Archive for May, 2011

Trial Notebook : AWW (Average Weekly Wage)

Tuesday, May 24th, 2011

Average Weekly Wage (Board Rule)

Board Rule 102(E)(3)(c): If the amount of the average weekly wage is in dispute, counsel shall exchange written contentions with respect to their methods of calculation at least ten days prior to the hearing, and shall present the written contentions to the Administrative Law Judge at the  commencement of the hearing.
Economic Benefit of Meal Supplement

Claimant paid only $1.00 per meal at her place of employment when the actual value was anywhere around $3.00 per day or $15.00 a week.  The administrative law judge found that the $15.00 constituted economic benefit “the Workers’ Compensation Act is a humanitarian measure which should be liberally construed to effectuate its purpose.”  Footstar, Inc. v. Stevens, 275 Ga. App.329, 620 S.E.2d 588 (2005).  The board indicated that it was not inclined to give Rule 260(a) technical reading advocated by the employer as it does not serve to effectuate the act’s purpose of providing relief to injured workers.  See Mountainside Medical Center/Pickens Healthcare v. Tanner, 225 Ga. App.722, 484 S.E.2d 706 (1997).

The term wage under O.C.G.A. § 34-9-260 means any payment by the employer to the employee for services rendered in the course of employment that constitutes a net economic gain to the employee.  Atlanta Journal & Constitution v. Sims, 200 Ga. App.236, 470 S.E.2d 464 (1991).  All cited in Caremore, Incorporated/Wooddale Nursing Home et al v. Hollis, 283 Ga. App. 681, 642 S.E.2d 375 (2007).

Wage Calculation

Masterpiece v. Callahan, 180 Ga. App. 216, 348 S.E.2d 586 (1986) (For what consists of 13 weeks)

The holding in Sims, and the application of Board Rule 260(a) regarding the inclusion of non-monetary fringe benefits in the wage calculation, was clarified in the recent case of Groover v. Johnson Controls World Serv., 241 Ga. App. 791, 527 S.E.2d 639 (2000).  In Groover, the claimant contended that his average weekly wage should include a $30 shoe allowance as well as the value of the employer’s contribution to his health insurance.  Relying on Atlanta Journal & Constitution v. Sims, 200 Ga. App. 236, 407 S.E.2d 464 (1991), the ALJ found that the shoe allowance and the insurance benefits were “real economic gain[s]” and included the value of those benefits in the wage computation.  Groover, 241 Ga. App. 791, 527 S.E.2d 639 (2000).  The Board affirmed the inclusion of the $30 shoe allowance, but rejected the inclusion of the employer’s health plan contributions.  Id.  The superior court affirmed the Board, finding that there is a substantial difference between non-cash benefits such as group health plans and cash payments such as tips and mileage reimbursement.  Id.  The basis for the superior court’s distinction was that, unlike cash payments, non-cash fringe benefits “do not result in the receipt of funds which can be spent by the recipient.”  Id.

The Court of Appeals affirmed the superior court in Groover, and excluded the employer’s non-monetary insurance benefit from the calculation of average weekly wage:  “there is simply no legal basis for expanding the statutory term ‘average weekly wage’ to encompass fringe benefits such as an employer’s payment of insurance premiums.”  Id at 793.  Moreover, the language of Board Rule 260 does not change the result.  As the court explained, “even if the current version of Rule 260 were applicable, the result would not change because it is O.C.G.A. § 34-9-260, and not Rule 260, which must control.”  Id. See Atlanta Journal & Constitution v. Sims, 200 Ga. App. 236, 407 S.E.2d 464 (1991); and Groover v. Johnson Controls World Serv., 241 Ga. App. 791, 527 S.E.2d 639 (2000). 

WC-2 Tardy Filing Date

In the case at hand the employer failed to give a full ten days notice before suspending benefits and the administrative law judge, full board, and superior court assessed benefits on for 19 months.  This case hurts very badly and contradicts Russell Morgan Landscape Mgmt. v. Velez-Ochoa, 252 Ga. App.549, 556 S.E.2d 827 (2001) because it does not create the long term penalty.  This is all cited in Reliance Electric Company, et al. v. Brightwell, 284 Ga. App.235, 643 S.E.2d 742 (2007).