Georgia Supreme Court Weighs in on Concurrent Similar Employment

On May 23, 2016, the Georgia Supreme Court issued a decision in the case Fulton County Board of Education v. Thomas, ___ Ga. ______ (May 23, 2016, Case No. S15G1205).  The Court affirmed the decision of the Court of Appeals (Thomas v. Fulton County Board of Education, 331 Ga. App. 828 (2015).

The facts were simple.  Thomas was injured during her job driving buses for the Fulton County Schools.  The 13-week period prior to her injury included the part of the summer, during which she did not work for the county. During the summer, Thomas worked for another company called Quality Drive Away, delivering newly-manufactured school buses.  Although she did not work for the county during the summer, she did received pay on a 12-month basis.

Thomas believed that her 13-week average weekly wage calculations should include her pay from both the county and Quality Drive Away on grounds that the two job should be considered "concurrent similar employment." The county disagreed, noting that while the jobs were similar, they were not concurrent.  The county argued that the jobs were never held at the same time and were, therefore, not concurrent.

The ALJ agreed with Thomas' reasoning, and based the average weekly wage on both jobs. The Board's Appellate Division reversed, agreeing with the employer that the jobs were not concurrent. The Superior Court affirmed, but the Georgia Court of Appeals disagreed, and reversed yet again.  The county appealed to the Georgia Supreme Court which granted certiorari and affirmed.

The Supreme Court reasoned that the plain language of the average weekly wage calculation statute controlled:

(1) 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

O.C.G.A. Sec. 34-9-260(1) (emphasis added).  Because the statute expressly includes the phrase "whether for the same or another employer," the Court ruled that the wages for both employers should be used in the average weekly wage calculations.

This decision includes a helpful and succinct overview of the appellate decisions in this field.  If you would like a copy of the decision, please contact us.