Present: All the Justices
THE UNINSURED EMPLOYER'S FUND
OPINION BY
v. Record No. 970477 CHIEF JUSTICE HARRY L. CARRICO
January 9, 1998
CLARA ANNETTE THRUSH, ET AL.
FROM THE COURT OF APPEALS OF VIRGINIA
This is a workers' compensation case involving an employee
who was hired to work only one day for a total wage of $42 and
was killed after working a portion of the day. The case has
twice been before the Workers' Compensation Commission (the
Commission) and the Court of Appeals. In the second round, the
Commission awarded the employee's widow and minor child
compensation at a weekly rate of $160, based upon an average
weekly wage of $240. The Court of Appeals affirmed the award.
Finding that the case involves matters of significant
precedential value, we awarded an appeal to the Uninsured
Employer's Fund (the Fund), which became a party to the
proceeding because the employer was uninsured.
The employee, Brian Lee Thrush (Brian), a pipelayer by
trade, lived and worked in Florida. However, on December 8,
1991, he was in Virginia for a court appearance the next day,
planning to return to Florida immediately afterward.
Reichert Painting Company, a sole proprietorship owned by
Nancy Reichert (Reichert), contracted with Cavalier Ford, Inc. of
Chesapeake to paint light poles on Cavalier's car lot. Needing
extra help, Reichert hired Brian, a part-time painter, to work
seven hours on December 8 at $6 per hour. After about an hour
and a half of painting, Brian apparently fell from a "mobil[e]
scaffold," came into contact with a high-voltage electric line,
and died a short time later of "[s]hock due to electrocution."
On December 7, 1993, Brian's widow, Clara Annette Thrush,
and his minor child, Teauna Mae (collectively, Thrush), filed
with the Commission a claim for death benefits. A deputy
commissioner entered an award in favor of the widow and child for
death benefits of $196 per week, based upon an average weekly
wage of $294, derived from the formula $6 per hour x seven
hours = $42 per day x seven days = $294 per week. Upon the
Fund's request for review, the full Commission affirmed the
award.
The Fund appealed the award to the Court of Appeals
(Thrush I). In an unpublished memorandum opinion, the Court of
Appeals reversed the Commission's decision, stating that "a work
week of forty-nine hours was inexplicably adopted by the
commission, resulting in a purely conjectural calculation of
[Brian's] average weekly wage." The Court of Appeals remanded
the case to the Commission "for redetermination of the award in
accordance with an average weekly wage based upon a forty-hour
work week at $6 per hour."
Upon remand, the Commission interpreted the Court of
Appeals' action as a "remand . . . with directions to find that
the average weekly wage of the deceased employee was $240."
Accordingly, the Commission entered an award in the amount of
$160 per week, based upon an average weekly wage of $240, derived
from the formula $6 per hour x forty hours per week = $240.
The Fund appealed this award to the Court of Appeals
(Thrush II). The Fund took the position that "the amount of the
average weekly wage [was] not determined by the unpublished
opinion [in Thrush I]." However, in an unpublished per curiam
opinion, the Court of Appeals ruled that the Fund sought to raise
in Thrush II "the precise issue that was previously determined
[in Thrush I]" and, therefore, that the "law of the case"
doctrine barred the court from reexamining the issue and
"mandate[d] affirmance of [the Commission's award]." Hence, the
Court of Appeals did not reach the merits of the Fund's appeal.
As noted in the Court of Appeals' opinion in Thrush II, the
"law of the case" doctrine provides as follows:
Where there have been two appeals in the same case,
between the same parties, and the facts are the same,
nothing decided on the first appeal can be re-examined
on a second appeal. . . . It differs from res judicata
in that the conclusiveness of the first judgment is not
dependent upon its finality.
American Filtrona Co. v. Hanford, 16 Va. App. 159, 164, 428
S.E.2d 511, 514 (1993) (quoting Steinman v. Clinchfield Coal
Corp., 121 Va. 611, 620, 93 S.E. 684, 687 (1917)).
We must first determine whether the Court of Appeals' "law
of the case" ruling is binding upon this Court and bars its
consideration of the merits of the case. If this question is
answered in the affirmative, our inquiry is at an end.
On this question, Thrush's counsel stated in oral argument
before this Court:
The Court of Appeals correctly said that [the holding
of Thrush I] is the law of this case. There was no
appeal taken by [the Fund] from the initial
determination of the Court of Appeals of Virginia [in
Thrush I], which essentially told them what the
computation of the average weekly wage could have been,
and I think that would have been the appropriate time
for [the Fund] to bring that argument before this
Court. I think they are too late to try to bring it to
you today.
We disagree with Thrush. The Fund was not bound to appeal
from the Court of Appeals' decision in Thrush I. This is made
clear by Code § 17-116.09, one of the Code sections enacted as
part of the legislation creating the Court of Appeals. Code § 17-
116.09 states as follows:
A judgment, order, conviction, or decree of a circuit
court or award of the Virginia Workers' Compensation
Commission may be affirmed, or it may be reversed,
modified, or set aside by the Court of Appeals for
errors appearing in the record. If the decision of the
Court of Appeals is to reverse and remand the case for
a new trial, any party aggrieved by the granting of the
new trial may accept the remand or proceed to petition
for appeal in the Supreme Court pursuant to § 17-
116.08.
While the Court of Appeals in Thrush I may have told the
parties what the computation "could have been," the court did not
modify the Commission's award as Code § 17-116.09 permits but
reversed the award and remanded the case with directions for the
Commission to make a new award. The Fund was entitled to accept
the remand, rather than petition for an appeal to this Court, and
to attempt on remand to persuade the Commission to make an award
favorable to the Fund. As it happened on remand, the Commission
made an award that was not favorable to the Fund. This prompted
the Fund to appeal the award to the Court of Appeals in Thrush II
and then to seek an appeal to this Court, a course of action
which, in our opinion, is permissible under Code § 17-116.09.
To say, as Thrush would have us say, that the Court of
Appeals' application of the "law of the case" doctrine is binding
at this stage of the appellate process would mean that, by
accepting the remand, the Fund effectively waived its right to
seek an ultimate appeal to this Court from an unfavorable
decision following the remand. In our opinion, this is not the
result the General Assembly intended by its enactment of Code
§ 17-116.09.
This brings us to the merits of the case. The Fund contends
that the Commission erred in calculating the average weekly wage
in this case "as if the worker was a full time, forty hour a week
employee." On the other hand, Thrush contends that the
Commission's "determination that [Brian's] average weekly wage
was $240.00 is fully supported in both fact and law."
Thrush notes that the purpose "'for calculating the average
weekly wage is to approximate the economic loss suffered by an
employee or his beneficiaries.'" (quoting Bosworth v. 7-Up Dist.
Co., 4 Va. App. 161, 163, 355 S.E.2d 339, 340 (1987)). Thrush
then says that, to achieve this purpose, the Workers'
Compensation Act "gives the Commission considerable discretion in
computing an employee's average weekly wage."
Thrush first points out that Code § 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." Thrush tacitly
concedes that this method of computing average weekly wage is
inapplicable. Thrush emphasizes, however, that the section 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."
However, Thrush submitted no evidence to the Commission
concerning the earnings of a person engaged in similar
employment. Indeed, the Court of Appeals stated in its Thrush I
opinion that the record of the original Commission hearing was
"silent with respect to wages of similarly situated employees
during the fifty-two weeks prior to [Brian's] injury," and the
record of the remand hearing is equally silent.
Thrush next points to Code § 65.2-101(1)(b) as providing
alternative methodologies for computing average weekly wage.
This section provides that "[w]hen for exceptional reasons the
[formula prescribed by § 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."
At one point on brief, Thrush indicates that the "other
method" the Commission resorted to in computing Brian's average
weekly wage was to take "the amount of wages he was being paid by
Reichert per hour and projecting those wages over a forty-hour
work week." However, Brian was employed by Reichert to work only
one day, not a forty-hour week, so an essential component of the
Commission's projection breaks down upon analysis.
At another point on brief, Thrush indicates the Commission
could have computed Brian's average weekly wage by combining the
wage he was to earn as a painter for Reichert with the wage he
earned from his previous work as a pipelayer. For example,
responding to the Fund's argument that the long-standing
"dissimilar employment rule" in workers' compensation law does
not permit such combination when, as here, the previous work is
dissimilar, Thrush states that "it is clear under any reasonable
view of the plain language of [Code § 65.2-101(1)(b)] and the
particular facts of this case that the Fund's assertion that
dissimilar employment prevents extrapolation of a daily wage to a
weekly wage is entirely erroneous."
Thrush's argument suggests that Code § 65.2-101(1)(b) has
somehow discredited the dissimilar employment rule. We reject
the suggestion; the rule is alive and well in workers'
compensation law.
The rule finds its origin in the decision of the Industrial
Commission (now the Workers' Compensation Commission) in Thompson
v. Herbert, 4 O.I.C. 310 (1922). There, the Commission
considered the same statutory language that is now contained in
Code § 65.2-101(1)(b). The Commission held it was not
permissible to combine wages earned in dissimilar employment
because such action would contradict the definition now contained
in Code § 65.2-101(1)(a) of "average weekly wage" as "the
earnings of the injured employee in the employment in which he
was working at the time of the injury." Id. at 316.
This Court considered the propriety of combining dissimilar
employment in Graham v. Gloucester Furniture Corp., 169 Va. 505,
194 S.E. 814 (1938). There, the employee was injured while
working in a part-time job. In order to obtain the maximum rate
of workers' compensation, the employee sought to have his part-
time wages combined with wages earned in his regular full-time
employment. The Industrial Commission fixed compensation at the
minimum rate. Although not mentioned in the opinion, what is now
Code § 65.2-101(1)(b) was then part of the workers' compensation
law. This Court affirmed because the evidence supported the
Commission's finding that the employee's part-time work "was not
the same character of work as that performed" in his full-time
employment. Id. at 510, 194 S.E. at 816.
More recently, in Hudson v. Arthur Treachers, 2 Va. App.
323, 343 S.E.2d 97 (1986), involving the same factual pattern as
Graham, the Court of Appeals focused directly upon Code § 65.2-
101(1)(b) in considering the question whether its language
permits "the combination of wages earned from concurrent
dissimilar employment in determining the claimant's average
weekly wage." Id. at 326, 343 S.E.2d at 99. The Court of Appeals
answered the question in the negative, observing that because the
Commission has consistently applied the dissimilar employment
rule for many years, it must be presumed "that the legislature
was aware of, and is in agreement with, this practice." Id. The
Court of Appeals also made an observation, with which we concur,
that this Court's holding in Graham "represents an
acknowledgement and approval of the Commission's practice of
denying the combination of wages earned in dissimilar employment
for purposes of determining a claimant's pre-injury average
weekly wage." Id. at 327, 343 S.E.2d. at 99.
Hence, although the Workers' Compensation Act provides
several permissible methods of computing the average weekly wage,
none supports the average weekly wage determination made by the
Commission in this case. This leaves for consideration only the
$42 Brian was to be paid for his one day of work for Reichert as
a basis for computing the compensation payable to Thrush.
Accordingly, we will reverse the judgment appealed from and
remand the case to the Court of Appeals with directions to remand
the matter to the Commission. The remand to the Commission shall
direct that it fix the amount of compensation payable to Thrush
based upon the actual weekly wage of $42 and consistent with the
views expressed in this opinion.
Reversed and remanded.