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Thorpe v. Ted Bowling Construction: How to Determine Prevailing Wage for Atlanta Workers’ Compensation Benefits

On Behalf of | May 18, 2012 | Georgia Workers' Compensation |

When you suffer a work-related injury in Atlanta, you may be entitled to workers’ compensation benefits. The question then becomes, how will your average weekly wage be determined for benefits purposes?Because this determination is not as straightforward as you may think, it is important to have an experienced Atlanta workers’ compensation attorney advocating for you.

Recently, the Virginia courts clarified what is required to determine an injured employee’s average weekly wage for an award of workers’ compensation benefits. Thorpe v. Ted Bowling Constr., et al., No. 110349 (Virg. May 4, 2012). Matthew Thorpe (Thorpe) was an entrepreneur who owned a self storage facility and a residential porch railing installation company. Thorpe employed Eric McMahon (McMahon) at this installation company called Alson’s Ornamental Iron.

This case arose when a customer of Thorpe’s, John Clary (Clary), offered to pay Thorpe and McMahon to assist him on one of his jobs. Clary was contracted by Ted Bowling Construction (defendant) to install a metal roof and siding on an industrial building. Clary offered Thorpe and McMahon $5,000 to complete the job as soon as possible; which he expected to occur within a week. Additionally, Clary specifically stated that he would pay Thrope and McMahon the stipulated amount only when the job was completed. This agreement was memorialized when Clary wrote “5000” on the top of a shop table with soapstone.

Clary knew that Thorpe and McMahon had never worked with the installation of metal roofing and siding; however, because he knew the railing installation business was slow he offered them the job. Clary provided the two men with instructions and supervision, as well as all of the tools and materials they would need in order to complete the requisite installation. The roof where the work was being performed by Thorpe and McMahon has skylight windows which they had noticed immediately upon beginning their work.

Thorpe and McMahon had worked on this project for four days. On the fourth day, while installing the metal sheets on the roof of the industrial building, Thorpe fell through one of the skylights on the roof. Because of this fall through the skylight, the impact of his landing caused him to die immediately. Thorpe left his widow who brought a lawsuit against the defendant seeking workers’ compensation benefits.

The deputy commissioner responsible for hearing this workers’ compensation claim, began wo hear the evidence over a year and a half after Thorpe’s death. The main issue in this claim was surrounding the terms and conditions of the employment agreement between Clary, Thorpe and McMahon. This commissioner was unable to find Clary, as he had “disappeared” after the death of Thorpe. The only remaining witness to the agreement and the circumstances of Thorpe’s death was McMahon.

Because McMahon and Thorpe had never engaged in this type of work before, they could offer no evidence as to the prevailing wage paid for this type of work. The only thing McMahon could offer was the offer Clary made.

Workers’ compensation benefits are based on the employee’s average weekly wage. This is established by dividing the earnings made in the previous 52 weeks of that employment by 52. Because there was no evidence of Thorpe’s employment for a fixed period of time, there was no time based conclusion that could be utilized in establishing prevailing wage.

Thus, the court indicated that the things to be considered when establishing the prevailing wage for workers compensation benefits are based on the wage paid at the same time and in the same area for similar work.

Because Thorpe was not hired for a long time basis but only for a single project, this court found that it would be unfair to provide his widow with continuing benefit payments. Therefore, she received only $48 a week for 500 weeks.

If you have been injured on the job, contact your Georgia Worker’s Compensation Attorneys at J. Franklin Burns, P.C. to schedule a free appointment. Call 404-920-4708 .