COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
WESTVACO CORPORATION
MEMORANDUM OPINION * BY
v. Record No. 0697-98-2 JUDGE MARVIN F. COLE
APRIL 27, 1999
HAYWOOD J. SWEARINGEN
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Kathryn Spruill Lingle (Brenner, Dohnal,
Evans & Yoffy, P.C., on brief), for
appellant.
Robert L. Flax (Flax, Billy and Stout, on
brief), for appellee.
Westvaco Corporation (“employer”) appeals a decision of the
Workers’ Compensation Commission (“commission”) awarding
compensation to Haywood J. Swearingen (“claimant”). Employer
contends that the commission erred in (1) calculating claimant’s
average weekly wage by relying upon Employer’s First Report of
Accident and determining claimant’s reduction in overtime from
that document; (2) finding that claimant proved that he sustained
a change-in-condition causally related to his compensable March 3,
1986 and March 28, 1995 injuries by accident; and (3) ordering
that the case be remanded to the deputy commissioner if the
parties failed to file supplemental memoranda of agreement when
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
claimant’s evidence failed to establish his entitlement to
continuing compensation benefits. Finding no error, we affirm.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
So viewed, the evidence established that Employer’s First
Report of Accident (“EFR”) with respect to claimant’s March 3,
1986 injury by accident, filed with the commission on June 9,
1986, reflected that claimant earned $8.60 per hour, or the
equivalent of $344.00 for a forty-hour week. In their Memorandum
of Agreement filed with the commission on August 11, 1986, the
parties stipulated that claimant earned a pre-injury average
weekly wage (“AWW”) of $497.10, with respect to his March 3, 1986
injury by accident. Subsequently, the commission awarded claimant
compensation benefits based upon the $497.10 AWW.
Based upon the discrepancy between the EFR and the parties'
stipulated AWW, the commission, in its March 5, 1998 opinion,
inferred that claimant lost $153.10 per week in overtime (nine to
twelve hours) due to his March 1986 compensable injury.
The EFR with respect to claimant’s March 28, 1995 injury by
accident, filed by employer with the commission on August 18,
1995, reflected that claimant earned $10.64 per hour, equivalent
to $425.60 per forty-hour week. The EFR also showed that claimant
earned $755.44 per week, including overtime. At later hearings,
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including the May 1997 hearing, the parties stipulated that
claimant earned a pre-injury AWW of $755.44.
Based upon this evidence, the commission, in its March 5,
1998 opinion, inferred that claimant lost $329.84 in overtime
(fifteen to twenty hours per week) due to his March 1995
compensable injury.
Pursuant to Code § 65.2-900, employer was required to file
with the commission an EFR when claimant was injured in the course
of his employment. Employer did so for claimant’s March 3, 1986
and March 28, 1995 industrial accidents. Because the reports were
filed by employer in compliance with its statutory duty, the
commission was entitled to consider those reports as accurate
recitations of claimant’s AWW. In fact, employer did not dispute
the accuracy of the reports before the commission.
Thus, the commission did not abuse its discretion in
considering the EFRs, in conjunction with the parties’
stipulations and other credible evidence, in determining
claimant’s AWW. “Where reasonable inferences may be drawn from
the evidence in support of the commission’s factual findings, they
will not be disturbed by this Court on appeal.” Hawks v. Henrico
County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
II.
Factual findings made by the commission will be upheld on
appeal if supported by credible evidence. See James v. Capitol
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Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
Claimant filed an application alleging a change-in-condition
and seeking temporary partial disability benefits beginning May 1,
1996 on the ground that he had not been able to work the same
number of hours because of restrictions imposed upon him due to
his compensable injuries. The commission ruled that claimant
proved that he was entitled to temporary partial disability for
his reduced earnings, as compared to his pre-injury AWW, for the
March 28, 1995 left wrist injury. The period of disability was
from May 1, 1996 to August 11, 1996.
Credible evidence supports the commission’s findings. The
medical records proved that on May 1, 1996, Dr. Arthur Ryan,
claimant’s treating physician, restricted claimant to regular
duty, limited to eight hours per day, forty hours per week, as a
“permanent accommodation” due to his left wrist injury. In his
May 9, 1997 interrogatory answer, Dr. Ryan confirmed that his
treatment of claimant was for the compensable work injuries of
March 3, 1986 and March 28, 1995 and that claimant was limited to
work of eight hours per day as a result of those injuries. Dr.
H.I. Sayed released claimant to “regular work” on July 23, 1996.
Based upon this evidence of the “permanent restrictions” imposed
both before and after July 23, 1996 by the treating physicians,
the commission could reasonably conclude that “such releases to
‘regular work’ were releases subject to those restrictions.”
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Furthermore, credible evidence, including claimant’s
testimony and the EFR, established that claimant worked overtime
hours before his March 1995 compensable injury. The issue in this
case was whether claimant proved that he sustained a wage loss as
a result of Dr. Ryan’s reduction in his work hours after May 1,
1996 due to his compensable injuries. Dr. Ryan’s medical evidence
clearly proved that after May 1, 1996, claimant was restricted
from working in excess of eight hours per day, five days per week,
due to his compensable injuries. Wage records submitted by
claimant showed that he earned $7,441.43 between April 29, 1996
and August 11, 1996. Based upon claimant’s stipulated pre-injury
AWW of $755.44, the commission could reasonably infer that
claimant sustained a loss in earnings due to his injury of
$3,889.87, equivalent to a loss of $259.32 per week. 1 Because
credible evidence supports the commission’s finding that claimant
proved he sustained a wage loss between May 1, 1996 and August 11,
1996 attributable to his compensable injuries, we are bound by
that finding.
Employer argues that the evidence showed that before May 1,
1996, claimant was not earning at or above his pre-injury AWW.
That argument is irrelevant because that period of time was not
before the commission for consideration. It makes no difference
1
The stipulated pre-injury AWW of $755.44 multiplied by
fifteen weeks equals $11,333.60, the earnings possible based on
pre-injury AWW, minus $7,441.43, claimant’s actual earnings,
equals lost earnings of $3,889.87.
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whether claimant sustained a wage loss before May 1, 1996, because
he did not make a claim for benefits for that period of time. The
only issue before the commission was whether claimant sustained a
reduction in his pre-injury wages after May 1, 1996 due to his
compensable injuries.
Moreover, employer did not argue before the commission that
it erred in finding that claimant’s post-May 1, 1996 disability
was due, at least in part, to his March 28, 1995 left wrist
injury. The only argument presented by employer to the commission
concerned whether claimant had proved a loss of overtime earnings
after May 1, 1996. Accordingly, we are barred from considering
employer’s arguments on appeal regarding the cause of claimant’s
post-May 1, 1996 disability. See Rule 5A:18.
III.
Claimant produced before the commission some information
regarding his actual earnings subsequent to August 11, 1996.
However, due to a discrepancy in claimant’s hourly rate as
revealed in those records, the commission determined that it could
not ascertain the exact wage loss after August 11, 1996. As a
result, in the body of its opinion, the commission stated as
follows:
[B]ecause insufficient wage and salary
information has been provided, we can award
compensation at this time only through
August 11, 1996. The parties are encouraged
to submit a Memorandum of Agreement to
supplement the Award we make here, and to
submit quarterly Memoranda thereafter for so
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long as benefits are due and owing, pursuant
to which the Commission shall enter
appropriate awards consistent with such
agreements. If no Memorandum is forthcoming
within thirty (30) days of the date of this
Opinion, the case will be REMANDED to the
Deputy Commissioner to compel the production
of actual earnings information from the
employer, after which he shall enter an
award of benefits beginning August 12, 1996
and continuing thereafter until conditions
justify a change.
Employer contends that the commission abused its discretion
in ordering a remand, and, thereby, relieving claimant of his
burden of proof.
Our review of the commission’s opinion reveals that it did
not incorporate in its “Award” any of the language contained in
the opinion encouraging agreements or specifying a remand. The
award only provided for “compensation of $172.88 per week,
payable during temporary partial disability from May 1, 1996 to
August 11, 1996.” The award did not order a remand.
Accordingly, we will not address this issue on appeal.
For these reasons, we affirm the commission’s decision.
Affirmed.
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