Thomaston Mills, Inc. v. Kierbow

Court of Appeals of Georgia

Thomaston Mills, Inc. v. Kierbow

339 S.E.2d 361, 177 Ga. App. 368, 1985 Ga. App. LEXIS 2595

CourtCourt of Appeals of Georgia

DecidedDecember 4, 1985

Docket70593

StatusPublished

Cited by4 cases

This text of 339 S.E.2d 361 (Thomaston Mills, Inc. v. Kierbow) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Thomaston Mills, Inc. v. Kierbow, 339 S.E.2d 361, 177 Ga. App. 368, 1985 Ga. App. LEXIS 2595 (Ga. Ct. App. 1985).

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Opinions

Carley, Judge.

At the time that appellee-claimant in the instant workers’ compensation case was injured, she was already receiving social security benefits. Because appellee could earn only approximately $5,000 per year and still retain her eligibility for the full social security benefits to which she was otherwise entitled, she worked for appellant-employer only until such time as her earnings had reached that threshold amount. When appellee did work, however, she was employed full-time. Consequently, she would generally work full-time over a pe[369]*369riod of several months, after which she would remain unemployed for the balance of the year.

Appellee injured her knee on January 5, 1981. She had been working 40 hours per week since September of 1980 and continued to work until February 12, 1981, when she became disabled. Appellee tried to return to work in September of 1981, but could work only three hours per day. On September 25, 1981, she became totally disabled. The administrative law judge (ALJ) awarded appellee compensation in the amount of $110 per week, or a total of $5,720 per year. According to the ALJ’s award, appellant had argued “that since claimant was employed only part-time when she had her work related injury . . . she should not receive workers’ compensation benefits of more than $5,000 annually because of her ‘as needed contract’ with the employer.” However, the ALJ had “not agree[d] with this argument. The statute governing average weekly wage does not provide for such a limitation.”

The award of the ALJ was made the award of the Full Board. The superior court affirmed the Full Board. Appellant applied to this court for a discretionary appeal from the superior court’s order of affirmance. Appellant’s application was granted in order that we might address the applicability of OCGA § 34-9-260 under such facts as are presented in the instant case.

OCGA § 34-9-260 provides that “the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation. ...” The statute further provides for certain methods by which the “average weekly wages” of an injured employee “shall be determined. . . .” OCGA § 34-9-260 (1) provides: “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 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. . . .” It is this provision that the ALJ used to compute the compensation awarded to appellee. Subsection (2) of OCGA § 34-9-260 is inapplicable here. However, OCGA § 34-9-260 (3) provides that “[i]f either of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wage of the injured employee shall be used. . . .” It is this provision that appellant contends is the applicable authority for calculating appellee’s “average weekly wage.” Apparently, because appellee earned the entirety of her wages by working only during a period of several months, appellant would have her compensation based upon an entirely fictional average “full-time weekly wage” based upon approximately 22 hours of work per week, the average number of hours per week appellee would have been required to work during an entire year in order [370]*370to earn her $5,000.

It is undisputed that appellee worked for appellant from September 1980, until February 12, 1981, a period in excess of 13 weeks. The provisions of OCGA § 34-9-260 (1) are unambiguous. In such circumstances, the employee’s “average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks.” (Emphasis supplied.) Notwithstanding appeals to “policy” considerations, there is nothing in the statute itself which lends support to the assertion that subsection (1) of OCGA § 34-9-260 “cannot reasonably and fairly be applied” in the instant circumstances, which otherwise clearly fall within its ambit. This is a court for the correction of errors of law. As such, we are bound to apply the plain language of pertinent statutes as written. Issues of policy are properly addressed to legislative bodies.

Moreover, OCGA § 34-9-260 (3) specifies that “the full-time weekly wage of the injured employee shall be used.” (Emphasis supplied.) Under appellant’s interpretation, appellee’s compensation would ultimately be based upon the wages that she received for the entire calendar year. There is nothing within the statutory framework of OCGA § 34-9-260 to support this artificial |eap from a week to a year as the appropriate period for determining the applicable wage base. All of the statutory language relates to the weekly wage of an employee. For example, OCGA § 34-9-260 (6) provides as follows: “The average weekly wage of a member of the Georgia National Guard serving on state active duty pursuant to an order by the Governor shall be seven-thirtieths of the monthly pay and allowances of the individual computed in accordance with Code Section 38-2-250.” Thus, the statute clearly contemplates that when injured while on duty, a National Guard member, who ordinarily serves on active duty only on weekends and two weeks during the summer, will be compensated for the injury on the basis of a full week’s wages. Likewise, in the instant case, appellee’s compensation should be based upon the average weekly wage which she had been receiving for several months prior to the date of her injury without regard to any average based upon a full calendar year.

Computation of appellee’s benefits under OCGA ¡§ 34-9-260 (1) is consistent with the overall objectives of our Worker^’ Compensation Act and is not a “windfall.” The ALJ and the Full Board correctly applied the unambiguous provisions of OCGA § 34-9-260 (1) to the instant facts. The superior court affirmed, and so must we.

Judgment affirmed.

Banke, C. J., McMurray, P. J., Sognier, Pope and Benham, JJ., concur. Deen, P. J., Birdsong, P. J., and Beasley, J., dissent.

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Carley, Judge.

At the time that appellee-claimant in the instant workers’ compensation case was injured, she was already receiving social security benefits. Because appellee could earn only approximately $5,000 per year and still retain her eligibility for the full social security benefits to which she was otherwise entitled, she worked for appellant-employer only until such time as her earnings had reached that threshold amount. When appellee did work, however, she was employed full-time. Consequently, she would generally work full-time over a pe[369]*369riod of several months, after which she would remain unemployed for the balance of the year.

Appellee injured her knee on January 5, 1981. She had been working 40 hours per week since September of 1980 and continued to work until February 12, 1981, when she became disabled. Appellee tried to return to work in September of 1981, but could work only three hours per day. On September 25, 1981, she became totally disabled. The administrative law judge (ALJ) awarded appellee compensation in the amount of $110 per week, or a total of $5,720 per year. According to the ALJ’s award, appellant had argued “that since claimant was employed only part-time when she had her work related injury . . . she should not receive workers’ compensation benefits of more than $5,000 annually because of her ‘as needed contract’ with the employer.” However, the ALJ had “not agree[d] with this argument. The statute governing average weekly wage does not provide for such a limitation.”

The award of the ALJ was made the award of the Full Board. The superior court affirmed the Full Board. Appellant applied to this court for a discretionary appeal from the superior court’s order of affirmance. Appellant’s application was granted in order that we might address the applicability of OCGA § 34-9-260 under such facts as are presented in the instant case.

OCGA § 34-9-260 provides that “the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation. ...” The statute further provides for certain methods by which the “average weekly wages” of an injured employee “shall be determined. . . .” OCGA § 34-9-260 (1) provides: “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 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. . . .” It is this provision that the ALJ used to compute the compensation awarded to appellee. Subsection (2) of OCGA § 34-9-260 is inapplicable here. However, OCGA § 34-9-260 (3) provides that “[i]f either of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wage of the injured employee shall be used. . . .” It is this provision that appellant contends is the applicable authority for calculating appellee’s “average weekly wage.” Apparently, because appellee earned the entirety of her wages by working only during a period of several months, appellant would have her compensation based upon an entirely fictional average “full-time weekly wage” based upon approximately 22 hours of work per week, the average number of hours per week appellee would have been required to work during an entire year in order [370]*370to earn her $5,000.

It is undisputed that appellee worked for appellant from September 1980, until February 12, 1981, a period in excess of 13 weeks. The provisions of OCGA § 34-9-260 (1) are unambiguous. In such circumstances, the employee’s “average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks.” (Emphasis supplied.) Notwithstanding appeals to “policy” considerations, there is nothing in the statute itself which lends support to the assertion that subsection (1) of OCGA § 34-9-260 “cannot reasonably and fairly be applied” in the instant circumstances, which otherwise clearly fall within its ambit. This is a court for the correction of errors of law. As such, we are bound to apply the plain language of pertinent statutes as written. Issues of policy are properly addressed to legislative bodies.

Moreover, OCGA § 34-9-260 (3) specifies that “the full-time weekly wage of the injured employee shall be used.” (Emphasis supplied.) Under appellant’s interpretation, appellee’s compensation would ultimately be based upon the wages that she received for the entire calendar year. There is nothing within the statutory framework of OCGA § 34-9-260 to support this artificial |eap from a week to a year as the appropriate period for determining the applicable wage base. All of the statutory language relates to the weekly wage of an employee. For example, OCGA § 34-9-260 (6) provides as follows: “The average weekly wage of a member of the Georgia National Guard serving on state active duty pursuant to an order by the Governor shall be seven-thirtieths of the monthly pay and allowances of the individual computed in accordance with Code Section 38-2-250.” Thus, the statute clearly contemplates that when injured while on duty, a National Guard member, who ordinarily serves on active duty only on weekends and two weeks during the summer, will be compensated for the injury on the basis of a full week’s wages. Likewise, in the instant case, appellee’s compensation should be based upon the average weekly wage which she had been receiving for several months prior to the date of her injury without regard to any average based upon a full calendar year.

Computation of appellee’s benefits under OCGA ¡§ 34-9-260 (1) is consistent with the overall objectives of our Worker^’ Compensation Act and is not a “windfall.” The ALJ and the Full Board correctly applied the unambiguous provisions of OCGA § 34-9-260 (1) to the instant facts. The superior court affirmed, and so must we.

Judgment affirmed.

Banke, C. J., McMurray, P. J., Sognier, Pope and Benham, JJ., concur. Deen, P. J., Birdsong, P. J., and Beasley, J., dissent.

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339 S.E.2d 361, 177 Ga. App. 368, 1985 Ga. App. LEXIS 2595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomaston-mills-inc-v-kierbow-gactapp-1985.

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