FIFTH DIVISION

MCFADDEN, P. J.,

MCMILLIAN and GOSS, 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

June 24, 2019

In the Court of Appeals of Georgia

A19A0617. WARE COUNTY BOARD OF EDUCATION et al. v.

TAFT.

GS-022

GOSS, Judge.

We granted this discretionary appeal by the Ware County Board of Education

(the “BOE”).1 The BOE appeals from a superior court order affirming a decision by

the Appellate Division of the State Board of Workers’ Compensation (the “Appellate

Division”), which had reversed an Administrative Law Judge’s (“ALJ”) decision as

to the calculation of employee Roy Taft’s average weekly wage, which underlies his

disability benefits award. The BOE contends that OCGA § 34-9-260 was misapplied

in the determination of Taft’s average weekly wage. Finding no error, we affirm.

1 The other appellants in the instant case are Georgia Education Workers’

Compensation Trust Fund and Georgia Administrative Services.
Taft is a BOE employee who works a school-year schedule of 220 days, but

whose pay is pro-rated and spread over a full calendar year to account for periods

during which he did not work because of school breaks or holidays. As will be

explained more fully below, the issue presented is whether Taft’s disability benefits

should be calculated based upon the actual pro-rated pay he receives or should instead

include the portion of his pay that he has worked to earn, but that is deferred from

each pay period and paid out over the full year.

In reviewing a workers’ compensation award, this Court must construe

the evidence in the light most favorable to the party prevailing before

the appellate division. The findings of the State Board of Workers’

Compensation, when supported by any evidence, are conclusive and

binding, and neither the superior court nor this Court may substitute

itself as a factfinding body in lieu of the State Board.

(Footnotes omitted.) Laurens County Bd. of Ed. v. Dewberry, 296 Ga. App. 204, 205-

206 (674 SE2d 73) (2009). “[W]e review de novo erroneous applications of law to

undisputed facts, as well as decisions based on erroneous theories of law.” (Citation

and punctuation omitted.) Sanchez v. Carter, 343 Ga. App. 187, 187 (806 SE2d 638)

(2017).

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Taft had worked for the BOE as a custodian for 10 years when, on June 15,

2016, he slipped on waxed floors and injured his right shoulder. Taft filed notices of

claim for temporary total disability benefits with the State Board of Workers

Compensation. The parties agreed that this was an accepted claim. Taft began

receiving total temporary disability benefits of $207.61 per week, based on an

average weekly gross wage of $311.39, but sought additional total temporary

disability benefits, contending that the calculation of his average weekly wage was

incorrect. 

A hearing was held before an ALJ to determine Taft’s correct average weekly

wage. The Appellate Division accepted the ALJ’s fact findings that Taft was a BOE

employee, that there were 220 work days during the school year, that Taft’s contract

required that he be paid $9.20 per hour for a 40-hour work week, and that his total

compensation was $16,192.00 disbursed in equal monthly installments of $1,349.33

throughout a 12-month year. The superior court found that the evidence supported

this, and these amounts are not contested on appeal.

The Workers’ Compensation Act provides that temporary total disability

benefits are calculated based upon a determination of an employee’s average weekly

wage under OCGA § 34-9-260. OCGA § 34-9-260 (1) providesin pertinent part that:

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If the injured employee shall have worked in the employment in which

he was working at the time of the injury . . . during substantially the

whole of 13 weeksimmediatelypreceding the injury, his average weekly

wage shall be one-thirteenth of the total amount ofwages earned in such

employment during the 13 weeks[.]

(Emphasis supplied.) See also Rules and Regulations of the State Board of Worker’s

Compensation, Rule 260. In the 13 weeks prior to the accident, Taft actually worked

a total of 59 days or, as he argues in his appellate brief, 11 weeks and 4 days.

Therefore, as the Appellate Division determined, OCGA § 34-9-260 (1) applies

becauseTaft had worked “substantially the whole of 13 weeksimmediately preceding

the injury[.]” Id. 

Pursuant to the Appellate Division’s finding, Taft’s average weekly wage is

calculated at $334.03, based on a calculation of his contractual hourly rate of $9.20,

multiplied by 59 eight-hour days, and divided pursuant to OCGA § 34-9-260 (1) by

13. In other words, the finding under appeal calculates Taft’s average weekly wage

not by what he actually was paid in gross wages per week in the 13 weeks

immediately preceding the injury, but by including the amounts that were deferred

and paid out over the full calendar year. Once average weekly wage is established,

OCGA § 34-9-261 provides that an employee is entitled to receive two-thirds of the

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average weekly wage, up to a set maximum amount. This is the weekly temporary

total disability benefit. Pursuant to the order under appeal, Taft’s temporary total

disability benefit is $222.69. 

In its appeal, by contrast, the BOE argues that Taft’s average weekly wage

should be calculated based upon what he actually was paid during the 13 weeks

immediately preceding the injury. The undisputed fact finding is that he was paid in

equal monthly installments of $1,349.33, or $16,191.96 per year. The yearly amount,

divided by 52 weeks, is $311.38 per week. Thus, the BOE argues, Taft’s average

weekly gross wage is what he actually was paid for the 13 weeks prior to the injury.

The ALJ’s opinion, now reversed, does not make a finding as to the dollar amount of

Taft’s average weekly gross wage, but found that it equated to temporary total

disability of $207.61 per week. 

“[T]he worker’s compensation law is a humanitarian measure to be construed

liberally, and its purpose is to provide compensation for an injured employee in

proportion to his loss of future earnings on account of the injury.” (Citation and

punctuation omitted.) Atlanta Journal &Constitution v. Sims, 200 Ga. App. 236, 237

(407 SE2d 464) (1991), citing St. Paul-Mercury Indemnity Co. v. Idov, 88 Ga. App.

697, 699 (77 SE2d 327) (1953).

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Taft argues that the statutory language “total amount of wages earned” in

OCGA § 34-9-260 (1) means his earnings, for purposes of calculating average weekly

wage, were $334.03 per week for the 59 days he actually worked in the 13-week

period immediately preceding his injury. This is the amount he earned based on his

contractual rate of $9.20 per hour at eight hours per day for 59 days. 

In analyzing the meaning of the phrase “total amount of wages earned” in

OCGA § 34-9-260 (1), we recognize that our Supreme Court has determined that

when considering a statute’s meaning,

we must presume that the General Assembly meant what it said and said

what it meant. To that end, we must afford the statutory text its plain and

ordinary meaning, we must view the statutory text in the context in

which it appears, and we must read the statutory text in its most natural

and reasonable way, as an ordinary speaker of the English language

would.

(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a)

(751 SE2d 337) (2013). While our case law has defined “the term ‘wage’ in OCGA

§ 34-9-260 [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, 200 Ga. App. at 238, the term“earned”

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remains undefined. The evidence shows, as outlined above, that Taft earned $334.03

gross weekly wages by working 40 hours at his contractual hourly rate of $9.20 for

59 days within the 13-week period, but that a portion of those earnings were withheld

and instead later paid on a pro-rated basis over 12 months, so that Taft would not

have pay gaps over the course of a year. It would defy logic to say that Taft had not

earned his contractual rate of pay once he had actually performed the work for which

he was being paid – regardless of when that pay wasreceived. Thus, the only “natural

and reasonable way, as an ordinary speaker of the English language would” read the

statutory term “wages earned” is to focus on when Taft earned the money under his

contract regardless of when he received that money. See Deal, 294 Ga. at 173 (1) (a). 

As our Supreme Court stated, “deprivation of future earnings . . . is measured

by [an employee’s] proved earning capacity. We think the fairest yardstick by which

his compensation to cover hisinjury can be measured is what he was able to earn and

was actually earning when the misfortune came upon him.” (Citation omitted;

emphasis supplied.) Fulton County Bd. of Educ. v. Thomas, 299 Ga. 59, 63 (2) (786

SE2d 628) (2016). Taft “was actually earning” $334.03 average weekly gross pay

when his injury occurred, even though a portion of those earnings was withheld for

payment at later dates. As provided by the plain language of OCGA § 34-9-260 (1),

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Taft’s average weekly wage, based on one-thirteenth of “the total amount of wages

earned” during the relevant 13-week period is $334.03. See United States Fidelity &

Guaranty Co. v. Branch, 178 Ga. App. 853, 853-854 (2) (344 SE2d 714) (1986)

(finding that a year-end bonus, which had been earned but not yet paid, should be

included in an employee’s average weekly wage calculation). We find no error.

Judgment affirmed. McFadden, P. J., and McMillian, J., concur.

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