Georgia appeals court weighs counting 'side hustle' as employment for workers' comp claimants
A crane operator had a side hustle for years before he was injured. However, the COVID-19 pandemic drove away both clients and profits from the gig in the months leading up to a debilitating injury.
Georgia’s courts continue to grapple with the aftereffects of the COVID-19 pandemic, particularly when it comes to decisions regarding unemployment and workers’ compensation.
Judges Anne Elizabeth Barnes, Benjamin Land and Jeffrey Watkins were faced with one such question, as the panel was asked to determine whether work done as a “side hustle” is still considered work, even if it didn’t turn a profit during the early months of pandemic shutdown. Their answer will determine whether the appellant still has to pay lost wages to an employee laid off because of an injury.
The central issue on appeal is whether the appellee Steven Gierum’s side hustle was concurrent with his job. The appellant, Heaton Erecting, his former employer, contends it was not, because Gierum was not earning a wage from the gig during the 13 weeks before his injury.
In the words of Gierum’s attorney, David Moskowitz, though, “You have to sow the seeds. To relegate work [to mean] you have no money [so] you have no physical duties, that just doesn’t exist in this economy in 2023. It’s not realistic. Think about where we were in 2020. I had no clients, but that doesn’t mean I wasn’t a lawyer and wasn’t working.”
According to Moskowitz, where Gierum worked in New York City prior to the pandemic, it was common for crane operators to have a secondary source of income. For Gierum and his wife, this was a handyman home repair business called Qualassure that they took with them when they moved to Georgia in February 2020.
While Gierum was able to get another crane operator job after the move, the small business wasn’t generating any income as a result of the lockdown. However, Moskowitz said that didn’t mean Gierum and his wife weren’t working to attract clients and build the business in the interim.
In August 2019, Gierum was injured on the job and wasn’t able to work because he could no longer sit in the crane operating cabin for extended periods of time. Gierum could still do handyman work though. As that business picked up, he came to rely on it as his primary source of income when he was put on disability leave and ultimately laid off.
Swift Currie’s Rusty Watts, on behalf of the appellants, argued the company shouldn’t have to pay out workers’ comp benefits because Gierum started making “tens of thousands of dollars” after his injury and wasn’t doing handyman work in the 13 weeks prior, as per the concurrent dissimilar employment doctrine established by the state supreme court in Fulton County Board of Education v. Thomas.
The judges closely scrutinized the company’s position and asked the appellees under what circumstances a side hustle would affect workers’ comp payouts. Moskowitz’ position was that because the business involved concurrent and dissimilar work to Gierum’s day job, it did not.
“Is the amount the appellee made relevant here?” Barnes asked.
“Absolutely your honor,” Watts replied, “The whole inquiry here is whether someone is economically disabled. [The statute] provides a mathematical formula to determine disability by subtracting the amount of money made after the accident at a new job versus the money being made before … the absurdity of the results with the amounts of money [in question] does make a difference here.”
Moskowitz countered that no one knows how much money the handyman business is generating compared to what Gierum was making as a crane operator, because those proceeds from the side job also go to operating the business.
“Your primary position is that [the job] was not concurrent because he was not earning a wage during the 13 weeks before he was injured, not whether he was sending out bids or working on social media, or anything else a small businessman might do in preparation,” Land said to Watts. “What’s your authority for that?”
Watts cited the Thomas case, but Land countered that the Supreme Court didn’t hold that directly and that Watt’s argument is an extrapolation of the court’s disposition. Watts replied that the opinion itself is an extrapolation of the statute, but that the high court did mandate that the wage element should be the focus of these inquiries.
“Did they mandate it by saying it or did they mandate it because that’s your interpretation of the logical end result?” Land asked.
Watts answered that the case defined concurrence as the 13-week window prior to an accident, but Land said that definition was not in the context of dissimilar employment, making this an issue of first impression in the court.
“These doctrines of similar and concurrent and dissimilar and concurrent exist in a very fine balance,” Moskowitz said. “If we do not determine that this is concurrent, [it] is going to affect [the statute] from a legislative standpoint and how we determine average weekly wage.”
According to Moskowitz: “90% of the time, the secondary job is secondary … [My client] just had to kick it into high gear because of his work injury, and he can’t go back [to being a crane operator] … the record shows he was there for 17 years. He was [three] years away from vesting on his pension and he has no healthcare benefits. He has every reason to go back.”
The case is Heaton Erecting v. Gierum, No. A23A1588, in the Georgia Court of Appeals.
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