Dinwiddie Co. School Board v. Delorice M. Cole

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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