2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 7 - Compensation Schedules
§ 34-9-260. Basis and Method for Computing Compensation Generally

Universal Citation: GA Code § 34-9-260 (2020)

Except as otherwise provided in this chapter, 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 and shall be determined, subject to limitations as to the maximum and minimum amounts provided for in Code Sections 34-9-261 and 34-9-265, as follows:

  1. 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;
  2. 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;
  3. If either of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wage of the injured employee shall be used;
  4. If compensation is due for a fractional part of the week, the compensation for such fractional part shall be determined by dividing the weekly compensation rate by the number of days employed per week to compute the amount due for each day;
  5. If the injured employee is a volunteer firefighter included under this chapter for volunteer fire-fighting services rendered to a county or municipality of this state or a volunteer law enforcement officer included under this chapter for volunteer law enforcement services rendered to a county or municipality of this state, such firefighter's or volunteer law enforcement officer's average weekly wage shall be deemed to be the Georgia average weekly earnings of production workers in manufacturing industries for the immediately preceding calendar year, as published by the Georgia Department of Labor;
  6. The average weekly wage of a member of the Georgia National Guard or State Defense Force serving on state active duty pursuant to an order by the Governor shall be the greater of:
    1. Seven-thirtieths of the monthly pay and allowances of the individual at the time of the injury, computed in accordance with Code Section 38-2-250, adjusted from time to time for appropriated increases in such monthly pay and allowances, excluding longevity increases; or
    2. If the injured member of the Georgia National Guard or the State Defense Force worked at the time of the injury in any employment other than serving as a member of the Georgia National Guard or the State Defense Force, the average weekly wage of the individual in such other employment as determined pursuant to paragraphs (1) through (5) of this Code section or, if such individual worked at the time of the injury for more than one employer, the average combined weekly wage of the individual in such multiple employment as determined pursuant to paragraphs (1) through (5) of this Code section.

(Ga. L. 1920, p. 167, § 2; Ga. L. 1922, p. 185, § 1; Code 1933, § 114-402; Ga. L. 1945, p. 486, § 1; Ga. L. 1981, p. 842, § 2; Ga. L. 1981, p. 1585, § 2; Ga. L. 1984, p. 816, § 2; Ga. L. 1998, p. 264, § 1; Ga. L. 2000, p. 794, § 2.)

Cross references.

- State defense force, § 38-2-50 et seq.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1986, "member" was substituted for "number" in paragraph (6).

Pursuant to Code Section 28-9-5, in 1988, "amount" was substituted for "amounts" near the end of paragraph (1).

Law reviews.

- For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For article surveying developments in Georgia workers' compensation law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 323 (1981). For annual survey of workers' compensation, see 38 Mercer L. Rev. 431 (1986). For annual survey article discussing workers' compensation law, see 52 Mercer L. Rev. 505 (2000). For annual survey on workers' compensation, see 64 Mercer L. Rev. 341 (2012). For annual survey on workers' compensation law, see 66 Mercer L. Rev. 247 (2014). For annual survey of workers' compensation, see 67 Mercer L. Rev. 287 (2015). For annual survey of workers' compensation, see 68 Mercer L. Rev. 333 (2016). For comment on St. Paul-Mercury Indem. Co. v. Idov, 210 Ga. 256, 78 S.E.2d 799 (1953), see 16 Ga. B. J. 457 (1954). For comment on Atlantic Co. v. Moseley, 215 Ga. 530, 111 S.E.2d 239 (1959), see 23 Ga. B. J. 132 (1960).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Injuries Arising Out of and in the Course of Employment
  • Payment of Wages
  • Third Parties
  • Determination of Compensation
  • Procedure
  • Illustrative Cases

General Consideration

Workers' compensation provisions constitutional.

- Georgia's basis of computing workers' compensation does not violate the equal protection clause of U.S. Const., amend. 14, either facially or in the application thereof to blacks or low income segments of the state's employed population. Massey v. Thiokol Chem. Corp., 368 F. Supp. 668 (S.D. Ga. 1973).

Nature of right to compensation.

- Right to statutory compensation is part of the compensation of the employee for services rendered. Continental Cas. Co. v. Haynie, 51 Ga. App. 650, 181 S.E. 126 (1935), aff'd, 182 Ga. 608, 186 S.E. 683 (1936).

Limitation on recovery.

- The workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) puts a limit upon the amount that may be recovered for injuries to or the death of one of its employees that may be far less than the actual value of the life destroyed. Athens Ry. & Elec. Co. v. Kinney, 160 Ga. 1, 127 S.E. 290 (1925).

Cited in McBrayer v. Columbia Cas. Co., 44 Ga. App. 59, 160 S.E. 556 (1931); Metropolitan Cas. Ins. Co. v. Maloney, 56 Ga. App. 74, 192 S.E. 320 (1937); Maryland Cas. Co. v. Morris, 68 Ga. App. 639, 22 S.E.2d 627 (1942); Fidelity & Cas. Co. v. Windham, 209 Ga. 592, 74 S.E.2d 835 (1953); St. Paul Mercury Indem. Co. v. Idov, 210 Ga. 256, 78 S.E.2d 799 (1953); Bennett v. Rewis, 212 Ga. 800, 96 S.E.2d 257 (1957); Atlanta Million Coop. Cab Co. v. Wilson-Acomb, 108 Ga. App. 465, 133 S.E.2d 437 (1963); American Fire & Cas. Co. v. Davidson, 116 Ga. App. 255, 157 S.E.2d 55 (1967); Westbrook v. Travelers Ins. Co., 117 Ga. App. 361, 160 S.E.2d 650 (1968); Ferrera v. Fireman's Fund Ins. Co., 138 Ga. App. 797, 227 S.E.2d 443 (1976); United States Asbestos v. Hammock, 140 Ga. App. 378, 231 S.E.2d 792 (1976); Aetna Cas. & Sur. Co. v. Caldwell, 143 Ga. App. 397, 238 S.E.2d 759 (1977); Masterpiece Finishing Co. v. Gallahan, 180 Ga. App. 216, 348 S.E.2d 586 (1986).

Injuries Arising Out of and in the Course of Employment

Terms not synonymous.

- Terms "in course of employment" and "out of employment" are not synonymous; both must concur in order for the case to be compensable. Chadwick v. White Provision Co., 82 Ga. App. 249, 60 S.E.2d 551 (1950).

Injury arising "out of employment."

- Injury arises "out of the employment" if after the event it appears to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence, such as when it is inflicted on an employee who is engaged in the employee's regular employment by an insane fellow employee whose insanity is unknown to the employer. Chadwick v. White Provision Co., 82 Ga. App. 249, 60 S.E.2d 551 (1950).

An accident "arises out of employment" when it is apparent to the rational mind, upon a consideration of all the circumstances, that there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. General Accident, Fire & Life Ins. Co. v. Sturgis, 136 Ga. App. 260, 221 S.E.2d 51 (1975).

Employee found dead in expected place.

- Employee is aided in the employee's burden by the well-established presumption that when an employee is found dead in a place where the employee might reasonably have been expected to be in the performance of the employee's duties, it is presumed that the death arose out of the employee's employment. General Accident, Fire & Life Ins. Co. v. Sturgis, 136 Ga. App. 260, 221 S.E.2d 51 (1975).

Employee becoming ill on job and dying later in hospital.

- Presumption that death arose from employment applied when an employee, although the employee did not actually die on the job, became ill and comatose on the job and remained unconscious until the employee died three days later in the hospital. General Accident, Fire & Life Ins. Co. v. Sturgis, 136 Ga. App. 260, 221 S.E.2d 51 (1975).

Injury arising "in the course of employment."

- Injury arises "in the course of employment" when it occurs while the worker is doing the duty which the worker is employed to perform. Chadwick v. White Provision Co., 82 Ga. App. 249, 60 S.E.2d 551 (1950).

Concurrent similar work doctrine.

- Concurrent similar employment doctrine is applied only when the accident arises out of and in the course of the employment while the employee is engaged for an employer subject to these provisions, and the employee's concurrent work must be similar in character to the work in the course of which the accident was sustained. St. Paul Mercury Indem. Co. v. Idov, 88 Ga. App. 697, 77 S.E.2d 327, cert. dismissed, 210 Ga. 256, 78 S.E.2d 799 (1953).

Payment of Wages

Paying wages necessary to bring one within provisions.

- While the paying of wages is not necessary to render one a master, paying is necessary to bring one within the workers' compensation provisions. The entire workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) contemplates that the compensation of the injured employee shall be fixed in proportion to the employee's wages as applied to the particular injury. Georgia Ry. & Power Co. v. Middlebrooks, 34 Ga. App. 156, 128 S.E. 777, cert. denied, 34 Ga. App. 836 (1925).

Payment of wages, although not necessary to render one a master, is necessary to bring one within the workers' compensation provisions, which contemplate that compensation shall be fixed in proportion to the employee's wages as applied to the particular injury. Atlantic Co. v. Moseley, 215 Ga. 530, 111 S.E.2d 239 (1959), for comment, see 23 Ga. B.J. 132 (1960).

"Wage" means payment by employer to 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, 407 S.E.2d 464 (1991).

Tips are considered as a portion of the remuneration an employee receives for the employee's services. Employers Com. Union Ins. Co. v. Bryant, 130 Ga. App. 596, 203 S.E.2d 896 (1974).

Tips a claimant receives as a part of the claimant's wages are computed with the claimant's salary to determine the compensation to which an employee is entitled. Gulf Ins. Co. v. Williamson, 137 Ga. App. 79, 222 S.E.2d 885 (1975), overruled on other grounds, Burkhart v. Argonaut Insurance Co., 239 Ga. 608, 238 S.E.2d 400 (1977).

Fact that a claimant's tips were not listed on the claimant's W-2 form did not preclude the inclusion of tips in the calculation of the claimant's average weekly wages. Pizza Hut Delivery v. Blackwell, 204 Ga. App. 112, 418 S.E.2d 639 (1992).

School employee's "wages earned" meant gross pay earned rather than wages actually received.

- For purposes of workers' compensation, a school custodian's "wages earned" under O.C.G.A. § 34-9-260(1) consisted of the custodian's actual weekly gross pay earned of $334 for the 13 weeks prior to the accident, even though a portion of those earnings was withheld for payment during the school holidays, and the custodian was actually paid $311 per week for the 13 weeks. Ware County Bd. of Educ. v. Taft, 350 Ga. App. 848, 830 S.E.2d 326 (2019).

Food subsidy properly considered in determining wage.

- Because an employer stipulated that the meal subsidy provided its employee a net economic benefit, the State Board of Workers' Compensation did not err in concluding that such benefit should be included in calculating the employee's average weekly wage; moreover, food furnished to an employee without charge conformed to the definition of the word "wage" because an employee's receipt of such benefits, whether in cash or another form, constituted real economic gain to the employee resulting from the employment. Caremore, Inc./Wooddale Nursing Home v. Hollis, 283 Ga. App. 681, 642 S.E.2d 375 (2007).

Fringe benefits such as an employer's payment of insurance premiums are not encompassed in the term "average weekly wage." Groover v. Johnson Controls World Serv., 241 Ga. App. 791, 527 S.E.2d 639 (2000).

Earnings of peddler not "wages."

- Workers' compensation provisions do not vest in the board, or any director thereof, authority to classify the earnings of a peddler as "wages" so as to extend liability or coverage under the law. Atlantic Co. v. Moseley, 215 Ga. 530, 111 S.E.2d 239 (1959), for comment, see 23 Ga. B.J. 132 (1960).

Federal wage and hour provisions have no bearing upon compensation for injury, except that because of it the employee may have been receiving a different wage. Bituminous Cas. Corp. v. Sapp, 196 Ga. 431, 26 S.E.2d 724, answer conformed to, 69 Ga. App. 669, 26 S.E.2d 726 (1943).

Average weekly wage calculated correctly.

- Award of workers' compensation benefits was upheld because there was some evidence to support the administrative law judge's calculation of the claimant's average weekly wage under O.C.G.A. § 34-9-260(3) based on the claimant's testimony that the claimant was supposed to work from the car wash's opening until its close. Cho Carwash Property, LLC v. Everett, 326 Ga. App. 6, 755 S.E.2d 823 (2014).

Third Parties

Employer not entitled to subrogation to claimant's rights against third person.

- When an employee receives an injury for which compensation is payable under the workers' compensation provisions, and the injury is caused by a third person, neither the employer nor the insurance carrier would be entitled to have the amount of compensation awarded the employee reduced by subtracting therefrom either the total or the net amount of the sum received by the employee in the settlement of a suit against the third person for damages for personal injury. American Mut. Liab. Ins. Co. v. Wigley, 179 Ga. 764, 177 S.E. 568, answer conformed to, 50 Ga. App. 258, 177 S.E. 815 (1934).

Employer liable to pay compensation was not entitled to a subrogation of the claimant's rights against a railroad company, and was not entitled to have any of the sum collected by the claimant from the railroad company in a settlement set off against the amount of compensation awarded. Lumbermen's Mut. Cas. Co. v. Babb, 67 Ga. App. 161, 19 S.E.2d 550 (1942).

Georgia law does not permit subrogation in workers' compensation cases. Butler v. Super Valu Stores, Inc., 633 F. Supp. 1164 (N.D. Ga. 1986).

Third-party tortfeasor may recover setoff of workers' compensation benefits paid by employer if the employer's negligence contributed to the employee's injury. Butler v. Super Valu Stores, Inc., 633 F. Supp. 1164 (N.D. Ga. 1986).

Determination of Compensation

1. Cases Decided Prior to 1945 Amendment

Regular wage on date of accident.

- Compensation of an injured person shall be computed on the basis of the regular wage received by the employee on the date of the accident. Georgia Power Co. v. McCook, 48 Ga. App. 138, 172 S.E. 78 (1933); New Amsterdam Cas. Co. v. Davis, 67 Ga. App. 518, 21 S.E.2d 256 (1942); Lumbermens Mut. Cas. Co. v. Cook, 69 Ga. App. 131, 25 S.E.2d 67 (1943).

Prior to 1945 amendment to this section, the regular wage received by the employee on the date of the accident was the basis upon which compensation had to be computed, and there was no authorization for using an average weekly wage. Googe v. United States Fid. & Guar. Co., 63 Ga. App. 678, 11 S.E.2d 803 (1940).

Definition of "regular wage" does not involve continuity of employment, but regularity of wage. Aetna Cas. & Sur. Co. v. Prather, 59 Ga. App. 797, 2 S.E.2d 115 (1939).

Regular wage computed upon basis of 40-hour work week.

- When claimant was ready at all times to work during a week, and at 75 per hour for a period weekly not to exceed 40 hours, unless prevented from so doing by the weather or lack of material, the wage upon which the claimant's compensation would be computed was $30.00, despite the fact that for a period of 11 months prior to the accident the claimant made an average earning of only $19.03 per week. Googe v. United States Fid. & Guar. Co., 63 Ga. App. 678, 11 S.E.2d 803 (1940).

If employee works fractional part of week, regular daily wage multiplied by six workdays.

- Under the former provisions, providing that the compensation of an injured person under the workers' compensation provisions should be computed on the basis of the "regular wage received by the employee on the date of the accident," when an employee had for ten months before the accident worked only three days per week, at $5.00 per day, the employee's "regular wage" was $5.00 per day, and to obtain a weekly basis the employee's daily wage would be multiplied by six, the number of workdays per week, rather than by three. Carter v. Ocean Accident & Guarantee Corp., 190 Ga. 857, 11 S.E.2d 16 (1940).

Payment for operating expenses of automobile counted as salary.

- When the claimant-salesperson at the time of the injury received from the claimant's employer a salary of $100.00 per month, plus $15.00 as operating expenses for the claimant's automobile, which the claimant used in the discharge of the claimant's duties, this was a payment to the claimant of $115.00 for the services rendered by claimant to the employer, and was all to be counted as salary in determining the amount of compensation. Lumbermen's Mut. Cas. Co. v. Babb, 67 Ga. App. 161, 19 S.E.2d 550 (1942).

Less than one month's earnings in commissions insufficient to support compensation award.

- Award of compensation which is based upon evidence relating solely to the qualifications of the employee as a salesperson, the employee's earnings in commissions during a period of less than one month, and the prospect of an increase in the employee's earnings had the employee lived is without sufficient competent evidence to support it. New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682, 118 S.E. 786 (1923).

For case illustrating applicability of federal wage and hours provisions to determine regular weekly wage, see Bituminous Cas. Corp. v. Sapp, 196 Ga. 431, 26 S.E.2d 724, answer conformed to, 69 Ga. App. 669, 26 S.E.2d 726 (1943).

2. Working in Same Employment

"Employment" defined.

- "Employment" as used in this section meant the type or kind of employment, such as that of janitor, baker, truck driver, etc.; it referred to the particular calling or kind of employment in which the claimant was engaged at the time of claimant's injury. Black v. American & Foreign Ins. Co., 123 Ga. App. 133, 179 S.E.2d 679 (1970).

Application of concurrent similar employment doctrine.

- When the employee had not worked "substantially the whole of 13 weeks" prior to the employee's injury and there was no "similar employee," as required by paragraph (2), under the doctrine of concurrent similar employment, the employee's "full-time weekly wage" included both the full-time wages the employee earned with one employer and the part-time wages earned at another job. O'Kelley v. Hall County Bd. of Educ., 243 Ga. App. 522, 532 S.E.2d 427 (2000).

Paragraph (2) refers to similar employee of same employer.

- Although not explicit, the phrase "a similar employee in the same employment" in O.C.G.A. § 34-9-260(2) refers to a similar employee of the same employer. Richards v. Wilkinson Shaving Co., 198 Ga. App. 45, 400 S.E.2d 344 (1990).

In determining a workers' compensation claimant's average weekly wage, there was no evidence to support an administrative law judge's finding that there were no "similar employees"; thus, the case would be remanded for an evidentiary hearing on this issue. Rheem Mfg. Co. v. Jackson, 254 Ga. App. 454, 562 S.E.2d 524 (2002).

Evidence of the wages earned by similar employees of another employer was admissible and probative as circumstantial evidence of the wages that had been earned by the employer's similar employee, when the employer, whose records had been destroyed in a fire, did not counter the circumstantial evidence by some evidence showing that its similar employee had actually earned wages which would authorize an award of less than the maximum benefits. Richards v. Wilkinson Shaving Co., 198 Ga. App. 45, 400 S.E.2d 344 (1990).

One-thirteenth of wages earned in 13 immediately preceding weeks constitutes average weekly wage.

- Amount of compensation due under the workers' compensation provisions, when the claimant is entitled thereto, is to be calculated upon the average weekly wages of the employee, the average weekly wage being one-thirteenth of the wages earned in the 13 weeks immediately preceding the injury. Atlantic Co. v. Moseley, 215 Ga. 530, 111 S.E.2d 239 (1959), for comment, see 23 Ga. B.J. 132 (1960).

Employee must work substantially 13 full work weeks.

- It must be shown that the employee worked during a calendar period of substantially 13 weeks. But it cannot be said that the employee worked during substantially 13 weeks when the record shows that out of that period there were three weeks in which the employee did not work at all, one week in which the employee worked one day, two weeks in which the employee worked two days each, and so on. New Amsterdam Cas. Co. v. Brown, 81 Ga. App. 790, 60 S.E.2d 245 (1950).

Similar work for two employers.

- Employee who was injured while working as a school bus driver for a county, but who had also worked for another employer as a bus driver for 1.5 weeks of the 13 weeks preceding the employee's injury, worked those 13 weeks in the type of employment during which the employee was injured; under O.C.G.A. § 34-9-260(1), the employee's average weekly wage should have been computed based on the employee's "total amount of wages earned" for the employee's work during the 13 weeks preceding the employee's injury. Thomas v. Fulton County Bd. of Educ., 331 Ga. App. 828, 771 S.E.2d 482 (2015), aff'd, 299 Ga. 59, 786 S.E.2d 628 (2016).

Wages paid by all similar, concurrent employers shall be included in calculating average weekly wages; the amount is not limited to wages earned in covered employment. St. Paul Fire & Marine Ins. Co. v. Walters, 141 Ga. App. 579, 234 S.E.2d 157 (1977).

Fact that total weekly hours worked represent incredibly long working day of no significance.

- When the employee may be said to have been steadily and concurrently engaged in three jobs, the total of which represented one employment, that of retail salesperson, and the sum of the employee's salaries in these three positions constituted the employee's average weekly wages and established the employee's total earning capacity at that time, the mere fact that the total hours worked per week - double the time of the average worker - represent an incredibly long working day has no significance. St. Paul-Mercury Indem. Co. v. Idov, 88 Ga. App. 697, 77 S.E.2d 327, cert. dismissed, 210 Ga. 256, 78 S.E.2d 799 (1953).

When a claimant sustains an employment-related injury, after having worked in that line of employment for substantially the whole of the 13-week period immediately preceding the injury, the total amount of wages earned under O.C.G.A. § 34-9-260(1) must include wages earned by the claimant for work performed for another employer in the same line of employment during the 13 weeks, regardless of the claimant's employment status with that other employer at the time of the injury. Fulton County Board of Education v. Thomas, 299 Ga. 59, 786 S.E.2d 628 (2016).

In applying the concurrent similar employment doctrine, the Georgia Supreme Court views concurrent as indicating that the various jobs were all held within the 13-week period, even if they were not held at the same time nor all held at the time of the injury. Fulton County Board of Education v. Thomas, 299 Ga. 59, 786 S.E.2d 628 (2016).

Income from temporary job with second employer.

- In a workers' compensation case involving a claimant who earned income from a temporary job with a second employer, the wages earned from the second employer during the 13-week period were, under the concurrent similar employment doctrine, to be included in calculating the claimant's average weekly wage under O.C.G.A. § 34-9-260. Fulton County Board of Education v. Thomas, 299 Ga. 59, 786 S.E.2d 628 (2016).

3. Not Working in Same Employment

Employee showing similar employee's wages cannot complain that award not based on own wages.

- When the evidence showed that the claimant did not work in claimant's employment during substantially the whole of 13 weeks immediately preceding the injury, and the claimant personally introduced evidence showing the wages of a similar employee in the same employment, who had worked substantially the whole of the 13 weeks, the claimant cannot complain that the superior court erred in affirming the board's award, basing the claimant's average weekly wages on that of the similar employee as prescribed by paragraph (2) of this section, instead of using the formula prescribed in paragraph (3) of this section. Crowe v. St Paul-Mercury Indem. Co., 88 Ga. App. 482, 76 S.E.2d 848 (1953).

4. Full-time Weekly Wage

Full-time weekly wage used when other formulas inapplicable.

- Since paragraphs (1) and (2) of this section were inapplicable in arriving at the average weekly wage under the provisions of that section, the director had no alternative but to apply the provisions of paragraph (3), so as to use the full-time weekly wage of the injured employee as the employee's average weekly wage; when wages are paid on an hourly basis, the full-time weekly wage is the wage per hour multiplied by the number of hours shown by the evidence to constitute a full-time work week for such employee under the employee's contract of employment. Federated Mut. Implement & Hdwe. Ins. Co. v. Elliott, 88 Ga. App. 266, 76 S.E.2d 568 (1953).

Stipulation by parties not binding.

- Neither the administrative law judge, full board nor superior court were bound by the parties' stipulation that O.C.G.A. § 34-9-260(3) was the applicable statutory provision for determining the average weekly wage. Fran's Escort Serv. v. Strickland, 208 Ga. App. 294, 430 S.E.2d 389 (1993).

Independent contractor who regularly had premiums deducted from the contactor's gross, rather than net, receipts was entitled to full-time wage benefits without deduction of production costs because it was not mandated by definition or otherwise that deductions be made before calculating an independent contractor's wage. Little Suwannee Lumber Co. v. Fitzgerald, 172 Ga. App. 144, 322 S.E.2d 347 (1984).

Procedure

Burden of proof is on the claimant to establish by sufficient competent evidence the basis upon which claimant's compensation is to be computed. Hood v. Jackson, 81 Ga. App. 465, 59 S.E.2d 45 (1950).

Burden of proof in a workers' compensation case is upon the claimant to show that the employee suffered an accidental injury which arose out of and in the course of claimant's employment. General Accident, Fire & Life Ins. Co. v. Sturgis, 136 Ga. App. 260, 221 S.E.2d 51 (1975).

Illegally precluding evidence authorizing contrary result harmful error.

- When an award is based on an erroneous legal theory which precludes the consideration of evidence that would authorize a contrary result, it is harmful error. Insurance Co. of N. Am. v. Schwandt, 151 Ga. App. 842, 261 S.E.2d 755 (1979).

Illustrative Cases

Compensation was based upon average weekly wage which claimant received for several months prior to the date of claimant's injury, without regard to any average based upon a full calendar year, even though claimant followed a practice of working only until claimant had earned $5,000, rather than working a full year. Thomaston Mills, Inc. v. Kierbow, 177 Ga. App. 368, 339 S.E.2d 361 (1985).

Year-end bonus included in computation.

- Minor employee's workers' compensation benefits were properly computed on the basis of the employee's hourly wages and a year-end bonus, even though the bonus was admittedly given for income tax purposes. United States Fid. & Guar. Co. v. Branch, 178 Ga. App. 853, 344 S.E.2d 714 (1986).

Testimony sufficient for award based upon wages of similar employees.

- When the claimant had no knowledge or record of earnings sufficient to form any basis for calculating an award under this section, but there was testimony from other drivers for the cab company the worker worked for, to the effect that for a period of 13 weeks prior to the injury of the claimant they earned from $20.00 to $30.00 per week, this testimony was sufficient under paragraph (2) of that section for an award. Fidelity & Cas. Co. v. Windham, 87 Ga. App. 198, 73 S.E.2d 517 (1952), rev'd on other grounds, 209 Ga. 592, 74 S.E.2d 835 (1953).

Loss of earning capacity on account of partial disability not authorized by evidence.

- When the finding of fact of the hearing director, approved by the board, to the effect that the claimant's average weekly wages were $80.00 prior to the accident, was not authorized by the evidence and the law applicable thereto, but when the claimant's average weekly wages for the period of 13 weeks immediately prior to the accident were in fact $52.02, and when the finding of fact of the hearing director, approved by the board, was authorized under the evidence, to the effect that the claimant had been able to earn as much as $60.00 per week in claimant's employment since recovering from total disability, there was no compensable loss of earning capacity on account of partial disability under the provisions of former Code 1933, § 114-405 (see now O.C.G.A. § 34-9-262). Lumbermen's Mut. Cas. Co. v. Cowart, 81 Ga. App. 423, 59 S.E.2d 15 (1950).

RESEARCH REFERENCES

ALR.

- Right to take rise or fall in wages since date of accident into account in fixing workmen's compensation, 2 A.L.R. 1642; 92 A.L.R. 1188.

Workmen's compensation: civil and criminal consequences of failure to insure, or otherwise secure compensation, 21 A.L.R. 1428.

Workmen's compensation: anticipation of increase in wages of minor as an element in fixing compensation, 21 A.L.R. 1531.

Workmen's compensation: deductions allowable in computing earnings as basis of compensation, 22 A.L.R. 864.

Workmen's compensation: statutory phrase "incapacity for work" or the like, as including inability to obtain work following an injury, 33 A.L.R. 115.

Accident and disability insurance: when insured deemed to be totally and continuously unable to transact all business duties, 37 A.L.R. 151; 39 A.L.R.3d 1026.

Workmen's compensation: rights and remedies where employee was injured by a third person's negligence, 37 A.L.R. 838; 67 A.L.R. 249; 88 A.L.R. 665; 106 A.L.R. 1040.

Workmen's compensation: illness or injury due to artificial temperature as compensable, 41 A.L.R. 1124; 53 A.L.R. 1095; 61 A.L.R. 218.

Tips or gratuities as factor in determining amount of compensation under Workmen's Compensation Act, 75 A.L.R. 1223.

Deduction for lost time in computing wages as basis for workmen's compensation, 82 A.L.R. 889.

Board and lodging as a factor in determining the amount of compensation under Workmen's Compensation Act, 84 A.L.R. 188.

Injured employee's capital interest in business conducted or served by him after injury as affecting amount of his compensation under Workmen's Compensation Act, 88 A.L.R. 633.

Expense money as a factor in computing one's earnings, salary, or compensation as regards his status as an employee within the Workmen's Compensation Act or the amount of compensation under the act in event of his injury or death, 94 A.L.R. 763.

Marriage as terminating right to future payments of workmen's compensation to injured female employee, 96 A.L.R. 976.

Award under Workmen's Compensation Act as bar to or ground for reduction of claim under act of another state, 101 A.L.R. 1445; 150 A.L.R. 431; 169 A.L.R. 1185.

Rate of discount to be considered in computing present value of future earnings or benefits lost on account of death or personal injury, 105 A.L.R. 234.

Basis for computation of compensation in case of employees who have been intermittently but not continuously employed prior to the injury, 112 A.L.R. 1094.

Workmen's compensation: compensation for disfigurement, 116 A.L.R. 712.

Workmen's compensation: crediting employer or insurance carrier with earnings of employee reemployed, or continued in employment, after injury, 175 A.L.R. 725; 84 A.L.R.2d 1108.

Workmen's compensation: crediting employer or insurance carrier with earnings of employee reemployed, or continued in employment, after injury, 84 A.L.R.2d 1108.

Validity and construction of accident insurance policy provision making benefits conditional on disability occurring immediately, or at once, or within specified time of accident, 39 A.L.R.3d 1026.

Workers' compensation: bonus as factor in determining amount of compensation, 84 A.L.R.4th 1055.

Workers' compensation: recovery for carpal tunnel syndrome, 14 A.L.R.5th 1.

Workers' compensation: tips or gratuities as factor in determining amount of compensation, 16 A.L.R.5th 191.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment, 47 A.L.R.5th 801.

Excessiveness of adequacy of damages awarded for injuries to trunk or torso, or internal injuries, 48 A.L.R.5th 129.

Right to workers' compensation for injury suffered by employee while driving employer's vehicle, 28 A.L.R.6th 1.

Right to workers' compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli - compensability under particular circumstances, 39 A.L.R.6th 445.

Right to compensation under state workers' compensation statute for injuries sustained during or as result of horseplay, joking, fooling, or the like, 41 A.L.R.6th 207.

Injury to employee as arising out of or in course of employment for purposes of state workers' compensation statute - effect of employer-provided living quarters, room and board, or the like, 42 A.L.R.6th 61.

Workers' compensation: value of employer-provided room, board, or clothing as factor in determining basis for or calculation of amount of compensation under state workers' compensation statute, 48 A.L.R.6th 387.

Construction and application of re-examination clause of Seventh Amendment, 10 A.L.R.7th 1.

Workers' compensation: value of expenses reimbursed by employer as factor in determining basis for or calculation of amount of compensation under State Workers' Compensation Statute, 63 A.L.R. 6th 187.

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