February 08, 2021 BY Robert Freyre
Workers compensation benefits in Georgia are awarded on a weekly basis to compensate an injured worker for lost future earnings resulting from an on the job injury. To establish the amount of weekly compensation an injured worker is entitled to be paid a determination of the employee’s average weekly wage has to be made. In Georgia the primary basis for computing the average weekly wage will, in most cases, be the wages earned by the employee during the thirteen weeks immediately preceding the injury date.
A form WC-6 wage statement listing the injured workers wages for the thirteen weeks preceding the accident must be filed by the Employer/Insurer whenever the weekly benefit paid is less than the maximum temporary total or temporary partial disability benefit provided under O.C.G.A § § 34-9-261 and 34-9-262. A WC-6 wage statement should also be completed when income benefits are commenced via a WC-1 first report of injury or with the filing of a WC-2 form when indemnity benefits are commenced or amended.
It is the injured worker who has the burden of proof relative to the amount of the average weekly wage. Masterpiece Finishing Company v. Callahan, 180 Ga. App. 216 (1986). The injured employee can satisfy the burden by direct or circumstantial evidence. Nevertheless, it is incumbent upon the Employer/Insurer to calculate an accurate average weekly wage so the correct compensation rate can be computed and paid to avoid litigating the issue and the assessment of late penalties and assessed attorney fees. When computing the average weekly wage, do not include the weekly pay period of the accident date since the statute requires the wages earned during the 13 weeks immediately preceding the injury. O.C.G.A § 34-9-260(1).
The Georgia Workers Compensation Act sets three separate and distinct methods for computing an employee’s average weekly wage. The first method noted in O.C.G.A § 34-9-260(1) states in relevant part that 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 employer 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.
The second method for computing the average weekly wage noted in O.C.G.A § 34-9-260(2) states that 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 whole of such 13 weeks shall be used in making the determination under the preceding paragraph. Under the Workers Compensation Act, a similar employee is not necessarily one who has the very same job classification or even the very same pay scale as the injured worker. A similar employee is simply another worker who at least performs a similar type of job for the same employer or another employer. Masterpiece Finishing Co. v. Callahan, 180 Ga. App. 216 (1986); Westbrook v. Travelers Insurance Company, 117 Ga. App. 361 (1968).
The injured worker bears the burden of proving the lack of a similarly situated employee so the third method of calculating the average weekly wage may be used. The employee must present evidence that other co-workers are not similarly situated in terms of the work performed or the pay received. Rheem Mfg. Co. v. Jackson, 254 Ga. App. 454 (2002).
The third method for computing the average weekly wage is noted in O.C.G.A § 34-9-260(3) and states that if either of the two foregoing methods cannot reasonably and fairly be
applied, the full-time weekly wage of the injured employee shall be used. The third method involves taking the hourly wage rate paid to the employee multiplied by the number of hours the employee was normally scheduled to work in a full-time week pursuant to his contract of employment with the employer. Federated Mutual Implement & Hardware Insurance Company v. Elliott, 88 Ga. App. 266 (1953).
If an injured worker did not work for the employer the requisite 13 weeks immediately preceding the date of accident, the first method of computing Claimant’s average weekly wage cannot be used. O.C.G.A § 34-9-260(1).
When the first method of calculation cannot be used, requires usage of the 13-week pre-injury wages of a similar employee working for the same employer to compute the average weekly wage. O.C.G.A § 34-9-260(2) The Georgia Appellate Courts have decided that a similar employee is not necessarily one who has the very same job classification or even the very same pay scale as the injured worker. A similar employee is simply another worker who at least performs a similar type of job for the same employer. Westbrook v. Travelers Insurance Company. A similar job for the purpose of this code section does not mean the exact, identical or same job. The similarity of jobs titles and duties need to be comparable to reasonably and fairly apply the statutory standards of O.C.G.A § 34-9-260(2).
The average weekly wage is based on the employee’s gross earnings rather than net earnings without deducting costs, benefits, taxes or any other expenses. Little Suwanee Lumber Co. v. Fitzgerald, 172 Ga. App. 144 (1984). Georgia Appellate Courts have held the calculation of the average weekly wage should include “any monetary payment or noncash benefit received by the employee in consideration of labor or services performed that constitutes a net economic gain to the employee”. Burkhart v. Argonaut Ins. Co., 239 Ga. 608 (1977), In addition to salary, the computation of wages shall also include overtime, or extra
work, the “value” of meals, lodging, rent, tips, automobile expenses, bonuses or other compensation furnished to and constitutes a financial benefit to the employee which are capable of pecuniary calculation. Board Rule 260(a); Caremore, Inc./Woodhill Nursing Home v. Hollis, 283 Ga. App. 681 (2007); Pizza Hut Delivery v. Blackwell, 2014 Ga. App. 112 (1992); Atlanta Journal & Constitution v. Sims, 200 Ga. App. 236 (1991); Employers Commercial Union Ins. Co. v. Bryant, 130 Ga. App. 596 (1974). However, fringe benefits such as an employer’s payment of employee’s insurance premiums are not encompassed in the term average weekly wage. Groover v. Johnson Controls World Serv. 241 Ga. App. 791 (2000).
In those cases where the employee disputes the calculation of the average weekly wage and the parties are not able to resolve the issue, the remedy is to request a hearing. If the parties are not able to agree to the amount of the average weekly wage, the parties can present their contentions for the appropriate method of computation to the Administrative Law Judge for his/her consideration and ruling.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley