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,
2
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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