PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.,
and Russell and Lacy, S.JJ.
ALISSA M. THORPE, BENEFICIARY OF
MATTHEW ALSON THORPE (DECEASED) 1
OPINION BY
v. Record No. 110349 SENIOR JUSTICE CHARLES S. RUSSELL
May 4, 2012
TED BOWLING CONSTRUCTION, ET AL.
FROM THE COURT OF APPEALS OF VIRGINIA
This is an appeal from an award of worker's compensation
benefits. It presents a question concerning the statutory rules
governing the determination of an employee's "average weekly
wage."
Facts and Proceedings
The essential facts are undisputed. In 2006, Matthew Alson
Thorpe was the owner of a self-storage facility and operated a
side business called "Alson's Ornamental Iron" that installed
residential porch railings. Eric McMahon worked for Alson's
Ornamental Iron.
1
Alyssa Thorpe did not file her claim with the Workers'
Compensation Commission as personal representative of the
deceased Matthew Alson Thorpe. Rather, the parties entered into
a stipulation that she was his wholly dependent wife at the time
of his injury and was therefore a statutory beneficiary pursuant
to Code §§ 65.2-515(A)(1) and 65.2-512(A)(1). The Commission
originally styled the case: "Matthew Alson Thorpe (Deceased) -
Employee, Alissa M. Thorpe, Claimant." Later, the caption was
changed to its present form.
In May 2006, John Clary, one of Thorpe's storage customers,
offered to employ Thorpe and McMahon to complete the metal roof
and siding of an industrial building he was constructing for Ted
Bowling Construction. Clary offered Thorpe and McMahon $5000 to
complete the job. Clary wanted the job completed "as soon as
possible." He expected them to complete it in one week, but
made it clear that he would pay $5000 only when the job was
completed, no matter how long it took. Clary memorialized his
offer by writing "5000" with soapstone on the top of a shop
table in the office in which the employment was being discussed.
Because the iron railing business was "slow" at the time, Thorpe
and McMahon agreed to do the work, even though they had never
previously done work of that kind. They agreed to divide the
$5000 payment equally between themselves.
Clary provided tools and materials and gave the men some
instruction and supervision. On May 26, 2006, their fourth day
of work, while installing metal sheets on the roof of the
building, Thorpe fell through a skylight to his death. His
widow, Alissa M. Thorpe (the claimant), filed with the Workers'
Compensation Commission of Virginia (the Commission) a claim for
worker's compensation benefits.
A deputy commissioner heard the evidence in February 2009.
Clary had "disappeared" and, because of Thorpe's death, the only
witness to the terms and conditions of the employment, as well
2
as the facts of the fatal accident, was McMahon. 2 Thorpe and
McMahon had never before engaged in the kind of work they were
doing for Clary. Neither party adduced any evidence of the
prevailing wage paid at that time and in that area for similar
work. Thus, the only evidence presented to the deputy
commissioner concerning Thorpe's wages for work in the relevant
trade was McMahon's testimony as to their single transaction
with Clary, described above.
After the hearing, the deputy commissioner, in a letter to
counsel, wrote:
I confess that though I have scoured the
record to access all the information available to
make a proper determination of the average weekly
wage of Mr. Thorpe, pursuant to § 65.2-101, the
evidence is limited. For that reason, I invite
your input as to whether there needs to be a
reconvening of the hearing for that limited issue,
or, if both parties are in agreement that no
further evidence should come into the record, for
your position statements on the determination of
the average weekly wage.
Counsel responded by a letter stating that they agreed that no
further evidence was necessary and that they would state their
positions in writing.
2
Clary did business as "JMC Welding." The Commission
determined that he was Thorpe's employer at the time of the
accident. Ted Bowling Construction, for whom Clary was
constructing the building, was determined to be the statutory
employer and Virginia Surety Company defended the claim as its
compensation carrier.
3
After receiving counsels' written arguments, the deputy
commissioner found that Thorpe was Clary's employee at the time
of the accident and that Ted Bowling Construction was his
statutory employer. The deputy commissioner found that Alissa
Thorpe was Thorpe's sole beneficiary and was entitled to
benefits under the Workers' Compensation Act (the Act).
Turning to the issue of Thorpe's average weekly wage at the
time of the accident, the deputy commissioner held that the only
evidence in the record was that Thorpe was employed to perform a
specific job for a total compensation of $5000 (to be divided
with McMahon) and was not employed for a specific period of
time. He was not an independent contractor because Clary had
the power to control and supervise his work. Neither was he a
casual employee. Because there was no evidence in the record of
any other wages Thorpe, or any other person, had been paid for
similar work, the deputy commissioner was left with no
alternative but to compute Thorpe's average weekly wage on the
basis of the single payment of $5000, from which Thorpe would be
paid $2500, pursuant to his contract of employment with Clary. 3
The deputy commissioner determined that Thorpe would have
3
The evidence showed that Clary never paid anything to
McMahon or to anyone on Thorpe's behalf. The deputy
commissioner ruled that to be immaterial because of Clary's
promise of payment.
4
received from Clary $2500 during the entire calendar year 2006.
Divided by 52 weeks, that resulted in an average weekly wage
from Clary of $48.08. In the absence of any other evidence, the
deputy commissioner adopted that figure as the average weekly
wage applicable to the claim. That finding resulted in an award
of $48.08 payable weekly for 500 weeks, plus burial, medical and
transportation costs, and attorney's fees.
The claimant appealed to the full Commission. By a divided
vote, the Commission agreed with the deputy commissioner,
holding:
There was no evidence within the record that the
decedent had anticipated any further jobs from
the employer. The decedent had never worked for
the employer and had never attempted this
particular type of work prior to beginning this
job. The claimant may have had other
employment; however, the record shows that this
employment was dissimilar to the employment in
which he was working at the time of his death
and, thus, any earnings from that employment
could not be used to calculate the average
weekly wage.
The claimant appealed to the Court of Appeals. A unanimous
three-judge panel affirmed the decision of the Commission by a
published opinion, Thorpe v. Clary, 57 Va. App. 617, 629, 704
S.E.2d 611, 616 (2011). We awarded the claimant an appeal. The
claimant's sole assignment of error is to the Court of Appeals'
ruling affirming the Commission's holding that $48.08 was
Thorpe's average weekly wage applicable to the claim.
5
Analysis
Awards of workers' compensation benefits under the Act are
based upon the employee's average weekly wage. Dinwiddie Cnty.
Sch. Bd. v. Cole, 258 Va. 430, 432, 520 S.E.2d 650, 652 (1999).
Code § 65.2-101(1) defines the term "[a]verage weekly wage"
within the meaning of the Act and governs its application. That
section provides for a four-step analysis. First, if the
employee has been working "in the employment in which he was
working at the time of the injury" for 52 weeks or more, then
his average weekly wage is computed by dividing his earnings in
that employment, during the 52 weeks immediately preceding his
injury, by 52. Second, the statute provides that if the
employment was less than 52 weeks in duration prior to the
injury, the employee's earnings during the time of his
employment shall be divided by the number of weeks he earned
wages, "provided that results fair and just to both parties will
be thereby obtained." Third, the statute provides:
When, by reason of a shortness of time during
which the employee has been in the employment of
his employer or the casual nature or terms of
his employment, it is impractical to compute the
average weekly wages as above defined, regard
shall be had to the average weekly amount which
during the 52 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 § 65.2-101(1)(a). Fourth, the statute provides:
6
When for exceptional reasons the foregoing 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.
Code § 65.2-101(b).
The claimant argues on appeal that this case is governed by
our decision in Uninsured Employer's Fund v. Thrush, 255 Va. 14,
17, 496 S.E.2d 57, 58 (1998). There, Thrush was hired for one
day of work, painting power poles in a parking lot. He was to
work for seven hours at an agreed wage of $6 per hour. While
performing the work, Thrush fell from a scaffolding, came into
contact with electric power lines, and died as a result of
electrocution. Although Thrush's usual occupation was as a
pipe-layer, we agreed with the Commission's holding that his
earnings from that employment could not be considered in
computing his average weekly wage, observing that the
"dissimilar employment rule" is "alive and well in workers'
compensation law." Id. at 21, 496 S.E.2d at 10. We did,
however, as the claimant points out, determine that Thrush had
the expectancy of a payment of $42 for the seven hour day for
which he was employed. That figure, we held, was the only basis
provided by the evidence for computing his average weekly wage,
resulting in an award of $42 per week. Id. at 22, 496 S.E.2d at
61.
7
The present case differs from Thrush in a fundamental
respect. Thrush was employed for a fixed period of time, one
day. This meant that the wage he was to earn that one day
represented the total amount he was to earn from that employment
for the week he was employed. No such time-based conclusion is
possible in the present case. Thorpe was not employed for any
period of time. Rather, he was hired to perform a job for a
fixed price. His compensation would have been the same whether
he completed it in four days or 52 weeks. Thus, our holding in
Thrush is inapplicable here.
The parties were offered an unusual opportunity to reopen
the case before the deputy commissioner to supplement the very
limited evidence in the record concerning the applicable average
weekly wage. Under the third step of the statutory analysis,
evidence of the wages earned by similarly-situated workers would
have been admissible to supplement this very sparse record, but
neither party chose to offer such evidence. As the Court of
Appeals correctly held, the burden of proof is upon the claimant
at every step of the decision-making process. Thorpe, 57 Va.
App. at 626, 704 S.E.2d at 15 (citing Thrush, 255 Va. at 20, 496
S.E.2d at 60). The claimant failed to carry the burden of
proving that any basis existed for computing Thorpe's average
weekly wage beyond the fact of his single transaction with
Clary.
8
The claimant relies on the language of the statute in its
specification of the second step in the analysis, providing that
where the employment has lasted less than 52 weeks, his earnings
during the time he was employed "shall" be divided by the number
of weeks he earned wages. Code § 65.2-101(1)(a). This, the
claimant contends, makes the second-step analysis mandatory,
requiring the Commission to divide $2500 by one, resulting in an
average weekly wage of $2500. The claimant overlooks the
qualifying proviso that completes the second-step analysis:
"provided that results fair and just to both parties will be
thereby obtained." Id.
Thorpe had never worked in the metal roofing and siding
occupation before, and there was no evidence that he would ever
do so in the future. He had never worked for Clary before and
there was no evidence that any future employment was
contemplated by either of them. Their engagement was for a
single project. Under those circumstances, it would manifestly
not be "fair and just to both parties" to impose on the employer
an award based on the assumption that the employee was hired for
a continuing wage of $2500 per week.
Conclusion
For the reasons stated, we will affirm the judgment of the
Court of Appeals.
Affirmed.
9