Present: All the Justices
DINWIDDIE COUNTY
SCHOOL BOARD, ET AL. OPINION BY
CHIEF JUSTICE HARRY L. CARRICO
v. Record No. 982520 November 5, 1999
DELORICE M. COLE
FROM THE COURT OF APPEALS OF VIRGINIA
Under the Virginia Workers’ Compensation Act, awards of
compensation benefits are based upon the average weekly wage.
Code § 65.2-101. In the present case, the question presented is
whether an employee who performs two separate jobs for her
employer and is injured in one may combine the wages received
from both in calculating the average weekly wage for
compensation purposes. Finding that the Workers’ Compensation
Commission (the Commission) did not err in combining the
employee’s wages and awarding compensation accordingly, we will
affirm.
The employee, Delorice M. Cole (Cole), has been employed by
the Dinwiddie County School Board (the School Board) as a school
bus driver for thirty-one years and as a teacher’s aide for
twenty years. Each year, she signs a separate contract for each
position, and she is paid by the School Board separately for
each job. Although the School Board has only one bank account,
Cole is paid from the Transportation Department’s budget for her
service as a school bus driver and from the Special Education
Department’s budget for her work as a teacher’s aide.
On December 2, 1996, while performing her job as a
teacher’s aide, Cole fell and injured her shoulder. Her injury
did not prevent her from performing as a teacher’s aide and she
lost no time from work in that capacity, but the injury did
prevent her performance as a school bus driver and she lost
certain periods of time from work in that job.
On January 30, 1997, Cole filed with the Commission a claim
seeking the award of medical benefits as well as temporary
disability benefits for periods of lost work as a school bus
driver. A deputy commissioner heard the case. Applying what
has been termed the “dissimilar employment rule” or the
“substantially similar doctrine,” the deputy commissioner found
that, “[a]lthough there are minor overlapping duties required in
the jobs of bus driver and teacher’s aide, . . . the two jobs
are not sufficiently ‘similar’ . . . to aggregate the earnings
in calculating the average weekly wage.” Accordingly, the
deputy commissioner awarded Cole no benefits for lost wages but
did allow her “medical benefits causally related to the
industrial accident.”
Cole appealed to the full Commission. The Commission
agreed that Cole’s jobs were dissimilar but held that “[s]ince
the employer is the same, the wages earned in both jobs should
2
be combined.” Cole v. Dinwiddie County School Bd., 76 O.W.C.
480, 485 (1997). Accordingly, the Commission calculated Cole’s
average weekly wage based upon her combined income from both
positions and awarded her payment of temporary partial
disability benefits for lost earnings. Id. at 485-86.
The School Board appealed to the Court of Appeals, and that
Court affirmed the Commission’s award. Dinwiddie County School
Bd. v. Cole, 28 Va. App. 462, 465, 506 S.E.2d 36, 37 (1998). We
awarded the School Board this appeal. *
Code § 65.2-101, part of the Virginia Workers’ Compensation
Act, states that “‘[a]verage weekly wage’ means . . . [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 . . . .” (Emphasis added.) The parties
focus their argument on the phrase, “in the employment,”
italicized above, and debate the applicability of the dissimilar
employment rule to the situation at hand, i.e., where there are
two jobs but only one employer.
The School Board argues that, in this situation, the
Workers’ Compensation Act required the Commission “to analyze
the similarity of the employee’s two jobs and to combine the
*
Virginia Municipal Group Self-Insurance Association is also
a party appellant.
3
earnings from each job only if the two employments are
‘similar’” and that the Commission “wrongly disregarded the
dissimilarity of Cole’s two jobs . . . and combined the wages
. . . to calculate the average weekly wage.” Cole argues that
the substantial similarity doctrine simply does not apply “when
the employee works for one employer, albeit in two positions.”
Code § 65.2-101 does not define the phrase, “in the
employment,” or mention the terms, “similar,” “substantially
similar,” or “dissimilar.” The statute, therefore, is not the
source of the dissimilar employment rule. Rather, the rule
originated in the decision of the Industrial Commission (now the
Workers’ Compensation Commission) in Thompson v. Herbert, 4
O.I.C. 310 (1922). That case involved an employee who worked
part time as a handy man at a cold storage plant and part time
as a teacher in the public schools. He was killed while working
at the cold storage plant, and his widow sought to combine his
earnings from that job with his earnings as a school teacher.
Considering the same statutory language that is now contained in
Code § 65.2-101 and finding that the deceased’s two jobs were
“totally different,” the Commission held it was not permissible
to combine wages earned in dissimilar employment because such
action would “nullify” the statutory language defining “average
weekly wage” as “the earnings of the injured employee in the
4
employment in which he was working at the time of the injury.”
Id. at 316.
This Court has 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, like the situation in the Thompson case decided by the
Commission, Graham and Thrush both involved two employers. So,
all three of these prior decisions are inapposite.
In its opinion, the Commission inquired into the question
“why wages can be combined if the jobs are similar, but should
not be combined if they are not.” In response, the Commission
said that workers’ compensation is designed to place the
economic burden of work-related injuries on industry and, more
specifically, on the employer. The rationale for the
proposition that the costs of work-related injuries should not
be expanded beyond similar employment is to prevent the costs
5
from being borne out of proportion to an industry’s payroll.
There is also a risk factor and a rationale that a low-risk
industry should not have to bear the costs of an injury
occurring in a high-risk industry. However, the question
whether the employment is similar or dissimilar should not be
relevant when the employer is the same and only the jobs are
different.
The Court of Appeals took the same view. It recognized
that “[t]he substantially similar doctrine prevents combining
salaries from two separate jobs if the jobs are not similar,”
but it said that “[t]he rationale for applying the doctrine is
not present when the two jobs are performed for the same
employer.” 28 Va. App. at 465, 506 S.E.2d at 37. The court
cited the following reasons for its view:
If an employee works for only one employer, the burden [of
a work-related injury] is not out of proportion to the
employer’s payroll or the industry’s risks. The single
employer is not being forced to assume responsibility for
the wages paid by some other employer or the risks of some
other industry. 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.
Id. at 464, 506 S.E.2d at 37. The court also said that the
decision of the Commission was in keeping with the purpose of
the Workers’ Compensation Act and entitled to deference because
it was not wrong as a matter of law. Id. at 465, 506 S.E.2d at
37.
6
The School Board argues, however, that the Court of Appeals
erroneously adopted a meaning of the statutory phrase, “in the
employment,” that emphasizes the relationship of the employee
with the employer rather than the type of work being performed
by the employee at the time of injury. “In effect,” the School
Board says, “what the Court of Appeals has done is to change, by
judicial fiat, the statutory phrase ‘earnings of the injured
employee in the employment’ to ‘earnings of the injured employee
with the employer’ in defining average weekly wage in this
particular fact situation.” This means, the School Board
claims, that “an employer would be required to pay compensation
based on combined earnings in two dissimilar jobs when performed
by one employee, but not so if the same jobs were performed by
two employees.” The School Board maintains “that all an
employer has to do to avoid this unfair result is to hire two
employees to perform the two jobs.”
We disagree with the School Board. The Court of Appeals
has not changed anything. It was presented a question of first
impression, and it was writing on a clean slate. All it did was
to apply clear statutory language in a context not previously
considered, one differing from the context in Thompson v.
Herbert, where the dissimilar employment rule originated.
When the context differs, nothing in Code § 65.2-101
prevents the placing of emphasis upon the relationship between
7
employer and employee rather than the type of work being
performed in determining average weekly wage. In Thompson v.
Herbert, it was necessary for the Commission to place the
emphasis upon the type of work being performed because, with two
employers of differing identity, whether the two jobs differed
or not became the crucial question.
Here, 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 Cole 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.
But, should doubt remain, Cole is entitled to the benefit
of the doubt. The provisions of the Workers’ Compensation Act
“should be liberally construed to carry out [its] humane and
beneficial purposes.” Baggett Transp. Co. v. Dillon, 219 Va.
633, 637, 248 S.E.2d 819, 822 (1978). Affirmance of the
judgment of the Court of Appeals will accomplish these purposes.
Affirmed.
8