Ellen Kaye, Inc.&Montgomery Mut.Ins.v Wigglesworth , 34 Va. App. 390 ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Willis and
Senior Judge Overton
Argued at Alexandria, Virginia
ELLEN KAYE, INC. AND
MONTGOMERY MUTUAL INSURANCE COMPANY
OPINION BY
v. Record No. 1427-00-4 JUDGE NELSON T. OVERTON
FEBRUARY 27, 2001
THOMAS CLARKE WIGGLESWORTH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James Richard Ryan, Jr. (Susan A. Evans;
Siciliano, Ellis, Dyer & Boccarosse, on
brief), for appellants.
John B. Delaney (Delaney, McCarthy, Colton &
Botzin, P.C., on brief), for appellee.
Ellen Kaye, Inc. and its insurer (hereinafter referred to
as "employer") appeal a decision of the Workers' Compensation
Commission awarding compensation to Thomas Clarke Wigglesworth
(claimant). Employer contends the commission erred in
calculating claimant's average weekly wage as $793.45. Finding
no error, we affirm.
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 proved that claimant began
performing landscaping work for employer in the spring of 1987.
Beginning in November 1987, claimant worked for employer
installing Christmas decorations for various businesses. The
Christmas decoration work normally began in November and ended
in mid-January. From mid-January until October, claimant
performed landscaping work for employer.
On January 24, 1995, claimant was laid off from his
employment because employer eliminated its landscaping division
and could not provide claimant with year-round work.
Claimant was not immediately able to find other work and,
therefore, received unemployment compensation for two months.
In April 1995, claimant found a job with another company
performing landscaping work. At the end of October 1995,
claimant received a letter from Howell Jewell, employer's
executive vice-president and CEO, requesting that claimant
return to work for employer installing seasonal Christmas
decorations. As a result, claimant quit his job with his new
employer.
On November 3, 1995, claimant began performing the
Christmas decoration work for employer. Claimant was injured on
December 15, 1995, when he fell off a roof as he was repairing a
garland at a shopping center. For the seven-week period from
November 3, 1995 through December 15, 1995, claimant earned
$5,554.17 in wages from employer. On December 22, 1995,
claimant received a payment of $392 from employer entitled,
"bonus," with a net pay to him of $295.37, after deductions for
taxes.
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In determining that claimant's average weekly wage was
$793.45, the commission found as follows:
[C]laimant left the employer's employment at
the end of January 1995 for another job
because the employer left the landscaping
business. He got a job with another
employer, which resulted in a significant
gap in employment with the defendant
employer. The claimant quit this new job
and returned to the defendant employer's
decorating business in November 1995. When
he returned to the employer, he began the
seasonal decorating job. This job did not
involve decorating during certain months and
landscaping during others. The claimant
worked for the employer only as a decorator
when he was injured. This represented a
separate and distinct employment with the
defendant employer. Therefore, . . . the
average weekly wage must be based on the
claimant's earnings for the seven-week
period prior to his injury because he
planned to continue working at some other
job after the seasonable [sic] job ended as
opposed to not working after the job ended.
Additionally, the employer paid the
claimant an extra $392 on December 22, 1995.
We are not persuaded that the $392 was a
gift. While the claimant admitted that the
employer was a friend, taxes were withheld
from this payment. Clearly, the payment was
paid pursuant to the employer/employee
relationship. The Deputy Commissioner
properly considered the amount as a bonus
and incorporated it into the average weekly
wage computation.
Employer argues that the commission "should have included
all of the claimant's wages with [employer] in the fifty-two
weeks prior to the date of accident." Employer asserts that
this calculation would have required the commission to consider
claimant's earnings with employer between December 31, 1994 and
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January 28, 1995, combined with his earnings after October 1995
through the date of his injury on December 15, 1995. Employer
also contends that the $392 paid to claimant on December 22,
1995, although labeled a "bonus," was actually a "gift" and
should not have been considered in determining claimant's
average weekly wage. We disagree.
It [is] the duty of the Commission to
make the best possible estimate of future
impairments of earnings from the evidence
adduced at the hearing, and to determine the
average weekly wage . . . . This is a
question of fact to be determined by the
Commission which, if based on credible
evidence, will not be disturbed on appeal.
Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339
S.E.2d 570, 573 (1986).
"The commission is guided by statute in determining average
weekly wage." Dominion Assocs. Group, Inc. v. Queen, 17 Va.
App. 764, 766, 441 S.E.2d 45, 46 (1994). Code § 65.2-101
defines "average weekly wage" as follows:
1.a. The earnings of the injured employee
in the employment in which he was working at
the time of the injury during the period of
fifty-two weeks immediately preceding the
date of the injury, divided by fifty-two
. . . . When the employment prior to the
injury extended over a period of less than
fifty-two weeks, the method of dividing the
earnings during that period by the number of
weeks and parts thereof during which the
employee earned wages shall be followed,
provided that results fair and just to both
parties will be thereby obtained. . . .
b. When for exceptional reasons the
foregoing would be unfair either to the
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employer or employee, such other method of
computing average weekly wages may be
resorted to as will most nearly approximate
the amount which the injured employee would
be earning were it not for the injury.
(Emphasis added.) "The reason for calculating the average
weekly wage is to approximate the economic loss suffered by an
employee . . . when there is a loss of earning capacity because
of work-related injury . . . ." Bosworth v. 7-Up Distrib. Co.,
4 Va. App. 161, 163, 355 S.E.2d 339, 340 (1987).
Here, the employment in which claimant was working at the
time of his injury was seasonal Christmas decoration work, which
he performed for seven weeks before his injury. At that time,
he had not worked for employer as a landscaper for over nine
months, and employer was no longer in the landscaping business.
Claimant quit his job with the other landscaping company and
fully intended to pursue other employment once the seasonal
Christmas decorating job with employer ended in January 1996.
Under these circumstances, where the employment prior to the
injury extended over a period of less than fifty-two weeks, the
commission properly followed the method of dividing the earnings
during that period by the number of weeks claimant worked. See
Code § 65.2-101(1)(a).
It was undisputed that claimant was employed as a seasonal
Christmas decorator from November 3, 1995 through the date of
his injury. Uncontradicted and credible evidence also proved
that during that time claimant earned a total of $5,554.17,
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including his $392 bonus. Therefore, the commission did not err
in using the total of those wages divided by the seven weeks
claimant worked for employer to determine that his "average
weekly wage" was $793.45.
The commission properly included the $392 bonus in
calculating claimant's average weekly wage. The bonus was paid
to claimant after employer made deductions for taxes. The
commission found, based on credible evidence, that the bonus
constituted wages based upon the employer/employee relationship
and was not a gift, notwithstanding Jewell's testimony to the
contrary.
Because credible evidence supports the commission's
findings, we affirm its decision.
Affirmed.
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