AVERAGE
WEEKLY WAGE
See Earnings,
Wages
New
Compensation Rates Effective July 1, 1999 are:
Maximum
Compensation Rate:$567.00;
Minimum Compensation Rate: $141.75;
and Cost of Living Increase:1.6%
It is the duty of the Commission to make the best possible estimate
of . . . impairments of earnings from the evidence adduced at the hearing, and to
determine the average weekly wage. Pilot Freight Carriers, Inc. v. Reeves, 1 Va.
App. 435, 441, 339 S.E.2d 570, 573 (1986) (The Commission must approximate the economic
loss suffered by an employee or his beneficiaries. Bosworth v. 7-Up Dist. Co.,
4 Va. App. 161, 163, 355 S.E.2d 339, 340 (1987)).
Similar Employment: If an employee has two or
more similar jobs for different employers, the combined earnings
are used to compute AWW. McNeil v. First Virginia Banks, Inc., 8 Va. App. 342, 381
S.E.2d 357 (1989). If an employee has two dissimilar jobs for one employer, the
earnings are combined to compute AWW. The commission properly concluded,
"[t]hus, the question of whether the employment is similar or dissimilar should not
be relevant where the employer is the same, and only the jobs are different." Cf. Marianna
School Dist. v. Vanderburg, 700 S.W.2d 381 (1985). Dinwiddie County School Board
v. Delorice M. Cole, Record No. 0081-98-2 (November 3, 1998).Virginia
follows the majority rule that when an employee is injured on one job while in concurrent
employment, the average weekly wage compensated is based on the combined earnings of both
jobs if, but only if, the employments are related or similar. See First Virginia Banks,
Inc. v. McNeil, 8 Va. App. 342, 343, 381 S.E.2d 357, 358 (1989) (where claimant is
employed by more than one employer, claimant's combined earnings are used to arrive at the
average weekly wage only if the employments are "substantially similar"). In the
past, the commission has held that in applying the similar employment rule, it "must
. . . recognize that there are no two jobs which are exactly alike," but that
"the entire spectrum of duties should be considered." Hall v. American
Janitor Service, 61 O.I.C 172, 175 (1982). Other jurisdictions have held that if the
employment is of the same class or kind, the similar or related employment rule may apply
to work done during irregular, off hours. See generally Arthur Larson, The Law of
Workmen's Compensation, Sec. 60.31(b) (1994). For example, where a workman was regularly
employed as an electric welder for one employer and repaired gasoline tanks for another
employer on Saturday afternoons and Sundays as needed, his compensation for injury during
the off hours job was calculated by including earnings from the full time job because both
were electric welding jobs. See Sprout & Davis, Inc. v. Toren, 118 Ind. App.
384, 78 N.E.2d 437 (1948). In another case, a high school dietician, injured while
supervising a church dinner, was allowed to combine earnings from both activities. See McDowell
v. Flatbush Congressional Church, 277 N.Y. 536, 13 N.E.2d 462 (1938). In Smith v.
James, 12 A.D.2d 833, 209 N.Y.S.2d 622 (1961), the Appellate Division affirmed an
award to an employee who was injured during employment as a maid for one day a week and
who was additionally employed five days a week at a beauty shop. In holding the two
employments were similar, the Court noted that in both employments the claimant testified
that she was a maid and that she was not employed by the beauty parlor as a beautician. Id.
at 834, 209 N.Y.S.2d at 624. While the claimant's duties at the parlor included waiting on
customers, putting customers under the dryers, and serving lunches, her principal work was
cleaning. Id.
The commission did not err in holding that claimant's employments
with KRW Trucking and North and South Lines were dissimilar for
purposes of calculating his average weekly wage. "[T]he
[dissimilar employment] rule is alive and well in workers' compensation
law." Uninsured Employer's Fund v. Thrush, 255 Va. 14, 21, 496
S.E.2d 57, 60 (1998). In determining whether two jobs are
"substantially similar," we look to the following: (1) "the
duties and skills" of each job, and (2) "the primary
mission" of the employee on each job. [Frederick Fire and Rescue
v. ]Dodson, 20 Va. App. [440,] 444-45, 457 S.E.2d [783,] 785 [(1995)].
"In every situation where the commission is asked to determine
whether two or more jobs are substantially similar, the commission must
consider not only the particular duties of each job, but also the general
nature or type of employment of the two jobs." Mercy Tidewater
Ambulance v. Carpenter, 29 Va. App. 218, 224, 511 S.E.2d 418, 421
(1999) (quoting Creedle Sales Co. v. Edmonds, 24 Va. App. 24, 28,
480 S.E.2d 123, 125 (1997)). Credible evidence in the record supports the
commission's findings "that the only common skill [claimant employed
for both TRW Trucking and North and South] was that of driving, . . . that
[this common skill] was performed only infrequently for North and South .
. . [, and that] the other skills did not overlap in the two
employments." Claimant's primary employment with North and South was
dispatching the trucks to and from various destinations in service of
North and South's customers. His employment with KRW Trucking did not
include that function. Thus, his duties with both entities were so
unrelated that we cannot say the commission erred in concluding they
were not substantially similar. Kenneth
R. Wood v. Kenneth R. Wood, Sole Prop., Record No. 0470-99-3
(December 7, 1999). WP
Version.
One Employer but
Dissimilar Jobs. If a worker has
two dissimilar jobs for one employer, the earnings in both jobs are
combined to calculate the average weekly wage. Because the employer is
of singular identity, the emphasis naturally is upon the employer-employee
relationship and the character of the work becomes an irrelevant
consideration. As a matter of common sense and simple logic, it cannot
reasonably be doubted that claimant was working "in the
employment" of the School Board when she was injured, regardless of
whether the particular work she was performing at the time was similar to
her other work, whether she had separate contracts for her two jobs, or
whether her wages were charged to two separate budgets. The Supreme Court
had considered the dissimilar employment rule on two previous occasions,
and, in each instance, has applied the rule to deny the aggregation of
earnings in dissimilar employment in calculating the average weekly wage. Uninsured
Employer's Fund v. Thrush, 255 Va. 14, 496 S.E.2d 57 (1998)
(impermissible to combine wages from regular job as pipelayer with wages
from temporary job as painter because of dissimilarity in work); Graham
v. Gloucester Furniture Corp., 169 Va. 505, 194 S.E. 814 (1938)
(impermissible to combine wages from full-time job as expert mechanic with
wages from part-time job as steeplejack because of difference in character
of work). But these cases both involved two employers, and these prior
decisions are inapposite. Combining a claimant's wages paid by a single
employer for two jobs performed is fair to the single employer because
that employer had already assumed the liability risk. Dinwiddie
County School Bd. v. Cole, 28 Va.
App. 462, 465, 506 S.E.2d 36, 37 (1998), aff'd, Dinwiddie
County School Board v. Cole, 258
Va. 430, 520 S.E.2d 650, Record No. 982520
(November 5, 1999). WP
Version.
The Workers'
Compensation Commission (commission) did not err in calculating claimant's
average weekly wage ("AWW") as $663.23 by combining her wages
from three dissimilar jobs she worked for employer during the
fifty-two week period immediately preceding her compensable injury by
accident. Claimant was employed full-time pursuant to a contract with the
School Board to perform three distinct jobs. Her annual salary for 1997
was $19,120.52. During the school year, she worked as a bus driver
at the rate of $11.14 per hour and as a cafeteria worker at the
rate of $10.02 per hour. During the summer, she worked on
"textbook duty" at a rate of $6.32 per hour. During most of
the year, claimant performed at least two of the jobs on a regular basis.
However, during several weeks in the summer, she performed only the
textbook duties. Claimant sustained a compensable back injury while
performing the textbook job. She was disabled from June 23 through August
19, 1998. During the week of her injury, claimant was performing only one
job for the School Board. This case is controlled by Dinwiddie
County School Board v. Cole, 258 Va. 430, 520 S.E.2d 650 (1999),
in which the Supreme Court held that earnings received from two dissimilar
jobs with the same employer were properly combined to calculate Cole's
average weekly wage. In this case, as in Cole, the claimant was
working "in the employment" of the School Board when she was
injured, regardless of which specific job she happened to be performing at
the precise time of her injury. Under these circumstances and in light of
the Supreme Court's holding in Cole, the commission did not err in
combining claimant's wages from all three jobs in which she had worked for
the School Board during the fifty-two week period immediately preceding
her injury in order to calculate her AWW. City
of Danville School Bd. v. Bonnie Watson, Record No. 1312-99-2
(February 8, 2000). WP
Version.
Similar Employment. When an injured employee is
disabled from performing his employment duties, the employee's earnings include the
earnings from two or more jobs that are "substantially similar."
Frederick Fire and
Rescue v. Dodson, 20 Va. App. 440, 443, 457 S.E.2d 783, 784 (1995).
"Virginia follows the majority rule that when an employee is injured on one job while
in concurrent employment, the average weekly wage compensated is based on the combined
earnings of both jobs if, but only if, the employments are related or similar." Id.
(citing First Virginia Banks, Inc. v. McNeil, 8 Va. App. 342, 343, 381 S.E.2d 357,
358 (1989)). This rule, also termed the dissimilar employment rule,
"is alive and well in workers' compensation law." Uninsured Employer's
Fund v. Thrush, 255 Va. 14, 21, 496 S.E.2d 57, 60 (1998). The term
"similar" in this context may relate to the similarity of: (1) the work,
(2) the industry in which the work is performed, or (3) the degree of hazard to which the
employee is exposed. See generally, 5 A. Larson, Sec. 60.31 (1997). In determining whether
two jobs are "substantially similar," courts look to the following: (1) "the
duties and skills" of each job, and (2) "the primary mission"
of the employee on each job. Dodson,
20 Va. App. at 444-45, 457 S.E.2d at 785. "In every situation where the commission is
asked to determine whether two or more jobs are substantially similar, the commission must
consider not only the particular duties of each job, but also the
general nature or type of employment of the two jobs." Creedle Sales Co. v.
Edmonds, 24 Va. App. 24, 28, 480 S.E.2d 123, 125 (1997). In the instant
case, the commission correctly found that claimant's jobs at Mercy Tidewater and
Children's Hospital had "a substantial overlap in the specific duties and skills . .
. ." Claimant testified that his duties at Children's Hospital were the same as those
at Mercy Tidewater. "The only difference was, the patients were smaller [at
Children's Hospital] and they were in a hospital setting." Both positions focused on
providing emergency care services to patients. Cf. Dodson,
20 Va. App. at 445, 457 S.E.2d at 785 (finding that emergency medical technician and
firefighter-paramedic were of the same general class of "emergency/rescue"); Creedle Sales Co. v.
Edmonds, 24 Va. App. at 28-29, 480 S.E.2d at 125 (finding that
plumbing/pipe-fitting and mechanic work were of the same "primary mission"). Mercy Tidewater
Ambulance Service v. Bert P. Carpenter, Record No. 1813-98-1 (March 2,
1999). WP
Version.
In the absence of a fifty-two week pay history, the average
weekly wage may be calculated by "dividing the earnings during that period [the
employee worked] by the number of weeks . . . which the employee earned wages . . .,
provided that results fair and just to both parties will be thereby obtained." Code
Sec. 65.2-101
("Average weekly wage"). The calculation of average weekly wage "is a
question of fact to be determined by the Commission which, if based on credible evidence,
will not be disturbed on appeal." Id. "Thus, if credible evidence
supports the commission's findings regarding the claimant's average weekly wage, [a court]
must uphold those findings." Chesapeake Bay Seafood House v. Clements, 14 Va.
App. 143, 146, 415 S.E.2d 864, 866 (1992).
Code Sec. 65.2-101(1)(a)
defines "average weekly wage" as "[t]he earnings of the
injured employee in the employment in which he was working at the time of the injury
during the period of fifty-two weeks immediately preceding the date of the injury,
divided by fifty-two."
Code Sec. 65.2-101(1)(a)
goes on to permit an alternative method by providing that if it is impractical to
compute the average weekly wage "as above defined" because of the shortness or
the casual nature of the employment, "regard shall be had to the average weekly
amount which during the fifty-two weeks previous to the injury was being earned by a
person of the same grade and character employed in the same class of employment in the
same locality or community."
Code Sec. 65.2-101(1)(b)
provides alternative methods for computing average weekly wage. This section
provides that "[w]hen for exceptional reasons the [formula prescribed by Sec. 65.2-101(1)(a)]
would be unfair either to the employer or employee, such other method of computing average
weekly wages may be resorted to as will most nearly approximate the amount which the
injured employee would be earning were it not for the injury."
Perquisites (for AWW purposes): Meals--$3.50
each; Lodging--$14.50/day; Meals & Lodging--$144.00/wk.;
House Rent--$54.00/wk.; Fuel--$24.00/wk.; Electricity--$9.00/wk.;
Water--$4.00/wk.; Phone--$6.00/wk.; Uniforms--$7.00/wk.;
Laundry--$4.00; Staples (Meat, eggs, garden,
etc.)--$36.00/wk.
Tips: determine average/wk. and include figure in AWW
determination.
Fringe Benefits: Employer paid premiums for medical
ins., disability ins., life ins., employer contributions to Union health funds, to
retirement, savings or profit sharing plans, and employee discounts are not
included in AWW calculation. See Gajan v. Bradlick Co., 4 Va. App. 213,
355 S.E.2d 899 (1987). A per diem payment for meals rather than
reimbursement for meal expenses is included. Seabrook v. American
Airlines, Inc., 68 O.I.C. 3 (1989).
Amendments to AWW after appeal time has run: Courts
and the commission consider the totality of the circumstances including timeliness
to determine whether the AWW should be amended. Normally there
must be clear and convincing evidence of (1) fraud , misrepresentation, or
imposition; (2) a calculation error; (3) an actual mistake of fact. See Kuebbler
v. Atlantic Research Corp., 71 O.W.C. 10 (1992); Campbell v. Commercial Steel
Erections, 64 O.I.C. 78 (1985).
The commission did not err in amending claimant's average
weekly wage almost two years after his accident because at the time of the
accident claimant had a similar job with another employer. Claimant did not know his wages
could be combined to calculate his average weekly wage and the employer was unaware of his
other job. This constituted mutual mistake of fact warranting amendment
of the average weekly wage. An employee's average weekly wage, even after being agreed to
by the parties and set forth in an award of the commission, is subject to modification
upon the grounds of fraud, misrepresentation, mistake or imposition. See John
Driggs Co. v. Somers, 228 Va. 729, 734, 324 S.E.2d 694, 697 (1985); Collins v. Dept. of
Alcoholic Beverage Control, 21 Va. App. 671, 679-80, 467 S.E.2d 279, 283,
aff'd on reh'g en banc, 22
Va. App. 625, 472 S.E.2d 287 (1996). It is immaterial whether
the mistake of fact is mutual or unilateral. See Collins, 21
Va. App. at
680, 467 S.E.2d at 283. Mercy
Tidewater Ambulance Service v. Bert P. Carpenter, Record No. 1813-98-1
(March 2, 1999). WP
Version.
"The purpose of the Workers' Compensation Act is to provide
compensation to an employee for the loss of his opportunity to engage in work
. . . ." Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 33-34, 366 S.E.2d 271,
272 (1988) (en banc). Code Sec. 65.2-500
contains the formula for benefits in total disability cases:
When the incapacity for work resulting from the injury is total, the
employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee
during such total incapacity, a weekly compensation equal to 66 2/3 percent of his average
weekly wages, with a minimum not less than 25 percent and a maximum of not more than 100
percent of the average weekly wage of the Commonwealth as defined herein. In any event,
income benefits shall not exceed the average weekly wage of the injured employee.
Claimant argues that nothing in Code Sec. 65.2-500
prevents her from receiving more than the total of her average weekly wage when
two employers are involved. However, Code Sec. 65.2-500 specifically limits
"income benefits . . . [to] the average weekly wage of the injured employee."
Additionally, Professor Larson in his treatise on workers' compensation presents a
rationale to limit awards for concurrent injuries to the weekly maximum for total
disability. [A]t a given moment in time, a person can be no more than totally disabled. .
. . [Additionally,] if he is allowed to draw weekly benefits simultaneously from a
permanent total and a permanent partial award, it may be more profitable for him to be
disabled than to be well--a situation which compensation law always studiously avoids in
order to prevent inducement to malingering. 2 Larson, supra, Sec. 59.41(a), at
10-561, -565, -567 (footnotes omitted). This rationale is equally applicable in a case
involving concurrent benefits from two total disability awards. In addressing this issue,
other states with a similar statutory maximum on total disability benefits have limited
benefits to the maximum when a claimant suffers more than one work-related injury. See,
e.g., Matney v. Newberg, 849 S.W.2d526 (Ky. 1993); Harrison v. Lakey Foundry
Corp., 106 N.W.2d 521(Mich. 1960); Walls v. Hodo Chevrolet Co., Inc., 302 So.
2d 862 (Miss. 1974); Fischer v. State Accident Ins. Fund Corp., 711 P.2d162 (Or.
Ct. App. 1985), review denied, 717 P.2d 1182 (Or. 1986). These cases hold that "a
claimant may not, at one time, be compensated for more than total occupational disability
because he can, in fact, be no more than totally occupationally disabled." Matney,
849 S.W.2d at 527. "[A] claimant may not pyramid benefits and receive in excess of
the maximum weekly benefits provided by statute during any one period." Walls,
302 So. 2d at 867. The Virginia Court of Appeals held that Code Sec. 65.2-500
limits claimant's total disability benefits to sixty-six and two-thirds percent of the
greater of her two average weekly wages. The purpose of workers' compensation is to
provide compensation to the injured employee who suffers a work-related accident by
continuing to pay her a wage comparable to that earned at the time of the injury. This
purpose does not justify awarding an employee who suffers two unrelated injuries
more money than she has ever earned in a week. Valorie J. Robinson v.
Salvation Army/The Georgia Corp., Record No. 2361-94-4 (July
18, 1995).
The commission properly decided that claimant's average weekly
wage, as a self-employed person operating as a sole proprietor,
"should be based on the net taxable income reported by [Holcombe's] business for
federal income tax purposes . . . [, which] will, of course, include all allowable
expenses, including, but not limited to, depreciation and interest." The
commission's decision follows the principle announced in one of its previous decisions
that an allowance for depreciation is a legitimate business expense. See Semones v. New
Jersey Zinc Co., 68 O.I.C. 1 (1989). The commission's decision is also consistent with
"the conclusion reached by the majority of courts which have addressed the question
of whether depreciation deductions should be considered in determining [average weekly
wages for self-employed individuals] to be awarded as workers' compensation." Elliott
v. El Paso County, 860 P.2d 1363, 1366 (Colo. 1993). See, e.g., Happle Solar
Contractors v. Happle, 547 So. 2d 1035, 1037 (Fla. Dist. Ct. App. 1989); Christian
v. Riddle & Mendenhall Logging, 450 S.E.2d 510, 513 (N.C. Ct. App. 1994); Nortim,
Inc. v. Workmen's Compensation Appeal Bd., 615 A.2d 873, 875-76 (Pa. Commw. Ct.
1992)."'[B]roadly speaking, depreciation is the loss, not restored by current
maintenance, which is due to all the factors causing the ultimate retirement of the
property. These factors embrace wear and tear, decay, inadequacy, and obsolescence.'"
Alexandria Water Co. v. Alexandria, 163 Va. 512, 564, 177 S.E. 454, 476 (1934)
(citation omitted). "'[T]he [depreciation] deduction simply protects . . . against
overstating . . . profits' . . . [and is] necessary to accurately determine the
appropriate amount of income of those who are self-employed." Elliott, 860
P.2d at 1365 (citation omitted).Depreciation allows claimant to account for the decrease
in value of his assets and recognizes that claimant will need to purchase replacement
equipment. The use of depreciation, thus, allows a more accurate basis to compute the
average weekly wage of a sole proprietor. The commission's decision also requires claimant
to make available to Meredith Construction "all books and records of
the sole proprietorship so that income and expenses may be verified."
This requirement complies with the commission's concerns expressed in Semones
that a sole proprietor such as claimant establish that the
depreciation is "an actual business expense." Meredith Construction Company,
Inc. v. John Alan Holcombe, Record No. 0135-95-3 (January 23, 1996).
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