O.C.G.A § 34-9-262 provides:
“. . . where the disability to work resulting from the injury is partial in character to temporary in quality, the employer shall pay or cause to be paid to the employee a weekly benefit equal to 2/3 of the difference between the average weekly wage before the injury and the average weekly wage the employee is able to earn thereafter but not more than $334.00 per week for a period not exceeding 350 weeks from the date of the injury.”
The Georgia Court of Appeals has examined what is meant by “the average weekly wage the employee is able to earn” as distinct from what the employee does earn. In Shaw Industries, Inc. v. Shaw, the Court of Appeals determined that the claimant was not entitled to the TPD (temporary partial disability) she was seeking for the difference between what she earned prior to her injury and what she was earning after her injury. The reason behind the court’s reduction in the claimant’s TPD benefits was that by the employee’s own doing, she missed some additional time from work. Shaw Industries, Inc. v. Shaw, 262 Ga. App. 586, 586 S.E. 2d 80 (2003).
There is also some argument that the Maloney burden would apply to someone seeking temporary partial disability benefits just as someone who is seeking total temporary disability benefits. See Gilbert/Robertson, Inc. v. Myers, 214 Ga. App. 510, 448 S.E. 2d 246 (1994). As such, a claimant would have the burden of showing that she performed a diligent search for suitable employment at the rate she was previously paid in order to merit TPD benefits.
So, clearly, the establishment of a TPD rate once an injured worker returns to some form of gainful employment is not necessarily a matter of simple arithmetic.