Susan Elaine Mavity v. Sugar 'N Spice, etc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
SUSAN ELAINE MAVITY
MEMORANDUM OPINION * BY
v. Record No. 0763-95-1 JUDGE WILLIAM H. HODGES
JANUARY 30, 1996
SUGAR 'N SPICE/GREEN FROG CORPORATION
AND
INSURANCE COMPANY OF NORTH AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Stephen Strickler (McCardell & Inman, P.L.C., on
briefs), for appellant.
Lisa Frisina Clement (Law Offices of E. Wayne Powell,
on brief), for appellees.
Susan E. Mavity (claimant) appeals from an opinion of the
Virginia Workers' Compensation Commission. She contends that the
commission erred in calculating her average weekly wage to be
$67.24. We agree and reverse and remand.
"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 or death." Bosworth v. 7-Up Distrib. Co., 4 Va. App. 161,
163, 355 S.E.2d 339, 340-341 (1987). Code § 65.2-101(1)(b)
provides that "[w]hen for exceptional reasons" the general rules
for computing average weekly wage "would be unfair . . . such
other method . . . may be resorted to as will most nearly
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
approximate the amount which the injured employee would earn were
it not for the injury." The commission has the duty of making
the best possible estimate of future impairments of earnings from
the evidence adduced at the hearing, and to determine the average
weekly wage that the claimant was able to earn. Chesapeake Bay
Seafood House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864,
866 (1992) (citing Pilot Freight Carriers, Inc. v. Reeves, 1 Va.
App. 435, 441, 339 S.E.2d 570, 573 (1986)).
The claimant had worked for Sugar 'N Spice for only sixteen
weeks. The commission properly found that the average weekly
wage could not be determined under the general rule and properly
resorted to "such other method of computing the average weekly
wage" as would approximate the amount the claimant would have
earned but for the injury.
The evidence in this case diverged widely on the issue of
claimant's average weekly wage before and after her job-related
accident. Claimant explained that she worked as a waitress and
house dancer between March and July 1993. Claimant often worked
more than one eight hour shift per day and often worked seven
days per week. Claimant split her time between the two
positions, sometimes spending as much as fifty percent of her
time dancing.
Both parties agree claimant earned a base salary of ten
dollars per shift. However, this ten dollar figure was augmented
by customers' tips, which were significantly greater when
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claimant danced. Claimant kept detailed notes of her tip
earnings, which she introduced at the hearing. Claimant figured
that she earned an average of $722.75 per week before her injury,
based on her total earnings combining base salary plus tips.
Claimant calculated that she earned $2,775 in April 1993 and
$2,891 in May 1993. Claimant calculated that after her injury on
June 8, 1993, her earnings fell to $1,710 in June 1993 and $1,682
in July 1993. According to claimant, employer had no formal
system for employees to report their tips, although at the end of
every night, employees "tipped out," giving bartenders ten
percent of their tips earnings. Employer's bartender asserted
that claimant, when "tipping out," gave her over ten dollars only
three or four times in sixteen weeks. By implication, this meant
claimant earned over $100 per shift on three or four occasions.
Employer provided employee with a W-2 form for 1993, which
indicated claimant earned $1,075.95 between March and July 1993.
However, the W-2 form merely reflected claimant's base wages,
and did not include her tips. As of the deputy commissioner's
hearing on June 9, 1994, claimant had not filed her 1993 tax
return, but instead had filed for an extension. Other evidence
adduced at the deputy commissioner's hearing showed employer
wrote a letter to help secure car financing for claimant, in
which employer stated claimant earned $1,400 per month, which is
approximately $323 per week. Tammy Stocks, claimant's co-worker,
testified she herself earned approximately $450 to $500 per week
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during May and June of 1993, working five or six nights per week.
We agree with the commission that "the evidence regarding
the claimant's average weekly wage cannot be reconciled. If we
relied on any one piece of evidence exclusively, the wage could
vary between less than $100 per week and $700 per week."
However, this Court only upholds the commission's findings
regarding a claimant's average wages if the findings are
supported by credible evidence. Clements, 14 Va. App. at 146,
415 S.E.2d at 866. Here, the commission did not rely on credible
evidence in concluding that the "best evidence of the claimant's
average weekly wage" was $67.24 per week, a figure obtained by
dividing claimant's W-2 salary figure by sixteen weeks. The
commission improperly relied on the W-2 form supplied by
employer, which did not reflect tips earned by claimant.
Additionally, by the credit letter the employer admitted that
claimant earned "in excess of $1400.00 per month." Thus, the
"best" evidence is that claimant's average weekly wage was, at a
minimum, based on a monthly income of $1400. The commission
erred in disregarding the employer's admission.
For these reasons, we reverse and remand the cause to the
commission for a re-determination of a weekly wage based on an
income of not less than $323 per week.
Reversed and remanded.
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