STATE BOARD OF WORKERS' COMPENSATION 270 Peachtree Street, NW Atlanta, Georgia (404) STATEMENT OF THE CASE

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1 Trial STATE BOARD OF WORKERS' COMPENSATION 270 Peachtree Street, NW Atlanta, Georgia (404) A hearing was held on June 11, 2013, to determine the Employee s entitlement to workers compensation benefits. STATEMENT OF THE CASE This is an accepted claim for the October 19, 2011 date of injury. The issue that must be addressed in this award is a dispute regarding calculation of the average weekly wage ( AWW ) which is an unusually complicated issue in this case. The Employee contends that there was concurrent similar employment; the Employer/Self-Insurer contends there was not. The Employee also argues that the defense of this issue was unreasonable and that assessed fees should be awarded, which the Employer/Self-Insurer disputes. Based on the stipulations of the parties, consideration of all admissible evidence and an assessment of the credibility of the witnesses who testified at the trial of the case, I make the following findings of fact and conclusions of law. FINDINGS OF FACT AND CONCLUSIONS OF LAW Due to the stipulations of the parties, there is no issue as to applicability of the Act, the jurisdiction of the Board, venue in Fulton County, coverage as self-insured, employment and notice. The Employee has the burden of proof with regard to the amount of the average weekly wage. Masterpiece Finishing Co. v. Callahan, 180 Ga. App. 216, 348 S.E. 2d 586 (1986). O.C.G.A. Section provides three methods for calculating average weekly wage. The Employer/Self- Insurer calculated an AWW using the third method of AWW calculation, the full time weekly wage. The Employer/Self-Insurer contends the AWW is $ with a TTD rate of $ The Employee is currently being paid indemnity benefits in this amount. The Employee contends that the average weekly wage should be $ and the TTD rate should be $ The Employee was hired by the Employer in 2008 to work as a school bus driver. While she drove a school bus only during the nine month academic year, her wages were paid out over a twelve month period. During the summer, the Employee worked for QDA, a company that transported new school buses from the manufacturer in Atlanta across the country to the school districts that ordered new buses. The Employee worked for QDA in the summer in 2010 and The first issue that must be addressed is whether this employment is concurrent, similar employment. 1. Is the work similar? The Employer/Self-Insurer first argues that this is not similar employment because, although the Employee drove the same type school bus for each job, she was driving a bus over state lines and not transporting children. In each job, the same type and size school bus was driven, and the same skill set for operating a school bus was used. I find that driving a school bus for delivery to a school system was similar employment to a school bus driver who transports children. See O.C.G.A.Section Is the work concurrent?

2 The next issue is whether the employment was concurrent. The Employer/Insurer contends that this work was not concurrent because the Employee did it during the summer when school was not in session. During the thirteen weeks prior to her compensable accident, the Employee in fact did work for QDA. The Employer/Insurer also argue that the work was not concurrent because it was never contemporaneous with her school bus driver work. However, there is no requirement that contemporaneous work occur on the same day. Many workers perform their second job over the weekend, days when they are not scheduled to work for their primary employer. This is work during the summer is akin to an Employee working over the weekend during the academic school year. Also, the Employee was paid for her school system job over a twelve month period. She earned $1,263 per month for twelve months a year from the school system Employer. I find that the work that the Employee performed for QDA in the thirteen weeks prior to the compensable injury was concurrent and similar in character and it should be included in calculating the AWW. See Thomaston Mills, Inc. v. Kierbow, 77 Ga. App 368, 339 S.E. 2d 361 (1985). 3. What did the Employee earn? This dispute does not end with the inclusion of the QDA income in the AWW calculation. Another issue is what the Employee earned working for QDA and whether this was sufficiently proved. The Employee testified that she was paid by this employer in part before the trip in the anticipation that she would have money to pay for gas and tolls and other expenses, and then her second check would come after the bus delivery. The Employee s testimony as to her pay for these jobs differed from the pay card amount. The Employee testified that during the first trip from 7-18 to 7-20 she earned $ net after expenses; however, her pay card reflected $ on its face. The Employee said that the cost of the bond was taken out of that payment, but that QDA paid that bond for her as well as toll costs in a second payment. The Employee testified that during the second trip from 7-22 to 7-26 she earned $ net after expenses. Her pay card reflected $ on its face. The Employee testified that during the third trip from 7-28 to 7-30 she earned $ net after expenses. Her pay card reflected $ The Employee did not provide additional banking documents or other evidence to support her testimony that she earned additional money from these trips. The Employee bears the burden of proof, and I decline to find that she earned more than the amount reflected on the pay cards. I find that the Employee earned the amount reflected on her pay cards working for QDA which is $1, Calculation of Weekly Benefits The compensable accident occurred on October 19, The thirteen week period prior to the injury was from July 20 to October 19. The Employee made three trips for QDA during the thirteen week period preceding the compensable accident earning $1, during that time. The Employer/Insurer contend the third method of calculation should be used because the Employee had not worked thirteen weeks into the academic school year when the injury was sustained. As a result, they argue, the Employee had not worked substantially the whole of thirteen weeks. The Employer/Insurer called the workers compensation specialist who calculated the AWW used in the WC-6. She testified that she used the Employee s salary, the third method of AWW calculation, because the Employee did not work thirteen weeks prior to the injury and so the first method of calculation was inapplicable. She also testified that there is not a similarly situated employee because no other school bus driver worked over the summer so she could not use the second method of calculation. According to this witness, the base salary of a bus driver is $18.63 per hour for working 25 hours per week. The Employee did not dispute this testimony as to hourly wages or hours per week provisions in her contract. Nor

3 does the Employer/Insurer dispute that the Employee was paid $1, per month over a twelve month period, not just the nine month school year. In O Kelley v. Hall County Board of Education, 243 Ga. App. 522, 532 S.E. 2d 427 (2000), the Employee worked food service for the Dari-Spot for five years when she was hired first as a part time temporary then as a permanent cafeteria worker for a school system. Seven weeks after she was hired for the part time school system job, she was injured. The Court of Appeals found that the AWW calculation in this case for the school system job needed to be calculated using the third method, the full time weekly wage rate, because as a new hire the Employee had not worked substantially the whole of thirteen weeks before the injury. The Employee argued that the AWW calculation for the Dari-Spot job needed to be calculated in a different way, using the first method, since the Employee had worked in that part time job for five years. In O Kelley, the ALJ and full board held that the first method should be used for Dari Spot job and the third method used in the school system job as the Employee just started working there, and also switched from a substitute lunchroom worker job to a full time position which was a contract job in the seven weeks she worked there. To do otherwise unfairly diminished the claimant s AWW. The superior court reversed, but the Court of Appeals upheld the Full Board decision that the first method should be used for the job held for years but the third method should be used for the job held for seven weeks. While the Employer/Self-Insurer argues that O Kelley supports their position that the third method contract rate should be used when a school system academic year starts, this case is different in that the Employee has worked for years for the school system, and was paid over a twelve month period. In O Kelley, the Employee had just started to work, and also had gone from a part time to full time position. O Kelley also stands for the proposition that the Employee is able to use both a school system wage as well as a prior job worked over the summer when calculating an AWW, and that the third method is to be used when the other two methods cannot be fairly used. In O Kelley, the school system was using the calculation to unfairly limit the Employee s income, and so the ALJ and Full Board determined the different methods should be used to calculate income from different jobs. The Act specifically provides that O.C.G.A. Section (1) is the preferred method of computing AWW, to be used when an Employee has worked substantially the whole of thirteen weeks. See also KISSIAH, GEORGIA WORKERS COMPENSATION LAW Section 13.06[1]. In this case, the Employee received income wages from the school system, her employer of many years, for the entire thirteen week period. She therefore is entitled to an AWW calculated by using the first method for this Employer, and she is entitled to use her income from her second job to calculate the AWW. I find that the Employee s AWW should be $ I find that the work that the Employee performed for QDA in the thirteen weeks prior to the compensable injury should be included. 5. Assessed Attorney s Fees The Employee has requested an award of 25% added on assessed attorney s fees. I find, however, that there was a very reasonable dispute as to the method of calculating the AWW. The request for assessed attorney s fees is denied.

4 AWARD The Employee s request for an AWW determination of $ is granted. The Employee s request for assessed attorney s fees is denied. IT IS SO ORDERED, this the 03rd day of July, STATE BOARD OF WORKERS' COMPENSATION This order is electronically signed and approved. Meg Hartin ADMINISTRATIVE LAW JUDGE

5 Appeal STATE BOARD OF WORKERS' COMPENSATION 270 Peachtree Street, N.W. Atlanta, GA This appeal by the Employer/Self-Insurer is before the Appellate Division for review of an award by Judge Hartin, dated July 03, No cross-appeal was filed in this case. This appeal was argued orally before the Appellate Division on September 24, 2013, and the parties filed briefs in support of their positions. After a review of the record as a whole and the arguments presented, the Appellate Division now adopts in part, reverses in part, and amends in part the findings of fact, conclusions of law and award of Judge Hartin as its own. FINDINGS OF FACT AND CONCLUSIONS OF LAW At issue at the hearing before the administrative law judge was the proper calculation of the Employee s average weekly wage pursuant to O.C.G.A At the time of the Employee s compensable work injury, she had been employed with the Employer, a county school system, since 2008 as a school bus driver. The Employee drove the school bus during the academic school year consisting of nine months, which excluded the summer months. In 2011, the Employee was paid a salary of $1, per month, which was paid in equal monthly checks over the twelve (12) month calendar year. During the summer months of 2010 and 2011, the Employee worked with a second employer and her job duties included driving new school buses across the country and delivering them to the purchaser. In 2011, the Employee s last assignment with the second employer ended on July 30, On appeal, the Employer/Self-Insurer assert the administrative law judge erred in finding the Employee was engaged in concurrent similar employment with another employer at the time of the injury and thus entitled to an increased average weekly wage. We agree in part, as discussed below. To begin, when an employee works for two separate and distinct employers prior to a work-related injury with one employer, an employee s average weekly wage may be calculated to include the wages from both employers if the work performed by the employee for the other employer is determined to be concurrent similar employment. See O.C.G.A (1); Board Rule 260(c); St. Paul-Mercury Indemnity Company v. Idov, 88 Ga. App. 697 (1953); O Kelley v. Hall County Board of Education, 243 Ga. App. 522 (2000). In order for the concurrent similar employment doctrine to be applicable, the employee is required to prove not necessarily that both jobs were exactly identical but rather, that both jobs were sufficiently similar in nature and concurrent in time. Idov, supra; O Kelley, supra; St. Paul Fire & Marine Insurance Company v. Walters, 141 Ga. App. 579 (1977). Based upon our review of the record as a whole, we find the preponderance of competent and credible evidence establishes the Employee s job as a school bus driver with the Employer and her job with the second employer during the summer of 2011 were similar in nature. In both jobs, the Employee drove, in general, the same type and size school bus, which would require the same skill set to be utilized in the performance of her job duties. We, therefore find no error with the administrative law judge s finding that the Employee s work with the two employers was similar in nature.

6 Next, we must address whether the work with the two employers was concurrent as contemplated under the doctrine. In this case, upon a close review of the record before us, the preponderance of competent and credible evidence establishes the Employee s employment with the second employer ended prior to the work injury. As such, we find the Employee was not employed concurrently with another employer at the time of her work injury. See Idov, supra; O Kelley, supra; Walters, supra. Based on the foregoing, we find that the administrative law judge erred in her award with the finding the Employee s work with the Employer and her work during the summer of 2011 with another employer constituted concurrent employment under the concurrent similar employment doctrine. We therefore reverse. The Employer/Self-Insurer asserts additional enumerations of error and arguments concerning the inclusion and calculation of the Employee s wages with the second employer. Given our conclusion that the Employee was not engaged in concurrent similar employment at the time of her work injury, we find that these enumerations of error are moot and hence we need not address them. The Employer/Self-Insurer also asserted an error regarding the administrative law judge s calculation of the Employee s average weekly wage with the Employer. The Employer/Self-Insurer argues the administrative law judge erred in finding O.C.G.A (1) was the appropriate method for calculating the Employee s average weekly wage. We disagree. In this case, the Employee collects her wages for the academic school year over the course of a twelve (12) month period of time. The Court of Appeals has defined wages, under O.C.G.A , to mean any payment by the employer to the employee for services rendered in the course of employment that constitutes a net economic gain to the employee. Atlanta Journal & Constitution v. Sims, 200 Ga. App. 236 (1991). The Court in Sims noted the purpose of the Georgia workers compensation law was to compensate an employee fully for lost future earnings. Sims, supra; Idov, supra. As we previously have held, therefore, we find that the purpose of the average weekly wage formulations articulated in O.C.G.A is to arrive as fairly and accurately as possible at an estimation of the weekly income an employee reasonably would expect to receive had he/she not been injured. As was determined in Sims, supra, that determination may be more or less than the figure obtained in a strict hourly wage calculation and nevertheless, still comport with the legislative purpose of the statute. Based on the preponderance of competent and credible evidence in this case, therefore, we find no error with the administrative law judge s award finding the Employee s average weekly wage is to be calculated in compliance with O.C.G.A (1). Based on the foregoing, we find the preponderance of competent and credible evidence in the record establishes that the Employee received wages from the Employer for substantially the whole of thirteen (13) weeks prior to the work injury. The Employer/Self-Insurer also argue on appeal the administrative law judge erred by utilizing what appears to be an average monthly wage when determining the average weekly wage of the Employee with the Employer. We agree as it is unclear in the award how the administrative law judge calculated the Employee s average weekly wage and whether she used a monthly wage or average weekly wage. We therefore find that the administrative law judge erred by not making a specific finding of fact in the award as to the average weekly wage with the Employer. See O.C.G.A Based on our review of the record as a whole, we find the preponderance of competent and credible evidence establishes the Employee earned $1, per month with the Employer and multiplying same by twelve (12) months and then dividing by fiftytwo (52) weeks provides an average weekly wage of $337.62, which represents the weekly income the Employee reasonably would have expected to receive had she not been injured. Thus, to the extent that the administrative law judge made findings and conclusions of law inconsistent with our findings and conclusions herein, we reverse, strike and amend her Findings of Fact and Conclusions of Law as necessary to remain consistent and in accordance with our findings and conclusions herein. See generally Bankhead Enterprises v. Beavers, 267 Ga. 506, 480 S.E.2d 840 (1997); Russ v. American Telephone &

7 Telegraph, 228 Ga. App. 858, 493 S.E.2d 46 (1997); Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 473 S.E.2d 166 (1996). Except as stated above, the Appellate Division hereby accepts the findings of the administrative law judge in this matter as such findings are supported by a preponderance of competent and credible evidence contained within the record on review. See O.C.G.A (a). The Appellate Division adopts the conclusions of law of the administrative law judge, as such conclusions reflect an appropriate application of the Act to the findings of fact, except as stated above. AWARD Based upon the foregoing findings of fact and conclusions of law, the Appellate Division vacates the Award section of Judge Hartin s award, dated July 03, 2013, and replaces it as follows: WHEREFORE, based upon the above findings and conclusions, the Employee s request for an average weekly wage of $ is hereby DENIED. We find the preponderance of competent and credible evidence establishes that the Employee s average weekly wage with the Employer is $ The Appellate Division adopts the award s denial of assessed attorney fees as its own. IT IS SO ORDERED, this the 07th day of January, Concurring: Presiding Judge Frank R. McKay. STATE BOARD OF WORKERS' COMPENSATION :rb This order is electronically signed and approved. Harrill L. Dawkins/s. Judge Appellate Division Concurring in part, dissenting in part: Judge Elizabeth D. Gobeil. While I agree with the finding of similar, non-concurrent employment, I have concerns regarding the average weekly wage analysis and hence must respectfully dissent in part. At issue is the application of O.C.G.A to what has become a common scenario among public school employees: employees working only a portion of the year but receiving wages in pro-rated, equal installments throughout the calendar year. In assessing average weekly wage, the statute first directs us to O.C.G.A (1) which applies [i]f the injured employee shall have worked.during substantially the whole of 13 weeks preceding the injury. (Emphasis added.) In the current case, the injured employee did not work substantially the whole of the prior 13 weeks prior to the injury. The Majority nonetheless applies O.C.G.A (1) average weekly wage, emphasizing that the injured worker received weekly wages during the prior 13 weeks effectively correlating that fact to working to fit the facts into O.C.G.A (1).

8 As O.C.G.A (1) only applies when the injured worker has worked substantially the whole of the preceding 13 weeks, I find it inapplicable to the current case. The drafters chose work rather than earnings or payments to prioritize which subsection of O.C.G.A applies. By focusing on periods of payment versus work, the Majority s interpretation strains the plain meaning of the statute and the priority established by O.C.G.A (1)-260(3). Further, the Majority s approach effectively removes the 260(2) and 260(3) methods from ever being available to employees who work a partial year but are compensated throughout the calendar year for that work. The statute s drafters likely did not contemplate the foregoing public school employee scenario when structuring this code section. As a result, the Board is challenged to apply the law in a fair, consistent, and compliant manner unless and until the statute is changed. As the Majority notes, there is fact-finder discretion in determining average weekly wage, with the goal of approximating what the employee would have been paid had she not been injured. (For example, O.C.G.A (3) s preface illustrates this discretion and flexibility by stating: If either of the foregoing cannot reasonably and fairly be applied. (emphasis added).) While acknowledging the foregoing, I find that such flexibility does not extend to allowing us effectively to ignore the clear prerequisite for (1) s application (i.e., that the injured worker must have worked substantially the whole of the 13 weeks preceding the injury). If O.C.G.A (1) does not apply, we must follow the sequential directive of the statute and next consider pursuant to O.C.G.A (2) whether a similarly situated employee exists. In this case, the parties acknowledge that there is no such similarly situated employee. Finding that neither method set forth in O.C.G.A (1) nor 260 (2) apply to the facts of our case, I am compelled to find that the average weekly wage should be determined via O.C.G.A (3). The Majority s approach is commendable in that it results in a fair and consistent manner for determining the average weekly wage of employees falling into this public school employee category. Ultimately, however, I find that while commendable in its result, the Majority s approach is inconsistent with the plain wording of the statute.

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