COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements
Argued at Alexandria, Virginia
FEDERAL MOGUL FRICTION CORPORATION AND
TRAVELERS INSURANCE COMPANY
MEMORANDUM OPINION* BY
v. Record No. 2520-02-4 JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 16, 2003
GERALD WAYNE BUTCHER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
J. David Griffin (Fowler Griffin Coyne
Coyne & Patton, P.C., on briefs), for
appellants.
Nikolas E. Parthemos (Parthemos & Bryant,
P.C., on brief), for appellee.
Federal Mogul Friction Corporation and Travelers Insurance
Company (collectively, employer) appeal an award by the Workers'
Compensation Commission (commission) of temporary partial
disability benefits to Gerald Wayne Butcher (claimant) upon his
change-in-condition application. Employer contends the
commission erred in failing to use a fifty-two-week average of
claimant's post-injury earnings to compute claimant's temporary
partial disability rate. Finding no error, we affirm the
commission's judgment.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of
the proceedings as are necessary to the parties' understanding
of the disposition of this appeal.
I. BACKGROUND
The relevant facts in this appeal are not in dispute. On
January 8, 2001, claimant sustained a right shoulder injury
arising out of and in the course of his employment with
employer. Employer accepted the injury as compensable.
Claimant suffered no loss in wages until April 23, 2001, when he
had surgery on the shoulder. As a result of the surgery,
claimant was out of work from April 23, 2001, through June 4,
2001. The parties entered into an agreement providing for
temporary total disability benefits and agreed that claimant's
pre-injury average weekly wage was $983.58. Based on that
agreement, the commission awarded claimant temporary total
disability benefits for that period.
Upon returning to light duty work on June 5, 2001, claimant
suffered no wage loss and, in fact, by working overtime, earned
more on average each week than his pre-injury average weekly
wage, until September 17, 2001, when he was transferred from his
maintenance job to a production job. Less overtime was
available in the production job, and claimant's pay decreased as
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a result.1 The wage reports in evidence established that from
September 17, 2001, through February 10, 2002, claimant earned
less than the agreed upon pre-injury average weekly wage of
$983.58 for at least seventeen of the twenty-one weeks in that
period. The wage reports further established that after
February 25, 2002, claimant earned less than the agreed upon
pre-injury average weekly wage for both of the weeks reported.
Because on average his earnings each week were substantially
below his pre-injury average weekly wage as a consequence of the
job transfer, claimant filed a change-in-condition application,
seeking temporary partial disability benefits for the period
September 17, 2001, through February 10, 2002, and the period
beginning February 25, 2002, and continuing thereafter.2
After holding an evidentiary hearing on March 20, 2002, the
deputy commissioner ruled that claimant was "entitled to
temporary partial disability compensation for the periods he was
unable to earn his pre-injury average weekly wage." After
considering the parties' arguments regarding calculation of
claimant's post-injury average weekly wage, the deputy
commissioner further ruled as follows:
1
Claimant testified that he worked all the overtime that
was offered, with the exception of one day, and that he would
work more overtime if it were offered.
2
Claimant was totally disabled from February 11, 2002,
through February 24, 2002, and received temporary total
disability benefits for that period.
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We agree with the claimant, and conclude
that his post-injury average weekly wage for
purposes of any temporary partial disability
compensation should be calculated
prospectively based on his actual reduced
earnings. Based on the wage information
submitted by the employer, we conclude that
the claimant's post-injury average weekly
wage for the period from September 17, 2001,
through February 10, 2002, is $775.04, said
sum representing the total of his wages
during that time period ($16,275.89) divided
by the 21 weeks in the period.
Significantly less wage documentation exists
in the record for calculation of the
post-injury average weekly wage for the
continuing period commencing February 25,
2002, but the available wage information
indicates that the claimant's average weekly
wage at that time was $596.60.
The deputy commissioner calculated claimant's post-injury
average weekly wage for the period beginning February 25, 2002,
and continuing thereafter by averaging claimant's total earnings
($1,193.20) for the two-week period for which pay records were
available between February 25, 2002, and the hearing on March
20, 2002. The record, held open for seven days after the
hearing for the parties to confirm this average weekly wage
calculation, closed on March 27, 2002. No additional evidence
was presented. An award was entered based on these
calculations.
By opinion issued August 28, 2002, the commission affirmed
the ruling of the deputy commissioner, finding that computing
claimant's post-injury average weekly wage by averaging
claimant's earnings over fifty-two weeks, as advocated by
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employer, would unfairly deprive claimant of temporary partial
disability benefits to which he was entitled under the Workers'
Compensation Act.
This appeal followed.
II. ANALYSIS
The sole issue on appeal is whether, for purposes of
computing claimant's temporary partial disability benefits, the
commission erred in calculating claimant's post-injury average
weekly wage.
Employer contends the method used by the commission to
calculate claimant's post-injury average weekly wage was
improper because it was not the same fifty-two-week-average
method used to calculate claimant's pre-injury average weekly
wage. Employer argues that, just as fluctuations in earnings
are averaged to determine pre-injury average weekly wages
pursuant to Code § 65.2-101, the same method for determining
compensation benefits must be applied post-injury. In this
case, employer's argument continues, the commission's method of
basing the calculation of claimant's post-injury average weekly
wage solely on his diminished wages following his transfer to
the production department, rather than on his total earnings
over fifty-two weeks following the injury, unjustly enriched
claimant because employer was not credited for those weeks in
which claimant's earnings exceeded his pre-injury average weekly
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wage. Thus, employer concludes, the commission's "piecemeal
selection of earnings" was unfair and improper. We disagree.
In reviewing the commission's decision, we view the
evidence in the light most favorable to the party prevailing
before the commission. See Allen & Rocks, Inc. v. Briggs, 28
Va. App. 662, 672, 508 S.E.2d 335, 340 (1998). The commission's
factual findings are conclusive and binding on appeal if
supported by credible evidence in the record. Southern Iron
Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34
(1993).
As employer acknowledges in its brief, temporary partial
disability benefits are intended to compensate an employee for
the decrease in his earnings attributable to a compensable
injury. See Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.
435, 441, 339 S.E.2d 570, 573 (1986). Code § 65.2-502 provides
that the compensation to be paid by an employer to an injured
employee during the employee's partial incapacity for work is
"66 2/3 percent of the difference between [the employee's]
average weekly wages before the injury and the average weekly
wages which [the employee] is able to earn thereafter."
(Emphasis added.) In Pilot Freight Carriers, Inc., we observed
that
[t]he extent of earning capacity must be
ascertained from the evidence, and as such
is not limited to any special class of
proof. All legal facts and circumstances
surrounding the claim should properly be
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considered and due weight given them by the
[c]ommission.
It [is] the duty of the [c]ommission to
make the best possible estimate of . . .
impairments of earnings from the evidence
adduced at the hearing, and to determine the
average weekly wage . . . . This is a
question of fact to be determined by the
[c]ommission which, if based on credible
evidence, will not be disturbed on appeal.
Id. (citation omitted). "Thus, if credible evidence supports
the commission's findings regarding the claimant's average
weekly wage, we must uphold those findings." Chesapeake Bay
Seafood House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864,
866 (1992).
This case came before the commission on claimant's
change-in-condition application for temporary partial disability
benefits following the reduction in his earnings on September
17, 2001, when he was transferred by employer to a different
light duty job. For purposes of temporary partial disability
compensation, claimant suffered no wage loss before the transfer
and was, thus, not entitled to such compensation prior to the
job transfer. See Lam v. Kawneer Co., Inc., 38 Va. App. 515,
518, 566 S.E.2d 874, 875-76 (2002) (holding that a compensable
injury without a loss of earnings does not entitle a claimant to
compensation). As a result of the job transfer, however,
claimant's earnings were substantially below his pre-injury
average weekly wage, and the commission concluded he was
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entitled to temporary partial disability benefits because of the
diminution in his earnings.
In considering the question of how claimant's post-injury
average weekly wage should be determined, the commission found
that it would be unfair to average claimant's earnings over
fifty-two weeks, as proposed by employer. Rather, the
commission found that averaging claimant's earnings
"prospectively[,] based on his actual reduced earnings" from the
date the decrease in wages occurred constituted the best and
fairest indication of claimant's partial wage loss. Thus, the
commission based its first award of temporary partial disability
benefits on the weekly average of claimant's post-injury
earnings from September 17, 2001, the date claimant's wages
decreased, through February 10, 2002, when claimant's temporary
total disability commenced, and its second award on the weekly
average of claimant's post-injury earnings from February 25,
2002, the commencement of the current, continuing period of
temporary partial disability, through March 27, 2002, the day
the evidentiary record in the case closed.
Credible evidence supports the commission's findings, and
the findings are not inconsistent with the provisions of Code
§ 65.2-502.3 The pay records indicate that, between September
3
Indeed, contrary to employer's contention, no language in
Code § 65.2-502 requires that, in order to calculate an injured
employee's post-injury average weekly wage for purposes of
awarding temporary partial disability benefits commencing on a
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17, 2001, and February 10, 2002, claimant earned less than the
agreed upon pre-injury average weekly wage of $983.58 for at
least seventeen of the twenty-one weeks in that period. The pay
records further indicate that, after February 25, 2002, claimant
earned less than the agreed upon pre-injury average weekly wage
for both of the weeks reported. To calculate claimant's
post-injury average weekly wage using the method proposed by
employer would have deprived claimant of compensation for the
periods at issue during which his earnings were substantially
less than his pre-injury average weekly wage. Thus, the
commission, as fact finder, was entitled to reject employer's
argument that, for purposes of computing claimant's temporary
partial disability rate, claimant's post-injury average weekly
wage should be calculated by averaging claimant's earnings over
fifty-two weeks.
Because they are supported by credible evidence in the
record, the commission's findings regarding claimant's
post-injury average weekly wage are conclusive and binding on
appeal. Accordingly, we affirm the commission's decision.
Affirmed.
particular date, the commission must average the employee's
post-injury earnings over fifty-two weeks.
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