Court of Appeals defines how to calculate AWW for certain school employees

Written by: James G. Smith, Esq.

In a decision published on June 24, 2019, the Claimant in question was a custodian for Ware County Board of Education for 10 years. He sustained a compensable right shoulder injury and was thereafter paid TTD benefits at the rate of $207.61 per week (per the BOE’s calculations). The dispute in the claim centered around the appropriate computation of his average weekly wage under O.C.G.A. 34-9-260(1).  As is the case with many school employees, including teachers, the Claimant was paid in equal installments over a 12 month period even though he only technically worked 220 days out of the year.

The BOE argued that his AWW should be based upon these equal monthly installments broken down into equal weekly payments over the 13 weeks prior to the accident. In other words, the BOE argued that his AWW should be based upon what he was actually paid over those 13 weeks.  Conversely, the Claimant argued that his AWW should be based upon his contractual hourly rate of $9.20 per hour and the hours he actually worked over the 13 weeks preceding the work accident.  As an aside, it should be noted that he worked a total of 59 eight-hour days, or “11 weeks and 4 days,” and that the parties agreed that this was sufficient to constitute “substantially the whole” of the 13 weeks prior the accident.

The Claimant calculated his AWW by multiplying $9.20 per hour by 59 eight-hour days, and then dividing by 13 weeks, which resulted in a higher AWW than was calculated using the BOE’s method. The Court of Appeals ultimately sided with the Claimant and focused on the use of the word “earned” in O.C.G.A. 34-9-260(1). Specifically: “[the] average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks.” The Court reasoned that the Claimant was “earning” his pay over those 59 days in question, and as such, his AWW should be based upon what he actually “earned” even though his pay was partially deferred to be paid on an annual basis.