COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton ∗
Argued at Norfolk, Virginia
MERCY TIDEWATER AMBULANCE SERVICE
OPINION BY
v. Record No. 1813-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 2, 1999
BERT P. CARPENTER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
F. Nash Bilisoly (Kelly O. Stokes;
Vandeventer Black, L.L.P., on briefs), for
appellant.
Sidney H. Kelsey, Jr., for appellee.
In this workers' compensation case, Mercy Tidewater
Ambulance Service (Mercy Tidewater) appeals the commission's
decision amending Bert Carpenter's (claimant) average weekly
wage. Employer also appeals the commission's finding that
claimant proved a loss of function in his left leg for purposes
of determining permanent partial disability benefits. For the
following reasons, we affirm in part and vacate in part.
I. BACKGROUND
On August 31, 1995, claimant suffered a compensable injury
to his back. Pursuant to a memorandum of agreement signed by the
parties, the commission entered an award on November 16, 1995,
∗
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
providing for temporary total disability benefits beginning
September 21, 1995, based upon an average weekly wage of $512.99.
At the time of his injury, claimant worked as a paramedic,
or emergency medical technician (EMT), for Mercy Tidewater. As
an EMT, he provided advanced and basic life support care to
patients being transported in an ambulance. Claimant described
his job duties as follows:
As a paramedic working for Mercy we were to
provide care regardless of what scale it was.
We worked accidents, heart attacks, strokes,
that type of thing. We would start IV's,
start oxygen therapy, patient assessments.
We would give medications as dictated in the
field under . . . protocols and most of the
time we didn't even have to contact a
physician. We would draw blood, we analyze
like blood sugars, bandage wounds, gunshots
. . . .
Both claimant and his partner also drove the ambulance.
During this same time period, claimant also worked as an
unlicensed clinician 1 at Children's Hospital of the King's
Daughters (Children's Hospital). As a clinician in the emergency
room, claimant's duties included: weighing patients; taking
1
According to claimant, a "licensed clinician" is a licensed
practical nurse, and an "unlicensed clinician" is a paramedic.
However, both positions carry out the same duties. Claimant
testified as follows:
Q. Do the [licensed practical nurses] and
the paramedics, who worked as clinicians
at Children's Hospital, perform the same
job duties.
A. Yes, they did.
Q. And were they supervised by nurses and
doctors?
A. Nurses and doctors, yes.
Q. And they perform all those job duties in
the emergency department, correct?
A. Yes.
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vital signs, including pulse, respiration and blood pressure;
drawing blood samples; starting IVs; administering respiratory
treatments; assisting with heart monitors; and performing nasal
washings and urine catheterizations. 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."
At the time claimant executed the memorandum of agreement,
he was unaware that his job at Children's Hospital could be
considered as similar employment in computing his average weekly
wage. Accordingly, on August 21, 1997, claimant filed an
application requesting that the commission retroactively modify
his average weekly wage to include his wages from Children's
Hospital. Claimant also sought an award of permanent partial
disability benefits based upon a five percent rating to his lower
left extremity.
In its opinion, the commission found "substantial overlap in
the specific duties and skills required of both jobs. The
claimant's primary mission for both employers was emergency
medical services." As a result, the commission found substantial
similarity between the two jobs for the purpose of computing
claimant's average weekly wage. Additionally, claimant provided
a valid explanation for his delay in seeking a modification of
the award and employer failed to show any prejudice. Therefore,
applying the doctrine of imposition, the commission retroactively
modified claimant's average weekly wage to include his employment
at Children's Hospital and changed the amount from $512.99 to
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$820.31 per week. Finally, the commission found that claimant
sufficiently established a loss of function in his left leg.
In the case at bar, Dr. Kerner reported
deficits in the claimant's range of motion,
and paresthesias. He also referred to a
functional limitation caused by the
claimant's leg problem. The claimant
testified to "extreme pain and numbness down
the left leg," and stated that the leg "kind
of goes out from under me if I don't watch
it."
Although the commission concluded that claimant had proved a loss
of function in his left leg, it denied permanent partial
disability benefits because claimant failed to prove that he had
reached maximum medical improvement.
II. CLAIMANT'S AVERAGE WEEKLY WAGE
On appeal, employer first argues that the commission erred
in finding that claimant's two employments were substantially
similar. Employer contends that while the positions at Mercy
Tidewater and Children's Hospital were "medically related," the
duties of each job were different and, therefore, claimant's
wages at Children's Hospital should not be included when
computing his average weekly wage. We disagree.
The findings of the commission, if based upon credible
evidence, are conclusive and binding upon this Court. See Code
§ 65.2-706; Falls Church Constr. Co. v. Laidler, 254 Va. 474,
478-79, 493 S.E.2d 521, 524 (1997); Southern Express v. Green, 26
Va. App. 439, 445, 495 S.E.2d 500, 503 (1998).
The commission computes workers' compensation benefits on
the basis of the employee's "average weekly wage." Code
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§ 65.2-101. 2 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, Workers' Compensation Law
§ 60.31 (1997). 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. 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,
2
The Workers' Compensation Act 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 . . . ." Code
§ 65.2-101.
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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 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 he provided "advance life support and
basic life support care to patients" at Mercy Tidewater. As a
paramedic, he performed patient assessments, started IVs, started
oxygen therapy, administered medications according to protocol,
drew blood, and bandaged wounds. At Children's Hospital,
claimant worked as an unlicensed clinician in the emergency room,
taking vital signs, weighing patients, administering oxygen,
drawing blood, starting IVs, giving respiratory care, and
performing nasal washings and catheterizations. Claimant
testified that his duties at Children's Hospital were the same as
those at Mercy Tidewater. 3 "The only difference was, the
patients were smaller [at Children's Hospital] and they were in a
hospital setting."
Moreover, the commission specifically found that "claimant's
primary mission for both employers was emergency care services."
(Emphasis added). Although the jobs were performed in different
settings (i.e., an ambulance versus an emergency room), the
3
Claimant's testimony about his duties at Children's
Hospital is further bolstered by the "Job Description" of the
unlicensed clinician, which was in the record before the
commission.
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employments were of the same general class. 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"); 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").
Credible evidence supports the commission's finding that
claimant's employment at Children's Hospital was substantially
similar to his employment at Mercy Tidewater. Accordingly, we
affirm the commission's conclusion that claimant's two
employments were substantially similar for purposes of computing
claimant's average weekly wage. See Code § 65.2-706; Laidler,
254 Va. at 478-79, 493 S.E.2d at 524; Green, 26 Va. App. at 445,
495 S.E.2d at 503.
Next, we address employer's argument that the commission
erred in modifying claimant's average weekly wage using the
doctrine of imposition. Employer contends that the evidence
failed to establish that claimant was "the victim of an
imposition of any kind" and, therefore, should not be entitled to
a modification of his average weekly wage.
It is well settled that 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
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(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.
We need not decide whether the commission erroneously
applied the doctrine of imposition. It is clear on this record
that the commission correctly modified claimant's average weekly
wage. Thus, even if the commission incorrectly applied the
doctrine of imposition, it reached the right result. See
Granados v. Windson Dev. Corp., ___ Va. ___, ____, ____ S.E.2d
___, ____ (1999) ("Since the Commission reached the correct
conclusion in denying benefits to [claimant], although it gave
the wrong reason, we sustain that conclusion and assign the right
ground set forth above."); Robbins v. Grimes, 211 Va. 97, 100,
175 S.E.2d 246, 248 (1970) ("We do not hesitate, in a proper
case, where the correct conclusion has been reached but the wrong
reason given, to sustain the result and assign the right
ground."); Beverly Health and Rehab. Serv., Inc. v. Metcalf, 24
Va. App. 584, 596, 484 S.E.2d 156, 162 (1997).
The commission held that claimant sufficiently explained his
delay in requesting a modification. Claimant testified that at
the time he executed the memorandum of agreement, he was unaware
that his job at Children's Hospital could be considered as
similar employment for purposes of computing his average weekly
wage. We hold that under these circumstances, there was a mutual
mistake of fact as to claimant's average weekly wage.
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"In determining whether a mutual mistake of fact existed at
the time of the agreement, the inquiry is not, . . . who
initially made the mistake, but rather, whether each party held
the same mistaken belief with respect to a material fact at the
time the agreement was executed." Collins, 21 Va. App. at 681,
467 S.E.2d at 283.
In the instant case, the parties initially agreed to an
average weekly wage of $512.99. At the time the parties entered
the memorandum of agreement, employer was unaware of claimant's
job with Children's Hospital. Similarly, claimant was unaware
that his concurrent employment could be used in calculating his
average weekly wage. In essence, both employer and claimant
"held the same mistaken belief" that the average weekly wage
figure of $512.99 correctly approximated the economic loss
suffered by claimant. Collins, 21 Va. App. at 681, 467 S.E.2d at
283. Had employer been aware that claimant held concurrent
employment with Children's Hospital, 4 or had claimant known that
his concurrent employment could be used in computing his average
weekly wage, the parties may have taken different positions on
the question of claimant's average weekly wage. Because a mutual
mistake of fact existed at the time the parties entered into the
memorandum of agreement, we affirm the commission's modification
of claimant's average weekly wage.
4
The fact that employer might initially have contested use
of wages earned at Children's Hospital does not establish the
absence of mistake on employer's part. The "mistake of fact" on
employer's part was its lack of knowledge of a relevant fact or
consideration affecting calculation of claimant's average weekly
wage, not the position it would assert when that fact became
known.
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III. PERMANENT PARTIAL DISABILITY
Employer next argues that the commission erred in finding
that claimant sufficiently established a loss of function to his
left leg, even though it denied benefits because claimant failed
to establish that he reached maximum medical improvement. We
hold that because claimant failed to show that he had reached
maximum medical improvement, the commission was precluded from
determining claimant's permanent loss of function. See Rusty's
Welding Serv., Inc. v. Gibson, ___ Va. App. ___, ___ S.E.2d ___,
___ (1999) (en banc). "Until the deputy or commission received
medical evidence that the injured employee attained maximum
medical improvement, the deputy was without authority to make an
award for permanent injury." Id. (citing County of Spotsylvania
v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977)).
In the present case, claimant failed to establish both
prongs necessary for an award of permanent partial disability
benefits (i.e., a ratable loss of function and that he had
reached maximum medical improvement). Thus, while the issue of
permanent partial disability was addressed by the commission, any
actual finding of permanent impairment or functional loss was
premature. Accordingly, we vacate the commission's finding, and
the issue is left open for future determination.
Affirmed in part, vacated in part.
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