for an injury suffered in a fall.
In Fulton County Board of Education et al. v. Thomas, the bus driver’s employer never contested that she’d been hurt at work or that the injury was compensable. The issue was how much she should be paid.
In Georgia, the average weekly wage is defined in OCGA 34-9-260, and is properly calculated by looking at what the employee earned in the 13 weeks immediately prior to the injury – whether for the same or another employer – and then dividing that figure by 13. If the employee hasn’t worked the whole 13 weeks, benefits can be determined by looking at the wages of a similar employee in the same employment who worked substantially the whole of those 13 weeks. If neither of those methods is feasible, the full-time weekly wage can be used. Other provisions for more detailed calculations are contained in the statute as well.
For the Thomas case, the appellate court held that wages earned from a second employer in the prior 13-week period should be calculated in determining claimant’s average weekly wage. In these circumstances, the state supreme court affirmed.
According to court records, plaintiff was employed as a school bus driver starting in 2008. Her job required that she drive the bus during the nine-month school year, but not during the district’s summer vacation. However, her salary was paid out over a 12-month stretch.
During summer break 2011, plaintiff supplemented her income by working at a company that helps manufacturers deliver newly-made school buses to the districts that purchase them. These buses are manufactured in the Atlanta area and then transported all over the country.
Plaintiff’s stint with this employer ended July 30th. She returned to her duties with the county school district shortly after that.
Then in October 2011, she was injured on-the-job with the county. She filed a claim for Georgia workers’ compensation benefits. The supreme court record doesn’t detail the nature of the injury, but the school district never disputed it was compensable. Again the only issue was her average weekly wage.
The question for the court was whether her second job fell within the “concurrent similar employment” doctrine that was adopted by the Court of Appeals in the 1953 case of St. Paul-Mercury Indemnity Co. v. Idov. This doctrine holds that a claimant working multiple similar jobs at the time of a compensable injury is entitled to compensation from wages earned from all such jobs, and that they may all be counted in tallying that average weekly wage.
School district attorneys argued that the jobs weren’t similar, but even if they were, they were not concurrent. The State Board of Workers’ Compensation initially concluded this was concurrent similar employment. Then the board’s appellate division reversed, finding that the employment was similar, but it wasn’t concurrent because she’d ended the other job before she was injured. The superior court affirmed the board’s decision, but then the appeals court reversed. The court ruled the bus driver was working substantially the whole of 13 weeks prior to her injury and she had worked for the school district most of that time and for the second employer some of that time. Thus her average weekly wage should include the total amount of the wages she earned 13 weeks immediately before her injury.
The state supreme court affirmed.
For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.
Fulton County Board of Education et al. v. Thomas, May 23, 2016, Georgia Supreme Court
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Poremba v. Southern Nevada Paving – Reopening Workers’ Compensation Claims, April 28, 2016, Atlanta Workers’ Compensation Lawyer Blog