Mercy Tidewater Ambulance Service v. Carpenter

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton ∗
Argued at Norfolk, Virginia

MERCY TIDEWATER AMBULANCE SERVICE
OPINION BY
v. Record No. 1813-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 2, 1999
BERT P. CARPENTER

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

F. Nash Bilisoly (Kelly O. Stokes;
Vandeventer Black, L.L.P., on briefs), for
appellant.

Sidney H. Kelsey, Jr., for appellee.

In this workers' compensation case, Mercy Tidewater

Ambulance Service (Mercy Tidewater) appeals the commission's

decision amending Bert Carpenter's (claimant) average weekly

wage. Employer also appeals the commission's finding that

claimant proved a loss of function in his left leg for purposes

of determining permanent partial disability benefits. For the

following reasons, we affirm in part and vacate in part.

I. BACKGROUND

On August 31, 1995, claimant suffered a compensable injury

to his back. Pursuant to a memorandum of agreement signed by the

parties, the commission entered an award on November 16, 1995,

∗
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
providing for temporary total disability benefits beginning

September 21, 1995, based upon an average weekly wage of $512.99.

At the time of his injury, claimant worked as a paramedic,

or emergency medical technician (EMT), for Mercy Tidewater. As

an EMT, he provided advanced and basic life support care to

patients being transported in an ambulance. Claimant described

his job duties as follows:

As a paramedic working for Mercy we were to
provide care regardless of what scale it was.
We worked accidents, heart attacks, strokes,
that type of thing. We would start IV's,
start oxygen therapy, patient assessments.
We would give medications as dictated in the
field under . . . protocols and most of the
time we didn't even have to contact a
physician. We would draw blood, we analyze
like blood sugars, bandage wounds, gunshots
. . . .

Both claimant and his partner also drove the ambulance.

During this same time period, claimant also worked as an

unlicensed clinician 1 at Children's Hospital of the King's

Daughters (Children's Hospital). As a clinician in the emergency

room, claimant's duties included: weighing patients; taking

1
According to claimant, a "licensed clinician" is a licensed
practical nurse, and an "unlicensed clinician" is a paramedic.
However, both positions carry out the same duties. Claimant
testified as follows:
Q. Do the [licensed practical nurses] and
the paramedics, who worked as clinicians
at Children's Hospital, perform the same
job duties.
A. Yes, they did.
Q. And were they supervised by nurses and
doctors?
A. Nurses and doctors, yes.
Q. And they perform all those job duties in
the emergency department, correct?
A. Yes.

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vital signs, including pulse, respiration and blood pressure;

drawing blood samples; starting IVs; administering respiratory

treatments; assisting with heart monitors; and performing nasal

washings and urine catheterizations. Claimant testified that his

duties at Children's Hospital were the same as those at Mercy

Tidewater. "The only difference was, the patients were smaller

[at Children's Hospital] and they were in a hospital setting."

At the time claimant executed the memorandum of agreement,

he was unaware that his job at Children's Hospital could be

considered as similar employment in computing his average weekly

wage. Accordingly, on August 21, 1997, claimant filed an

application requesting that the commission retroactively modify

his average weekly wage to include his wages from Children's

Hospital. Claimant also sought an award of permanent partial

disability benefits based upon a five percent rating to his lower

left extremity.

In its opinion, the commission found "substantial overlap in

the specific duties and skills required of both jobs. The

claimant's primary mission for both employers was emergency

medical services." As a result, the commission found substantial

similarity between the two jobs for the purpose of computing

claimant's average weekly wage. Additionally, claimant provided

a valid explanation for his delay in seeking a modification of

the award and employer failed to show any prejudice. Therefore,

applying the doctrine of imposition, the commission retroactively

modified claimant's average weekly wage to include his employment

at Children's Hospital and changed the amount from $512.99 to

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$820.31 per week. Finally, the commission found that claimant

sufficiently established a loss of function in his left leg.

In the case at bar, Dr. Kerner reported
deficits in the claimant's range of motion,
and paresthesias. He also referred to a
functional limitation caused by the
claimant's leg problem. The claimant
testified to "extreme pain and numbness down
the left leg," and stated that the leg "kind
of goes out from under me if I don't watch
it."

Although the commission concluded that claimant had proved a loss

of function in his left leg, it denied permanent partial

disability benefits because claimant failed to prove that he had

reached maximum medical improvement.

II. CLAIMANT'S AVERAGE WEEKLY WAGE

On appeal, employer first argues that the commission erred

in finding that claimant's two employments were substantially

similar. Employer contends that while the positions at Mercy

Tidewater and Children's Hospital were "medically related," the

duties of each job were different and, therefore, claimant's

wages at Children's Hospital should not be included when

computing his average weekly wage. We disagree.
The findings of the commission, if based upon credible

evidence, are conclusive and binding upon this Court. See Code

§ 65.2-706; Falls Church Constr. Co. v. Laidler, 254 Va. 474,

478-79, 493 S.E.2d 521, 524 (1997); Southern Express v. Green, 26

Va. App. 439, 445, 495 S.E.2d 500, 503 (1998).

The commission computes workers' compensation benefits on

the basis of the employee's "average weekly wage." Code

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§ 65.2-101. 2 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." Frederick Fire and Rescue v. Dodson, 20 Va. App. 440,

443, 457 S.E.2d 783, 784 (1995). "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." Id. (citing First Virginia

Banks, Inc. v. McNeil, 8 Va. App. 342, 343, 381 S.E.2d 357, 358

(1989)). This rule, also termed the dissimilar employment rule,

"is alive and well in workers' compensation law." Uninsured

Employer's Fund v. Thrush, 255 Va. 14, 21, 496 S.E.2d 57, 60

(1998).

The term "similar" in this context may relate to the

similarity of: (1) the work, (2) the industry in which the work

is performed, or (3) the degree of hazard to which the employee

is exposed. See generally 5 A. Larson, Workers' Compensation Law

§ 60.31 (1997). In determining whether two jobs are

"substantially similar," we look to the following: (1) "the

duties and skills" of each job, and (2) "the primary mission" of

the employee on each job. Dodson, 20 Va. App. at 444-45, 457

S.E.2d at 785. "In every situation where the commission is asked

to determine whether two or more jobs are substantially similar,

2
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.

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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." Creedle Sales Co. v. Edmonds, 24 Va. App. 24, 28,

480 S.E.2d 123, 125 (1997).

In the instant case, the commission found that claimant's

jobs at Mercy Tidewater and Children's Hospital had "a

substantial overlap in the specific duties and skills . . . ."

Claimant testified that he provided "advance life support and

basic life support care to patients" at Mercy Tidewater. As a

paramedic, he performed patient assessments, started IVs, started

oxygen therapy, administered medications according to protocol,

drew blood, and bandaged wounds. At Children's Hospital,

claimant worked as an unlicensed clinician in the emergency room,

taking vital signs, weighing patients, administering oxygen,

drawing blood, starting IVs, giving respiratory care, and

performing nasal washings and catheterizations. Claimant

testified that his duties at Children's Hospital were the same as

those at Mercy Tidewater. 3 "The only difference was, the

patients were smaller [at Children's Hospital] and they were in a

hospital setting."

Moreover, the commission specifically found that "claimant's

primary mission for both employers was emergency care services."
(Emphasis added). Although the jobs were performed in different

settings (i.e., an ambulance versus an emergency room), the

3
Claimant's testimony about his duties at Children's
Hospital is further bolstered by the "Job Description" of the
unlicensed clinician, which was in the record before the
commission.

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employments were of the same general class. Both positions

focused on providing emergency care services to patients. Cf.

Dodson, 20 Va. App. at 445, 457 S.E.2d at 785 (finding that

emergency medical technician and firefighter-paramedic were of

the same general class of "emergency/rescue"); Edmonds, 24 Va.

App. at 28-29, 480 S.E.2d at 125 (finding that

plumbing/pipe-fitting and mechanic work were of the same "primary

mission").

Credible evidence supports the commission's finding that

claimant's employment at Children's Hospital was substantially

similar to his employment at Mercy Tidewater. Accordingly, we

affirm the commission's conclusion that claimant's two

employments were substantially similar for purposes of computing

claimant's average weekly wage. See Code § 65.2-706; Laidler,

254 Va. at 478-79, 493 S.E.2d at 524; Green, 26 Va. App. at 445,

495 S.E.2d at 503.

Next, we address employer's argument that the commission

erred in modifying claimant's average weekly wage using the

doctrine of imposition. Employer contends that the evidence

failed to establish that claimant was "the victim of an

imposition of any kind" and, therefore, should not be entitled to

a modification of his average weekly wage.

It is well settled that an employee's average weekly wage,

even after being agreed to by the parties and set forth in an

award of the commission, is subject to modification upon the

grounds of fraud, misrepresentation, mistake or imposition. See

John Driggs Co. v. Somers, 228 Va. 729, 734, 324 S.E.2d 694, 697

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(1985); Collins v. Dept. of Alcoholic Beverage Control, 21 Va.

App. 671, 679-80, 467 S.E.2d 279, 283, aff'd on reh'g en banc, 22

Va. App. 625, 472 S.E.2d 287 (1996). It is immaterial whether

the mistake of fact is mutual or unilateral. See Collins, 21 Va.

App. at 680, 467 S.E.2d at 283.

We need not decide whether the commission erroneously

applied the doctrine of imposition. It is clear on this record

that the commission correctly modified claimant's average weekly

wage. Thus, even if the commission incorrectly applied the

doctrine of imposition, it reached the right result. See

Granados v. Windson Dev. Corp., ___ Va. ___, ____, ____ S.E.2d

___, ____ (1999) ("Since the Commission reached the correct

conclusion in denying benefits to [claimant], although it gave

the wrong reason, we sustain that conclusion and assign the right

ground set forth above."); Robbins v. Grimes, 211 Va. 97, 100,

175 S.E.2d 246, 248 (1970) ("We do not hesitate, in a proper

case, where the correct conclusion has been reached but the wrong

reason given, to sustain the result and assign the right

ground."); Beverly Health and Rehab. Serv., Inc. v. Metcalf, 24
Va. App. 584, 596, 484 S.E.2d 156, 162 (1997).
The commission held that claimant sufficiently explained his

delay in requesting a modification. Claimant testified that at

the time he executed the memorandum of agreement, he was unaware

that his job at Children's Hospital could be considered as

similar employment for purposes of computing his average weekly

wage. We hold that under these circumstances, there was a mutual

mistake of fact as to claimant's average weekly wage.

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 "In determining whether a mutual mistake of fact existed at

the time of the agreement, the inquiry is not, . . . who

initially made the mistake, but rather, whether each party held

the same mistaken belief with respect to a material fact at the

time the agreement was executed." Collins, 21 Va. App. at 681,

467 S.E.2d at 283.

In the instant case, the parties initially agreed to an

average weekly wage of $512.99. At the time the parties entered

the memorandum of agreement, employer was unaware of claimant's

job with Children's Hospital. Similarly, claimant was unaware

that his concurrent employment could be used in calculating his

average weekly wage. In essence, both employer and claimant

"held the same mistaken belief" that the average weekly wage

figure of $512.99 correctly approximated the economic loss

suffered by claimant. Collins, 21 Va. App. at 681, 467 S.E.2d at

283. Had employer been aware that claimant held concurrent

employment with Children's Hospital, 4 or had claimant known that

his concurrent employment could be used in computing his average

weekly wage, the parties may have taken different positions on

the question of claimant's average weekly wage. Because a mutual

mistake of fact existed at the time the parties entered into the

memorandum of agreement, we affirm the commission's modification

of claimant's average weekly wage.

4
The fact that employer might initially have contested use
of wages earned at Children's Hospital does not establish the
absence of mistake on employer's part. The "mistake of fact" on
employer's part was its lack of knowledge of a relevant fact or
consideration affecting calculation of claimant's average weekly
wage, not the position it would assert when that fact became
known.

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 III. PERMANENT PARTIAL DISABILITY

Employer next argues that the commission erred in finding

that claimant sufficiently established a loss of function to his

left leg, even though it denied benefits because claimant failed

to establish that he reached maximum medical improvement. We

hold that because claimant failed to show that he had reached

maximum medical improvement, the commission was precluded from

determining claimant's permanent loss of function. See Rusty's

Welding Serv., Inc. v. Gibson, ___ Va. App. ___, ___ S.E.2d ___,

___ (1999) (en banc). "Until the deputy or commission received

medical evidence that the injured employee attained maximum

medical improvement, the deputy was without authority to make an

award for permanent injury." Id. (citing County of Spotsylvania

v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977)).

In the present case, claimant failed to establish both

prongs necessary for an award of permanent partial disability

benefits (i.e., a ratable loss of function and that he had

reached maximum medical improvement). Thus, while the issue of

permanent partial disability was addressed by the commission, any

actual finding of permanent impairment or functional loss was

premature. Accordingly, we vacate the commission's finding, and

the issue is left open for future determination.
Affirmed in part, vacated in part.

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