FOURTH DIVISION

DOYLE, P. J.,

MILLER and DILLARD, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

March 30, 2015

In the Court of Appeals of Georgia

A14A2057. THOMAS v. FULTON COUNTY BOARD OF

EDUCATION et al.

DO-102

DOYLE, Presiding Judge.

Merita Thomas filed an application for discretionary appeal from a superior

court order affirming the State Board of Worker’s Compensation (“the Board”),

which had overruled an Administrative Law Judge’s (“ALJ”) award to Thomas.

1

Thomas argues that the superior court erred by affirming the Board’s order because

(1) the Board incorrectly applied OCGA § 34-9-260 when calculating her average

weekly wage; and (2) the Board incorrectly found that her second summer job was

not concurrent employment for purposes of average weekly wage calculation. For the

reasons that follow, we reverse and remand for further proceedings.

1 This Court granted the application in an order dated May 22, 2014. Thomas

timely appealed therefrom. 
When reviewing awardsin workers’ compensation cases, both the

appellate court and the superior court must construe the evidence in the

light most favorable to the party prevailing before the appellate division

of the State Board of Workers’ Compensation. It is axiomatic that the

findings of the State Board of Workers’Compensation, when supported

by any evidence, are conclusive and binding.

2

Viewed in this light, the evidence shows that since 2008, Thomas has worked

as a school bus driver for the Fulton County Board of Education (“Fulton County”).

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

2

(Punctuation omitted.) Chambers v. Monroe County Board of Commrs., 328

Ga. App. 403, 404 (762 SE2d 133) (2014).

2
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 (the actual total wages for those jobs

is disputed between the testimony provided byThomas and the almost indecipherable

pay slips). Thomas’slast 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. 

Thomas contended that her averageweeklywage should be calculated pursuant

to the method listed in OCGA § 34-9-260 (1), which is 1/13th of the total sum of the

claimant’s wages earned at both Fulton County and QDA during the 13-week period

immediately preceding the injury — Thomas claimed this amount was $593.32. On

the other hand, Fulton County argued to the ALJ that because Thomas had not

worked during “substantially the whole” of the 13-week period, Thomas’s average

3
weekly wage should be calculated pursuant to the method in OCGA § 34-9-260 (3),

which is based on the “fulltime weekly wage” of the claimant, and that her wages

from QDA should not be included in that calculation because it was not concurrent

employment. 

At the hearing, Fulton County’s workers’ compensation specialist testified

before the ALJthatshe calculated Thomas’s “fulltime weekly wage” by applying her

hourly pay rate of $18.63 per hour to her contract requirement of 25 hours per week,

which resulted in an average weekly wage $465.75.

3

The ALJfirst concluded that Thomas’s work for QDA was concurrent work for

which her average weekly wage had to be calculated, and there was no requirement

that the jobs for QDA be performed contemporaneous to the work for Fulton County

in order to qualify as concurrent work. The ALJ found that OCGA § 34-9-260 (1)

applied in this instance, so the formula for determining Thomas’s average weekly

wage was 1/13th of the total earnings for the immediately preceding 13-week period.

The ALJ found that the weekly wage for Thomas for the Fulton County job was

$465.75, totaling $6,054.75 for the 13-week period preceding the injury, and added

3 The specialist also testified that no bus driver working for Fulton County

worked the entire thirteen-week period preceding October 19, 2011. 

4
to that total $1,658.43 for Thomas’s work for QDA that occurred during the period;

1/13th of the $7,713.18 total resulted in an average weekly wage of $593.32. 

Fulton County appealed, and the Board calculated an average weekly wage of

$337.62 under OCGA § 34-9-260 (1). First, the Board determined that the ALJ

correctly found that Thomas’s work with QDA was similar to her work with Fulton

County, but the jobs were not performed simultaneously when her injury occurred,

and therefore, the ALJ had erred by finding the employment concurrent. Next, the

Board determined that the ALJ’s finding as to Thomas’s weekly wage for her

employment for the preceding 13 weeks was incorrect, and it instead calculated an

average weekly wage of $337.62 by multiplying by 12 her summer monthly pay from

Fulton County of $1,463.00 and then dividing that number by 52. 

One Board member dissented from this opinion, and she stated that OCGA §

34-9-260 (3) was the appropriate method for calculating Thomas’s average weekly

wage because Thomas had not “worked” for Fulton County for the preceding 13

weeks. She also concluded that the Board majority had conflated the notion that

Fulton County paid wages to Thomas for 13 weeks with the plain language of the

statute, which required a showing that the claimant “worked” during the 13 weeks.

5
Thomas appealed the Board’s opinion to the superior court, arguing that her

average weekly wage should be calculated to include concurrent employment or that

her average weekly wage should be calculated based on her fulltime weekly wage

under OCGA § 34-9-260 (3). The superior court affirmed the Board’s decision

without explanation. 

Thomasfirst arguesthatthe superior court erred by affirming the Board.

4Based

on the plain language of OCGA § 34-9-260, we agree.

OCGA § 34-9-260 provides that[] the average weekly wages of

the injured employee at the time of the injury shall be taken as the basis

upon which to compute compensation and shall be determined . . . as

follows: (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; (2) If the injured employee shall not

have worked in such employment during substantially the whole of 13

weeks immediately preceding the injury, the wages of a similar

employee in the same employment who has worked substantially the

4 For ease of assessment of the statute at issue, we have combined Thomas’s

enumerations of error. To the extent that Fulton County argues that Thomas waived

the issue of concurrent employment, we hold that Thomas did not waive the issue and

made the statements at issue in relation to a different subpart of the statute. 

6
whole of such 13 weeksshall be used in making the determination under

the preceding paragraph; (3) If either of the foregoing methods cannot

reasonably and fairly be applied, the full-time weekly wage of the

injured employee shall be used.

5

“Employment . . . means the type or kind of employment, such as that of

janitor, baker, truck driver, etc. It refers to the particular calling or kind of

employment in which claimant was engaged at the time of hisinjury.”6 When Thomas

was injured, she was working as a bus driver for Fulton County. She was working as

a bus driver for substantially the whole of the 13 weeks immediately preceding her

injury on October 19, 2011, because she worked as a bus driver for both QDA and

Fulton County during the whole time. OCGA § 34-9-260 (1) explicitly contemplates

work “forthe same or another employer” and thus, because Thomas worked those 13

weeks for the same or another employer in the type of employment during which she

wasinjured, her average weeklywage should have been computed based on her “total

5

 (Punctuation omitted.) Rheem Mfg. Co. v. Jackson, 254 Ga. App. 454, 455-

456 (562 SE2d 524) (2002).

6 Black v. American &c. Ins. Co., 123 Ga. App. 133, 135 (2) (179 SE2d 679)

(1970).

7
amount of wages earned” for her work during the 13 weeks immediately preceding

her injury — approximately 11.5 weeks with Fulton County and 1.5 weeks with

QDA. 

While this is slightly different than the “concurrent similar employment

doctrine” enunciated in St. Paul-Mercury Indem. Co. v. Idov,

7

in that the claimant is

not rotating back and forth between employers during the 13-week period, there is

nothing in our case law which so narrowly defines “concurrent”

8

as the Board did so

in this case, which construction is not “in keeping with the liberal construction

awarded uniformly to the” Workers’ Compensation Act.

9 When she was injured,

Thomas had worked for Fulton County for many years and for the previous two

summers for QDA, and there is nothing in the record to support a finding that she

would not have done so the next summer. Thus, Thomas’s employment with the two

entities was concurrent with respect to the calendar year. “Where an employee is

7

 88 Ga. App. 697, 700 (77 SE2d 327) (1953).

8 Meriam-Webster defines concurrent as “1: operating or occurring at the same

time; 2: a: running parallel; 2: b: convergent; specifically: meeting or intersecting in

a point; 3: acting in conjunction; and 4: exercised over the same matter or area by two

different authorities.” 

See http://www.merriam-webster.com/dictionary/concurrent (emphasis in original).

9

Idov, 88 Ga. App. at 700.

8
working for several different employers and is injured, in order that he may be

reasonably compensated for the loss of his earning powers, his total wages must be

taken into consideration. Any other construction of the statute would result in great

injustice and lead to absurdities.”10 Thus, the superior court erred by affirming the

Board’s erroneous application of OCGA § 34-9-260 (1).

That being said, while the ALJ purportedly applied OCGA § 34-9-260 (1), in

reality it appears that her calculations were based on earnings that Thomas did not

have during the 13-week period — the ALJ calculated this total using Thomas’s

“fulltime weekly wage” from Fulton County for the full 13 weeks rather than the

“total amount of wages earned” for the weeks Thomas worked with Fulton County.

Thus, the ALJ’s calculation was erroneous.

Accordingly, we reverse the judgment of the superior court and remand the

case for further proceedings in accordance with this opinion.

Judgment reversed and case remanded. Miller and Dillard, JJ., concur.

10

 Id.

9