Heaton Erecting, Inc. v. Gierum

898 S.E.2d 590

HEATON ERECTING, INC. et al.

v.GIERUM.

A23A1588

Court of Appeals of Georgia.

February 13, 2024

G. Scott Hoffman Jr., Atlanta, Richard Austin Watts, for Appellant.

David H. Moskowitz, Atlanta, Rebecca K. Halberg, for Appellee.

Land, Judge.

In this workers’ compensation case, the superior court affirmed the temporary total disability award of the appellate division of the State Board of Workers’ Compensation to Steven Gierum. We granted a discretionary appeal from Gierum’s employer, Heaton Erecting, Inc., and Amerisure Mutual Insurance Company (collectively, "appellants"), who now argue that the superior court erred in applying the "concurrent dissimilar" employment doctrine and in applying an "any evidence" standard of review to the findings of the appellate division. We disagree and affirm.

[1–3] "In reviewing a workers’ compensation award, both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division of the State Board of Workers’ Compensation." (Citation and punctuation omitted.) Ray Bell Constr. Co. v. King, 281 Ga. 853, 854, 642 S.E.2d 841 (2007). "If any evidence supports the appellate division’s findings, those findings are binding and conclusive, and neither this Court nor the superior court may substitute itself as the fact finding body." (Punctuation and footnote omitted.) Medical Office Mgmt. v. Hardee, 303 Ga. App. 60, 67 (2) (b), 693 S.E.2d 103 (2010). "However, erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review." (Footnote omitted.) McLendon v. Advertising That Works, 292 Ga. App. 677, 677-678, 665 S.E.2d 370 (2008).

So viewed, the record shows that Gierum and his wife are originally from New York, where Gierum worked as a union crane operator/engineer. Because of the nature of Gierum’s work, there were periods where he had no jobs to complete. In late 2017 or early 2018, the Gierums formed Qualassure, a "mom and pop" home renovation business, to supplement their income. The Gierums ran the small business together, with Gierum’s wife generally in charge of marketing while Gierum performed the physical work of home renovations or coordinated work by subcontractors. If Gierum’s wife "need[ed] him to," Gierum would also "do social media" or provide estimates over the phone.

In March 2020, the Gierums moved to Georgia and incorporated Qualassure in the state. Their move to Georgia coincided with the COVID-19 pandemic, and Gierum’s wife testified that although she and her husband were still employed at Qualassure, "it took a little bit for it to start back up again" because "[n]obody wanted … anybody in the house."

The Gierums continued to bid on projects but were unsuccessful, and in May 2020, Gierum began working for Heaton Erecting as a crane operator/engineer. Shortly thereafter, in August 2020, Gierum’s wife underwent emergency surgery and Gierum took a month of leave to care for his wife and children. Gierum did not have paid time off with Heaton, and the family was without a source of income. During this time, the Gierums continued to do "preliminary" work for Qualassure to generate business, and by late September, Qualassure had its first project in Georgia.

Gierum returned to work at Heaton on or about September 13, 2020. On September 16, he injured his sacroiliac joint while driving his crane to a job.¹ As a result of his injury, Gierum was unable to work as a crane operator because he could not sit in a cramped position for extended periods of time, and he began to draw temporary total disability benefits ("TTD") based solely on his income from Heaton. Gierum was, however, able to continue to perform work as a handyman for Qualassure. In the fall of 2020, Gierum completed projects for individual homeowners and as a sub-contractor for his brother-in-law’s construction company, Melo and Sons Construction ("Melo").

On December 7, 2020, Gierum returned to work at Heaton performing light-duty work as an administrative assistant. See OCGA § 34-9-240; Ga. Workers’ Compensation Board Rule 240. His temporary total disability benefits were suspended at that time. After fifteen days,² Heaton conducted a "general layoff" of Gierum and another employee, who returned to work weeks later. Gierum was subsequently terminated on or about January 6, 2021.

Gierum requested a hearing before the Board seeking, among other things, the recommencement of temporary total disability (TTD) benefits from January 6, 2021, the designation of Dr. Keith Osborn as the authorized treating physician, and an award of assessed attorney fees. Appellants sought repayment of TTD benefits paid by them from September 16, 2020 to December 8, 2020, arguing that Gierum had worked for other employers, Qualassure and Melo, earning a wage in excess of his pre-injury average weekly wage. Appellants also requested denial of further workers’ compensation wage benefits continuing from January 6, 2021, on the basis that Gierum had returned to work for Qualassure and Melo, earning more money than he was making before his work accident with Heaton.

After a hearing, an administrative law judge ("ALJ") concluded that Gierum was entitled to ongoing TTD wage benefits and medical treatment. The ALJ denied appellants’ request for repayment of previously paid TTD benefits, finding that although there was a "gap in reestablishing Qualassure after the move to Georgia," the pandemic and Gierum’s wife’s incapacity after major surgery was a "credible explanation" for that gap. The ALJ found that Gierum had worked for "several years" as a crane operator in New York while maintaining Qualassure, which represented a "pattern" of concurrent employment prior to his work at Heaton. Accordingly, the ALJ concluded that Gierum’s work with Qualassure and his crane operator work with Heaton were concurrent dissimilar employment, and appellants could not receive any credit for Gierum’s postaccident earnings at Qualassure.

Appellants filed an appeal to the appellate division of the State Board of Workers’ Compensation. After a hearing, the appellate division adopted the ALJ’s findings of fact, conclusions of law, and the ALJ’s award. Appellants’ motion for reconsideration was denied. Pursuant to OCGA § 34-9-105, Appellants timely filed an appeal to the Gwinnett County Superior Court. After a hearing, the trial court affirmed the appellate division’s order. This court granted appellants’ application for discretionary appeal, and this appeal followed.

1. Appellants argue that the trial court erred in applying the concurrent dissimilar employment doctrine because there was no evidence that Gierum (a) earned any wages or (b) performed any work at Qualassure in the thirteen weeks preceding his work accident with Heaton.³ Specifically, appellants argue that under our Supreme Court’s opinion in Fulton County. Bd. of Ed. v. Thomas, 299 Ga. 59, 786 S.E.2d 628 (2016), employment that was not performed and for which wages were not earned within the thirteen weeks prior to a work injury cannot be "concurrent" employment as a matter of law. Accordingly, appellants argue that Gierum’s work with Qualassure was not concurrent with his accident and that they are entitled to repayment for the wages earned by Gierum’s work with Qualassure after his accident.

[4] "[T]he workers’ compensation law is a humanitarian measure to be construed liberally, and its purpose is to provide compensation for an injured employee in proportion to his loss of future earnings on account of the injury." (Citation and punctuation omitted.) Ware County, Bd. of Ed. v. Taft, 350 Ga. App. 848, 850, 830 S.E.2d 326 (2019). Under the version of OCGA § 34-9-261 in effect at the time of Gierum’s injury, "while the disability to work resulting from an injury is temporarily total, the employer shall pay or cause to be paid to the employee a weekly benefit equal to two-thirds of the employee’s average weekly wage but not more than $500.00 per week …. " OCGA § 34-9-261. The employee’s average weekly wage is calculated pursuant to methods set forth in OCGA § 34-9-260, which provides in pertinent part:

(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[.]

[5, 6] In the workers’ compensation context, "‘[e]mployment … means the type or kind of employment, such as...