20 Apr Concurrent Similar or Dissimilar Employment
Written by: Dale Slemons, Esq.
When an Employee has concurrent employment and it is determined that the concurrent employment is similar, the claimant may be entitled to an increase in average weekly wage and ultimately his workers compensation indemnity benefits based on the combined wages received from both employers. You should be aware of this if you have this scenario presented on one of your claims. Just working for two separate and distinct employers isn’t enough to justify the increase; however, if both employments are found to be similar in character, the increase would be warranted and you must pay the higher rate. This is true even if the second employer isn’t subject to the Workers Compensation Act.
The question then becomes, What constitutes similar employment? In Georgia, we generally look to the similarities of the duties of the employee and not the business of the employers. The courts have found that a hospital clerk and a retail store clerk can be similar. The similarities noted were keeping records, greeting the public on behalf of the employer and other similar duties. Compare that with the case where a printing company employee who held a second job as a courier was found to be dissimilar, even though they were both dealing with delivering documents.
Even further complicating matters, a recent Georgia court of Appeals case also determined that, pursuant to O.C.G.A. 34-9-260(1), the wages earned in all similar employment during the thirteen weeks preceding the injury must be included in the calculation. These types of decisions are very fact specific and allow the Administrative Law Judge some significant leeway in determining the amount of a Claimant’s average weekly wage. As you can see, the threshold to find that a second job constitutes concurrent similar employment isn’t that hard to meet; however it can be difficult to be confident that you are calculating the employee’s benefits correctly. When you are faced with these types of scenarios, it is best to contact your attorney for some clarification and determination.