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O'Kelley v. Hall County Board of Education3/24/2000
P-106
We granted Debbie O'Kelley's application for discretionary review of a superior court order that reversed an award by the Appellate Division of the State Board of Workers' Compensation (the "Board"). At issue is whether the superior court ordered the Board to apply the wrong formula and, thereby, miscalculated O'Kelley's average weekly wage. We conclude that the superior court erred, and we reverse.
The Hall County Board of Education ("Hall County") hired O'Kelley as a substitute lunchroom worker on September 3, 1995, and converted her to a full-time position on October 3, 1995, at a contract rate of $229.85 per week. On October 18, 1995, O'Kelley suffered a compensable on-the-job injury. At the time of this injury, O'Kelley also had part- time employment as a food service worker at Dari-Spot, a job she had held for five years.
Hall County calculated O'Kelley's income benefits by taking the sum of all her wages from both jobs for the 13 weeks prior to the injury and then dividing that figure by 13. See OCGA § 34-9-260 (1). Hall County paid two-thirds of $255.44, or $170.30 per week. After O'Kelley controverted this method of calculating her average weekly wage, an ALJ rejected Hall County's methodology. The ALJ decided that because O'Kelley had only worked for Hall County for seven weeks, OCGA § 34-9- 260 (1) was inapplicable. Instead, the ALJ determined that O'Kelley's average weekly wage should have been calculated by finding the average weekly wage for each of her two jobs and adding them together: $138.75 from Dari-Spot and $229.85 from Hall County for a total of $368.60 per week, or $245.73 in income benefits. The Board agreed with the ALJ's calculations, but the superior court did not.
The court decided that the "wrinkle in this case caused by the fact that Ms. O'Kelley was employed by two employers at the time of her injury, but only for the seven weeks prior to the injury." The court found that the language of the statute required only that O'Kelley have worked in the same kind of job - in this instance food services -- for 13 weeks prior to her injury in order for subsection (1) to apply. Accordingly, the court reversed and directed the Board to recalculate O'Kelley's weekly wage by including all of the wages she earned at the Dari-Spot and all of the wages she earned from Hall County during the 13 weeks immediately prior to the injury, and then dividing that result by 13. O'Kelley appeals.
1. O'Kelley contends that the court erred in reversing the Appellate Division by failing to follow established case law in calculating her average weekly wage and by failing to adhere to the any evidence standard of review.
An award of the State Board is "conclusive and binding as to all questions of fact." OCGA § 34-9-105 (a). Neither the superior court nor this Court has any authority to substitute itself as the fact- finding body in lieu of the Board and such award must be affirmed if there is any evidence to support it. Masterpiece Finishing Co. v. Callahan, 180 Ga. App. 216, 217 (348 SE2d 586) (1986).
Where, as here, an employee was working for two separate and distinct employers prior to an on-the-job accident with one of the employers, Georgia courts look to the doctrine of concurrent similar employment to determine whether the earnings in the employment in which she was not injured should be included in computing the average weekly wage. St. Paul Mercury Indem. v. Idov, 88 Ga. App. 697, 700-701 (77 SE2d 327) (1953). Under that doctrine, where an employee is concurrently employed by different employers at the time of the injury, is doing similar work for each of them, and sustains a compensable injury while worki
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