The importance of accurately calculating the average weekly wage of an injured employee can hardly be overstated. It is used to determine the employee’s compensation rate, and, in turn, the ultimate value of his or her claim. Despite the centrality of this calculation to virtually every workers’ compensation claim, determining the average weekly wage can, in some circumstances, be surprisingly complex. A recent Georgia Supreme Court case, Fulton County Board of Education v. Thomas, 299 Ga. 59 (2016), helps illuminate some of the nuances of this critical aspect of workers’ compensation law. In particular, the case clarifies how concurrent similar employment is to be used in calculating the average weekly wage of an injured employee.
Overview of the Law
In pertinent part, O.C.G.A § 34-9-260 provides, “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].” The above code section makes it clear that wages earned from multiple employers, so long as they are earned from the same type of employment which led to the injury, may be included in the average weekly wage calculation.
The concurrent similar employment doctrine, derived from O.C.G.A § 34-9-260, was first adopted by Georgia in the case St. Paul–Mercury Indemnity Co. v. Idov, 88 Ga.App. 697, 77 (1953). Under that case, “a claimant working multiple similar jobs at the time she sustains a compensable injury is entitled to have her wages earned from all such jobs included in calculating her average weekly wage.” Thomas, 630. The Court in Idov. noted that “The concurrent similar employment doctrine is applied only where the accident arises out of and in the course of the employment while the employee is engaged for an employer subject to the provisions of the Workmen's Compensation Law, and his concurrent work must be similar in character to the work in the course of which the accident was sustained.” Iodov., 730.
Put more simply, where an employee is injured during his employment and in a manner which arises out of his employment, all wages earned from similar employment must be considered in determining his average weekly wage.
Fulton County Board of Education v. Thomas, 299 Ga. 59 (2016)
This recent case provides further clarification of the concurrent similar employment doctrine. The facts showed that the employee, Thomas, worked as a school bus driver for the Fulton County Board of Education. 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. 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, 2011, which was a Saturday and her last day working for QDA). Although Fulton County accepted her claim, the parties disputed the correct calculation of Thomas's average weekly wage.
The central issue in the case was whether subsection (1) of O.C.G.A § 34-9-260, listed above, was applicable to Thomas and whether her wages from QDA were properly included in her average weekly wage. At the administrative stage, the State Board of Workers' Compensation initially concluded that Thomas' employment with QDA constituted “concurrent similar employment,” because it involved the same “type and size” of school bus and “same skill set” as required in her employment with the Board, and because she was employed with QDA for some period within the 13 weeks prior to sustaining the compensable injury.
On appeal, the Board's Appellate Division reversed the ALJ, finding that, while Thomas' employment with QDA was “similar” to her employment with the County, it was not “concurrent.” The Board reasoned that, because Thomas' employment with QDA ended prior to the date she sustained her injury, she “was not employed concurrently with another employer at the time of her work injury.” Accordingly, the Board held that the QDA earnings should not be included in the average weekly wage calculation.
The Court of Appeals subsequently reversed the Board’s decision. The Supreme Court then granted certiorari to review the Court of Appeal’s holding.
In affirming the Court of Appeal’s decision that Thomas’ QDA wages ought to be considered in calculating her average weekly wage, the Supreme Court reasoned that
The use of the term “employment” rather than “employer” as the point of reference for the 13–week period is significant, illuminating the focus on the nature of the work performed rather than the identity of the employer. This principle is reinforced by the phrase “whether for the same or another employer,” which also indicates the significance of the actual work rather than the workplace. Thomas, 631.
Thus, as to the prong requiring that the employment be “similar”, the Supreme Court agreed with the Court of Appeals that including wages from different employers was appropriate so long as the work was of a similar nature and occurred at some time within the 13 week period preceding the accident.
As the prong requiring that the employment be “concurrent” in order to include the relevant wages in the employee’s average weekly wage, the Supreme Court ultimately found that Thomas’ QDA wages fell within the concurrent similar employment doctrine. The Court noted that OCGA § 34–9–260(1) does not actually contain the word “concurrent”, but instead refers to the claimant’s employment during the 13-week period preceding the injury. Although in most cases the concurrent similar employment doctrine applies to situations involving simultaneous employment at the time of the injury, the Court noted that it is not an absolute condition of the doctrine that the employment actually be simultaneous. Rather, the Court held that the doctrine requires a concurrence of similar jobs within the 13-week period.
In accordance with their reasoning, the Court concluded that
where a claimant sustains an employment-related injury, after having worked in that line of employment for substantially the whole of the 13–week period immediately preceding the injury, the “total amount of wages earned” under subsection (1) must include wages earned by the claimant for work performed for another employer in the same line of employment during the 13 weeks, regardless of the claimant's employment status with that other employer at the time of the injury.
The takeaway from this case is that, when deciding whether employment is “concurrent” or not for purposes of calculating the average weekly wage, the wages from each similar job are to be included even if the similar jobs were not held at the same time or even held with that other employer at the time of the injury. When accurately determining the average weekly wage, it is now critical that all wages acquired during the 13-week period prior to the injury from each job similar to that which led to the injury be included, regardless of whether they are literally “concurrent” with each other.