WARE COUNTY BOARD OF EDUCATION et al.
MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
granted this discretionary appeal by the Ware County Board of
Education (the "BOE"). 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.
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
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 S.E.2d 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 S.E.2d 638) (2017).
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.
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.
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) provides in pertinent part
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 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[.]
(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 because Taft had worked
"substantially the whole of 13 weeks immediately
preceding the injury[.]" Id.
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 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.
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.
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 S.E.2d
464) (1991), ...