COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia
CREEDLE SALES COMPANY, INC. and
ERIE INSURANCE COMPANY
OPINION BY
v. Record No. 1041-96-2 JUDGE SAM W. COLEMAN III
JANUARY 21, 1997
JESSE WAYNE EDMONDS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Lori Morris Whitten (Morris and Morris, on
brief), for appellants.
B. Mayes Marks, Jr. (B. Mayes Marks, Jr.,
P.C., on brief), for appellee.
In this appeal from the Workers' Compensation Commission, we
decide whether the claimant's two jobs were sufficiently similar
to warrant combining his salary from both jobs in calculating his
average weekly wage. We find that the jobs were substantially
similar; thus, we affirm the commission's decision.
Jesse Wayne Edmonds (claimant) suffered a compensable injury
by accident on March 11, 1991 while working for Creedle Sales
Company, Inc. (employer). The employer stipulated that the
claimant was entitled to compensation and paid temporary total
disability benefits from March 18, 1991 to the present. The
claimant requested a hearing, alleging that the compensation
benefits should be based upon his combined wages earned at
Creedle Sales and his second job with C. C. Powell & Sons
(Powell). He asserts that his duties in both jobs, from which he
is disabled, were substantially similar.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. R. G. Moore Bldg. Corp v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The
claimant, who was a part-time employee, had worked for Creedle
Sales for approximately eight and one-half weeks when he was
injured. His work at Creedle involved preparing used cars for
resale. Among his duties were changing batteries, hoses, and fan
belts, checking transmissions, and doing minor auto repairs.
Additionally, the claimant did a substantial amount of plumbing
work for Creedle. The plumbing work included repairing and
replacing broken water pipes, installing several new water
storage tanks and numerous faucets, and installing a pressurized
water storage tank and a hot water heater. The claimant
estimated that, of the eight and one-half weeks he worked for the
employer, he spent "a week or two" doing plumbing work.
The claimant worked full-time for Powell as a plumber. He
testified that his job with Powell included:
Plumbing, installation of new plumbing and
repair plumbing and repair heating service,
electrical work. In the -- when we were --
if the work was caught up on the plumbing,
we'd do mechanical work and service work,
maintenance on the trucks, changing the oil,
the tires, rotate brakes, new exhaust
systems, et cetera.
The current owner of C. C. Powell & Sons testified that the
claimant worked primarily as a plumber and pipe fitter but
occasionally did mechanical maintenance and repair work.
- 2 -
The deputy commissioner found that the claimant's jobs were
not sufficiently similar to justify combining the wages in
calculating his average weekly wage. The claimant appealed to
the full commission, which reversed the deputy and held that the
jobs were substantially similar and awarded benefits based on an
average weekly wage of the combined salaries.
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. 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.
See First Virginia Banks, Inc. v. McNeil, 8 Va. App. 342, 343,
381 S.E.2d 357, 358 (1989); Hudson v. Arthur Treachers, 2 Va.
App. 323, 326, 343 S.E.2d 97, 99 (1986). "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." County of Frederick Fire
and Rescue v. Dodson, 20 Va. App. 440, 443, 457 S.E.2d 783, 784
(1995).
The employer contends that the commission erred by applying
the "substantially similar" rationale enunciated in Dodson
because the Dodson test applies only where "all of a claimant's
duties and skills in one job are utilized in the other job, which
- 3 -
has a wider scope of employment . . . ." Id. at 445, 457 S.E.2d
at 785 (emphasis added). We disagree.
Contrary to the employer's assertion, Dodson does not
represent a new or different approach to determining whether two
jobs are substantially similar. Instead, Dodson merely holds
that, if the two jobs are of the same general class or nature,
the wages may be combined even though all the duties of each job
are not identical. Id. at 444, 457 S.E.2d at 785.
This approach does not differ from the rationale which the
commission applied prior to the Dodson decision. The commission
has previously stated:
we do feel that the Commission in applying
[the dissimilar employment rule] must
recognize that there are no two jobs which
are exactly alike, and while there may be
some additional duties which are not so
similar, this should not result in refusing
to allow a combination of the wages from both
employments as the entire spectrum of the
duties should be considered.
Hall v. American Janitor Serv., 61 O.I.C. 172 (1982). Dodson
does not depart from that approach. Furthermore, the holding in
Dodson is not limited merely to those situations where all of an
employee's duties and skills are utilized in another job having a
wider scope of employment. In every situation where the
commission is asked to determine whether two or more jobs are
substantially similar, 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.
- 4 -
Apparently, because of language in Dodson referring to the
"primary mission" of an employee in both jobs, the commission
concluded that it had to determine which of an employee's duties
is the "primary mission." As a result, the commission determined
that the claimant's "primary mission" in his job for Creedle was
that of a plumber/pipe fitter. However, the preponderance of the
evidence indicates that his primary responsibility in his job
with Creedle was as a mechanic, even though he also had
substantial responsibility as a plumber/pipe fitter.
The commission apparently construed the language in Dodson
referring to "primary mission" to mean that the fact finder must
determine or isolate the employee's single most important job
responsibility. However, the language in Dodson referring to
"primary mission" is much broader. The language was intended to
focus upon the scope or general nature of a person's employment
and to recognize that an employee's "primary mission" may involve
several responsibilities. For example, here the claimant's
"primary mission" in both jobs entailed significant duties as a
mechanic and as a plumber/pipe fitter.
The claimant's part-time job with Creedle was substantially
similar to his full-time job with Powell. His plumbing
activities at Creedle, although secondary to his job as "prep
mechanic," were more than isolated or incidental job
responsibilities. He did plumbing work for "a week or two" out
of the eight and one-half weeks he worked for Creedle as a
- 5 -
mechanic. Similarly, his responsibilities as a mechanic at
Powell involved more than a single or isolated auto repair. The
claimant testified that he was hired by Powell as a plumber/pipe
fitter because he had mechanical skills in addition to plumbing
skills. Moreover, a significant part of his job entailed
performing maintenance on Powell's trucks whenever the plumbing
work was slow.
Although the primary duty on one was secondary duty on the
other, that fact does not mean that the employee had a different
"primary mission" in the two employments. The claimant's skills
as a plumber and as a mechanic were utilized substantially in
both jobs. The fact that he may have done more plumbing work in
one job than in the other makes no difference. Overall, the
claimant did significant amounts of plumbing and mechanical work
in both jobs; therefore, both jobs were substantially similar.
Thus, the commission correctly combined both salaries in
calculating his average weekly wage. Accordingly, we affirm the
award of the commission.
Affirmed.
- 6 -