Effective July 1, 2013, the maximum workers’ compensation rate will increase from $500.00 to $525.00 per week in Georgia. Of course, before payment of any workers’ compensation benefits, the computation of a claimant’s average weekly wage must be performed. A claimant’s workers’ compensation rate is 2/3 of the average weekly wage, not to exceed the maximum rate for the claimant’s date of accident.
O.C.G.A. § 34-9-260 delineates the three methods for calculating a claimant’s average weekly wage and the basis for each. The first and preferred method should be used when a claimant has worked substantially the whole of 13 weeks preceding his injury. Wages for the week of the accident are not included in the 13 weeks. The total wages are added and then divided by 13 to arrive at the claimant’s average weekly wage.
The Court of Appeals held 11 weeks does not constitute substantially the whole of 13 weeks.American Fire and Casualty Company v. Davidson. 116 Ga. App.255, 157 S.E.2d 55 (1967).
If your claimant has not worked for 13 weeks immediately preceding the injury, you will need to use the second method for calculating average weekly wage.
The second method for computing average weekly wage is using 13 weeks of a similarly situated employee. This will need to be an employee who performs similar job duties as the claimant and is paid at a similar rate. Preferably, it will be an employee who has the same job title as the claimant.
If neither of the first two methods are possible, you must use the full-time weekly wage. This involves a multiplication of the hourly rate paid to the claimant under the contract of hire by the number of hours he was normally scheduled to work in a full-time work week. Under Rule 260(b), it is assumed that a normal work week is five days, that a normal work day is eight hours and the employee’s daily wage is 1/5 of the weekly pay.
Board Rule 260(a) lists other elements to include when computing a claimant’s average weekly wage. It states that salary, hourly pay, tips, bonuses, the reasonable value of food, housing and other benefits furnished by the employer without charge to the employee should all be included in the average weekly wage calculation. These additional items are included because they constitute a financial benefit to the employee and are capable of pecuniary calculation.
A WC-6 must be completed and filed with the Board when a claimant’s average weekly wage results in a temporary total disability (TTD) or temporary partial disability (TPD) rate less than that of the maximum for the date of injury. The form must also be provided upon written request from the claimant and/or his counsel of record. You can file the WC-6, along with the WC-1, at the inception of the claim, or you can file it once a claimant becomes entitled to income benefits.
In order to avoid confusion, potential underpayment and the possibility for penalties later in the claim, it is best to perform the computation of an employee’s average weekly wage and complete the WC-6 at the inception of a claim, even if the employee is not immediately entitled to any indemnity benefits.
It is also important to consider whether the claimant has a second or third job in addition to working for the insured. Under Board Rule 260(c), the wages paid by all similar concurrent employers shall be included in calculating a claimant’s average weekly wage. As far as what concurrent employment is considered similar, that is determined on a case
by case basis.
ABOUT THE AUTHOR
Ann Joiner is an attorney with Swift, Currie, McGhee & Hiers, LLP. She may be reached at 404-888-6210 or by email. Based on more than 50 years of representing clients in Georgia and throughout the country, Swift Currie has evolved into a law firm capable of handling all areas of civil law and litigation. Swift Currie possesses the resources and abilities to tackle the most complex legal problems, while at the same time, providing its clients with individualized, prompt and cost-effective service.
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