Robinson v. SALVATION ARMY/GEORGIA CORP.

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia

VALORIE J. ROBINSON

v. Record No. 2361-94-4 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
SALVATION ARMY/THE GEORGIA CORP. JULY 18, 1995
AND LIBERTY MUTUAL FIRE
INSURANCE CO.

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

John L. Lilly, Jr., for appellant.
Lisa C. Healey (Siciliano, Ellis, Dyer & Boccarosse,
on brief), for appellees.

Valorie J. Robinson (claimant) appeals the commission's

decision denying her concurrent temporary total disability

benefits from two distinct employers for two separate work-

related injuries suffered at different times. The sole issue on

appeal is whether the commission properly limited claimant to

benefits based on the higher of her two average weekly wages in

order to prevent a double recovery and a rate of compensation in

excess of her earning capacity. Finding no error, we affirm the

commission.
BACKGROUND

On June 29, 1988, claimant injured her right ankle while

working as a recreation leader for the City of Alexandria (the

City). Claimant's average weekly wage at the time of her injury

was $326. Claimant received compensation for various periods of

disability, including June 5 to August 21, 1989 and June 11 to

June 24, 1990. On June 10, 1993, claimant underwent ankle
surgery that rendered her totally disabled, and the City agreed

to pay claimant $217.33 temporary total disability benefits

commencing June 10, 1993.

Claimant suffered an injury to her right hand while working

as director of a community center for the Salvation Army on March

20, 1990. At the time of the accident, claimant's average weekly

wage was $346.15, and she was not receiving disability benefits

from the first injury. Claimant and the Salvation Army agreed to

benefits commencing April 1, 1991, and benefits were suspended on

January 13, 1992 when claimant was released to full-time work.

On June 2, 1993, claimant had surgery on her hand, and the

Salvation Army voluntarily paid temporary total disability

benefits from June 2, 1993 to November 14, 1993.
Claimant filed an application seeking an award of continuing

temporary total disability benefits from the Salvation Army on

January 6, 1994. At that time, she was still receiving from the

City total disability benefits for the injury to her ankle. On

April 4, 1994, the City filed an application to terminate its

payment of benefits to claimant. Claimant wanted concurrent

total disability benefits from both employers, with the amount

based on the total of her two average weekly wages. The

commission found that claimant was not entitled to a "double

recovery" and held that the City was "liable only for disability

compensation attributable to the June 29, 1988 accident that

exceeds disability benefits attributable to . . . the March 20,

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1990 accident."
CONCURRENT DISABILITY BENEFITS

Claimant argues that the commission erred in denying her

concurrent total disability payments for both injuries. There is

no dispute that this is a total disability case governed by Code

§ 65.2-500.

"This Court is not bound by the legal determinations made by

the commission. '[W]e must inquire to determine if the correct

legal conclusion has been reached.'" Cibula v. Allied Fibers &

Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708, 711 (1992)

(quoting City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d

655, 657 (1965)), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).

"The purpose of the Workers' Compensation Act is to provide

compensation to an employee for the loss of his opportunity to

engage in work . . . ." Barnett v. D.L. Bromwell, Inc., 6 Va.

App. 30, 33-34, 366 S.E.2d 271, 272 (1988) (en banc). Code

§ 65.2-500 contains the formula for benefits in total disability

cases:
When the incapacity for work resulting
from the injury is total, the employer shall
pay, or cause to be paid, as hereinafter
provided, to the injured employee during such
total incapacity, a weekly compensation equal
to 66 2/3 percent of his average weekly
wages, with a minimum not less than 25
percent and a maximum of not more than 100
percent of the average weekly wage of the
Commonwealth as defined herein. In any
event, income benefits shall not exceed the
average weekly wage of the injured employee.

(Emphasis added.)

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 Claimant argues that nothing in Code § 65.2-500 prevents her

from receiving more than the total of her average weekly wage

when two employers are involved. However, Code § 65.2-500

specifically limits "income benefits . . . [to] the average

weekly wage of the injured employee." Additionally, Professor

Larson in his treatise on workers' compensation presents a

rationale to limit awards for concurrent injuries to the weekly

maximum for total disability.
[A]t a given moment in time, a person can be
no more than totally disabled. . . .
[Additionally,] if he is allowed to draw
weekly benefits simultaneously from a
permanent total and a permanent partial
award, it may be more profitable for him to
be disabled than to be well--a situation
which compensation law always studiously
avoids in order to prevent inducement to
malingering.

2 Larson, supra, § 59.41(a), at 10-561, -565, -567 (footnotes

omitted). This rationale is equally applicable in a case

involving concurrent benefits from two total disability awards.

In addressing this issue, other states with a similar

statutory maximum on total disability benefits have limited

benefits to the maximum when a claimant suffers more than one

work-related injury. See, e.g., Matney v. Newberg, 849 S.W.2d

526 (Ky. 1993); Harrison v. Lakey Foundry Corp., 106 N.W.2d 521

(Mich. 1960); Walls v. Hodo Chevrolet Co., Inc., 302 So. 2d 862

(Miss. 1974); Fischer v. State Accident Ins. Fund Corp., 711 P.2d

162 (Or. Ct. App. 1985), review denied, 717 P.2d 1182 (Or. 1986).
These cases hold that "a claimant may not, at one time, be

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compensated for more than total occupational disability because

he can, in fact, be no more than totally occupationally

disabled." Matney, 849 S.W.2d at 527. "[A] claimant may not

pyramid benefits and receive in excess of the maximum weekly

benefits provided by statute during any one period." Walls, 302

So. 2d at 867.

We hold that Code § 65.2-500 limits claimant's total

disability benefits to sixty-six and two-thirds percent of the

greater of her two average weekly wages. Claimant's argument

that Code § 65.2-500 allows her concurrent benefits based on the

total of her average weekly wages with both employers is without

merit. The purpose of workers' compensation is to provide

compensation to the injured employee who suffers a work-related

accident by continuing to pay her a wage comparable to that

earned at the time of the injury. This purpose does not justify

awarding an employee who suffers two unrelated injuries more
1
money than she has ever earned in a week.
In this case, the commission relied on the policy rationale

of Code § 65.2-506 2 to avoid double recovery when an employee
1
Claimant's average weekly wage at the time of her first
injury was $326, and her average weekly wage at the time of her
second injury was $346.15. If we were to award claimant
concurrent benefits, she would receive $448.10 per week in
benefits.
2
Code § 65.2-506 provides as follows:

If an employee receives an injury for
which compensation is payable while he is
still receiving or entitled to compensation
for a previous injury in the same employment,

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suffers two injuries in the same employment and limited

claimant's total disability benefits to compensation based on the

greater of her two average weekly wages, her wages with the

Salvation Army. Here, claimant's average weekly wage never

exceeded her Salvation Army wage, and the commission properly

awarded claimant benefits based on that wage. Additionally, the

commission's apportionment of the benefit liability between the

City and the Salvation Army is a sound division under the facts

in this case. See Donahue v. Clark Elec. Contractors, Inc., 68

O.I.C. 256 (1989) (dividing benefit liability between two

different insurers in a similar manner).

Accordingly, the decision of the commission is affirmed.

Affirmed.

he shall not at the same time be entitled to
compensation for both injuries.

Claimant argues that Code § 65.2-506 does not bar her from
receiving benefits for both injuries. The Salvation Army agrees
that Code § 65.2-506 does not control in this case but argues
that the rationale of Code § 65.2-506 bars a double recovery. In
Donahue v. Clark Elec. Contractors, Inc., 68 O.I.C. 256 (1989),
the commission held that Code § 65.2-506 was designed "to bar the
payment of compensation for successive injuries in the same work
which might result in a double recovery or at least a
compensation rate which exceeded the pre-injury average weekly
wage." Id. at 258. As in Donahue, the commission found that
Code § 65.2-506 did not apply under the facts in this case but
determined that the policy of avoiding a double recovery
justified limiting claimant's benefits to the greater of her two
average weekly wages.

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