Heaton Erecting, Inc. v. Gierum

This is a case about Georgia’s “concurrent dissimilar employment” doctrine.

TTD benefits are awarded when an injured worker is unable to perform their pre-injury job due to the injury. Performing dissimilar work post-injury does not necessarily disqualify the worker from receiving TTD benefits. For example, in cases where workers engage in limited activities or alternative work that does not match their pre-injury employment, courts have upheld TTD benefits as long as the worker remains unable to perform their pre-injury job. In this case, Gierum’s ability to perform handyman work for Qualassure does not negate his inability to work as a crane operator, which was his pre-injury job.

Heaton Erecting, Inc. v. Gierum (2024)

Facts:

Steven Gierum, a crane operator, was injured while employed by Heaton Erecting, Inc. Shortly before his injury, he had moved from New York to Georgia and continued operating a separate, dissimilar business, Qualassure, which provided handyman and renovation services. Due to COVID-19 and his wife’s health issues, Qualassure initially struggled to generate income in Georgia, though the couple continued preliminary efforts to gain business. After the injury at Heaton, Gierum received temporary total disability (TTD) benefits based solely on his income from Heaton. While injured, he still managed to perform handyman work for Qualassure. Heaton challenged these benefits, arguing they were entitled to reimbursement of the TTD payments since Gierum was generating income through Qualassure after the injury.

Brief of the case

Issue:

Did the superior court err in applying the “concurrent dissimilar employment” doctrine, given that Gierum did not earn wages from Qualassure within the 13 weeks before the injury?

Holding:

The court held that despite the absence of wages from Qualassure immediately before his injury, evidence supported the conclusion that Gierum maintained concurrent self-employment in a dissimilar occupation at the time of injury. Thus, Heaton was not entitled to reimbursement from the earnings generated by Qualassure post-injury.

Reasoning:

Concurrent Dissimilar Employment Doctrine: The court explained that while wages earned within the statutory 13-week period before injury typically define concurrent employment, the law recognizes that actual payment is not the sole factor. The evidence indicated that although Qualassure generated no immediate income due to extraordinary circumstances (COVID-19 and medical issues), the Gierums were actively engaged in establishing and promoting their business, which qualified as concurrent self-employment. Furthermore, since the Qualassure employment was “dissimilar” (handyman/home renovations vs. crane operations), Heaton could not offset its liability with Qualassure’s post-injury earnings.

Standard of Review: The court emphasized the presumption that a trial court correctly applies the law unless clearly proven otherwise. Although the trial court mentioned the “any evidence” standard, it explicitly affirmed the Board’s finding as being correct under both fact and law, thereby applying the proper standard. Without affirmative evidence to show otherwise, the appellate court will not presume error in the trial court’s standard of review.

Outcome: The judgment of the superior court affirming the award of temporary total disability benefits to Gierum was affirmed.