Cert. applied for.
Workers' compensation. Fulton Superior Court. Before Judge Baxter.
Smith, Wallis & Scott, Joseph W. Brown II, for appellant.
Swift, Currie, McGhee & Hiers, Todd A. Brooks, for appellees.
Doyle, Presiding Judge.
Merita Thomas filed an application for discretionary appeal from a superior court order affirming the State Board of Workers' Compensation (" the Board" ), which had overruled an Administrative Law Judge's (" ALJ" ) award to Thomas. 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.
When reviewing awards in 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.
[331 Ga.App. 829] 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 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 by Thomas and the almost indecipherable pay slips). 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,
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 average weekly wage 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 weekly wage should be calculated pursuant to the method in OCGA § 34-9-260 (3), which is based on the " full-time weekly ...