Concurrent Employment & Average Weekly Wage In Georgia Workers’ Compensation

According to the Georgia Supreme Court, its recent decision in Fulton County Board of Education v. Thomas, No. S15G1205 (Ga., May 23, 2016), was a case of first impression.

Under Georgia’s workers’ compensation law, the amount of an injured employee’s weekly benefit is based upon the employee’s “average weekly wage” over the “13-week period” preceding the date of injury.  At issue in this case was whether wages from a second employer for employment early in the “13-week period” were to be included in determining the employee’s “average weekly wage.”

Merita Thomas was employed as a school bus driver for the Fulton County Board of Education (“Board”).  She worked during the nine month school year, but her salary was paid over a twelve month period.

During the summer of 2011, she supplemented her income by working for Quality Drive Away (“QDA”).  That job involved driving newly manufactured school buses from Atlanta to other parts of the country.  Her employment with QDA ended on July 30, 2011, and she resumed driving for the Board when school started a short time later.

Thomas was injured on the job on October 19, 2011, and filed her claim for workers’ compensation benefits.  The Board did not contest whether her injury was compensable.  The only issue was the proper computation of her “average weekly wage” upon which her weekly benefit was calculated.  Specifically, the question was whether her employment with QDA for the first ten days of the 13-week period should be included in the computation.

The Supreme Court began its analysis by examining Georgia Code §34-9-260(1), which provided:

If the injured employee 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 average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks (emphasis added).

According to the court, resolution of this case depended on whether this code section applied and, if so, whether this section provided that Thomas’ QDA wages were to be included in her average weekly wage.  Critical to resolution of these questions was whether Thomas’ employment with QDA fell within the “concurrent similar employment” doctrine.

At the first stage in this proceeding, the administrative law judge determined that Thomas’ employment with QDA involved driving the same kind of vehicles and required the same skills as her employment with the Board.  This constituted “concurrent similar employment” during a portion of the 13 weeks preceding her injury.  The administrative law judge determined that §34-9-260(1) applied and required that Thomas’ QDA wages be included in computing her average weekly wage.

The Board then appealed to the Appellate Division of the State Board of Workers’ Compensation.  The Appellate Division reversed the decision of the administrative law judge, finding that Thomas’ employment with QDA was not “concurrent.”  This was because Thomas was not employed by QDA at the time of her injury.  For this reason, the Appellate Division determined that Thomas’ QDA earnings should not be included in computing her average weekly wage.

Thomas appealed to the Fulton County Superior Court, which affirmed the decision of the Appellate Division.

Thomas then appealed to the Georgia Court of Appeals.  The Court of Appeals reversed the decisions of the Superior Court and the Appellate Division, ruling that Thomas’ QDA wages were to be included in the determination of her average weekly wage.

The Georgia Supreme Court granted certiorari to clarify the proper method for calculating benefits.

The court first stated that the statute required the focus to be on the employment, not the employer.  The undisputed facts showed that Thomas was a school bus driver for both QDA and the Board, for “substantially the whole” 13 weeks preceding her injury.  This meant that §34-9-260(1) applied.

The Supreme Court then looked at the “concurrent similar employment” doctrine.  First it noted that previous cases under the doctrine had always involved workers who were holding more than one job at the time of injury. That is why this was a case of first impression.

The statute itself did not contain the word “concurrent.”  But the doctrine, according to the Supreme Court, was not limited to situations where the employee held more than one job at the time of injury.  Rather, the doctrine, in conjunction with the statute, required a concurrence of similar jobs within the 13-week period preceding the injury.  The date of employment at any similar job did not matter, so long as it fell within the 13-week period.

Therefore Thomas’ employment as a bus driver with QDA was to be included in computing her average weekly wage, even though she was not employed by QDA at the time of her injury.