COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia
DINWIDDIE COUNTY SCHOOL BOARD
OPINION BY
v. Record No. 0081-98-2 JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 3, 1998
DELORICE M. COLE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Daniel E. Lynch (S. Vernon Priddy, III;
Sands, Anderson, Marks & Miller, on brief),
for appellant.
Eileen McNeil Newkirk (Taylor, Hazen,
Kauffman & Pinchbeck, PLC, on brief), for
appellee.
Dinwiddie County School Board appeals a decision of the
Workers' Compensation Commission awarding lost wages to Delorice
M. Cole. The commission calculated average weekly wages by
combining the earnings Cole received from each of the two jobs
she held with the School Board. For the following reasons, we
affirm the commission's decision.
Neither party disputes the facts. Cole held one job as a
bus driver and a second job as a teacher's aide. She had
separate contracts for each job, and different departments of the
School Board paid her from separate budgets. She injured her
shoulder while working as a teacher's aide, but the injury
prevented her from driving her school bus. Cole filed a workers'
compensation claim for medical treatment and lost wages. The
deputy commissioner awarded no lost wages but did award
reasonable and necessary medical treatment. The deputy
commissioner ruled that the doctrine of substantially similar
employment applied. However, he found that Cole's two positions
were dissimilar and did not combine the wages from the two jobs.
Cole appealed to the commission, and it reversed the denial of
lost wages. The commission agreed that the jobs were dissimilar
but calculated Cole's average weekly wage by combining income
from both positions. The commission awarded her temporary
partial disability benefits for lost earnings.
On appeal, the School Board argues that the commission erred
by combining earnings from the two jobs. The School Board
contends the commission could combine the weekly wages only if
the jobs were similar because the substantial similarity doctrine
controls. Cole counters that the commission properly combined
the wages because the doctrine is inapplicable when the claimant
works for a single employer.
The commission sought to determine the purpose for combining
wages under the substantial similarity doctrine when the jobs are
similar but not combining them when the jobs are dissimilar. See
Creedle Sales Co., Inc. v. Edmonds, 24 Va. App. 24, 27, 480
S.E.2d 123, 124 (1997). The commission noted that workers'
compensation is designed to place the economic burden of
work-related injuries on industry and, more specifically, on the
employer. See 5 Larson, Workers' Compensation Laws § 60.31(f)
(1997). The rationale for the approach is to prevent the costs
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of injury being out of proportion to the industry's payroll or
risks. If an employee works for only one employer, the burden 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. The commission 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)
(injured claimant who worked as bus driver and as food service
worker for two employers did not have wages combined because
doing so would impose liability not necessarily assumed by the
employers).
We construe the Workers' Compensation Act liberally for the
benefit of employees and give great weight to the commission's
construction of the Act. See City of Waynesboro v. Harter, 1 Va.
App. 265, 269, 337 S.E.2d 901, 903 (1985). The substantially
similar doctrine prevents combining salaries from two separate
jobs if the jobs are not similar. The rationale for applying the
doctrine is not present when the two jobs are performed for the
same employer. The decision of the commission is in keeping with
the purpose of the Act. We give it deference because we cannot
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say it is wrong as a matter of law.
Finding no reason to disturb the commission's decision
awarding Cole lost wages based on the combined average weekly
wage of both positions, we affirm the commission's findings.
Affirmed.
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