Help Welding and Mech. Corp. v. Larry Chitty ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
HELP WELDING AND MECHANICAL CORPORATION
AND
SELECTIVE INSURANCE COMPANY OF AMERICA
MEMORANDUM OPINION *
v. Record No. 1847-97-2 PER CURIAM
FEBRUARY 10, 1998
LARRY WILSON CHITTY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Cecil H. Creasey, Jr.; Sands, Anderson,
Marks & Miller, on brief), for appellants.
(Louis D. Snesil, on brief), for appellee.
Help Welding and Mechanical Corporation and its insurer
(hereinafter referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Larry W. Chitty
(claimant) proved that (1) he sustained an injury by accident
arising out of his employment on August 11, 1996; (2) his average
weekly wage was $1,193.37; and (3) he was not obligated to market
his residual capacity. Upon reviewing the record and the briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). A
finding by the commission that an injury did or did not arise out
of the employment is a mixed finding of law and fact and is
properly reviewable on appeal. See Jones v. Colonial
Williamsburg Found., 8 Va. App. 432, 434, 382 S.E.2d 300, 301
(1989). The phrase "arising out of" refers to the origin or
cause of the injury. See County of Chesterfield v. Johnson, 237
Va. 180, 183, 376 S.E.2d 73, 74 (1989). To prevail, claimant
must "show that the conditions of the workplace . . . caused the
injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,
484, 382 S.E.2d 305, 306 (1989).
In ruling that claimant's injuries arose out of his
employment, the commission found as follows:
The claimant is a 54-year-old welder who
works for his own corporation. On August 11,
1996, he was climbing down from a truck bed
some 39 inches above the ground. The
claimant was attempting to step down from the
truck bed to a step some 18 inches below the
bed. He could not explain exactly how he
missed the step and fell to the ground.
However, it is clear from the claimant's
description of the episode that the step was
somewhat obscured from his view. We find
upon Review, as did the Deputy Commissioner,
that missing the step, under these
circumstances, was a risk of the employment.
The fall itself and the resulting low back
injury and left arm fracture are not
contested.
Claimant's testimony constitutes credible evidence to
support the commission's factual findings. "Where reasonable
inferences may be drawn from the evidence in support of the
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commission's factual findings, they will not be disturbed by this
Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App.
398, 404, 374 S.E.2d 695, 698 (1988). Here, the evidence
supported an inference that conditions of the workplace, i.e.,
the height of the truck bed from the first step and the step's
obscure location, caused claimant's injuries.
II.
"It was the duty of the commission to make the best possible
estimate of . . . impairments of earnings from the evidence
adduced at the hearing, and to determine the average weekly
wage . . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.
435, 441, 339 S.E.2d 570, 573 (1986). "This is a question of
fact to be determined by the Commission which, if based on
credible evidence, will not be disturbed on appeal." Id. "Thus,
if credible evidence supports the commission's findings regarding
the claimant's average weekly wage, we must uphold those
findings." Chesapeake Bay Seafood House v. Clements, 14 Va. App.
143, 146, 415 S.E.2d 864, 866 (1992).
The commission's calculation of claimant's average weekly
wage was based upon his 1995 earnings as reflected on his W-2
form and claimant's testimony that his wages in 1996 were
approximately the same as those in 1995. No evidence
contradicted claimant's testimony. The 1995 W-2 form, coupled
with claimant's testimony, constitutes credible evidence to
support the commission's calculation of claimant's average weekly
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wage.
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III.
Employer contends that claimant failed to prove that he made
a reasonable effort to market his residual capacity after his
accident, and therefore, the commission erred in awarding him
temporary total disability benefits for the periods alleged. In
ruling upon this issue, the commission found as follows:
[T]his argument is based upon the assumption
that [claimant] could perform light work, as
evidenced by his limited services to his
corporation during the period August 11
through September 30, 1996. We find no
medical release to return to light work with
specific restrictions. Neither is there a
duty on the claimant to obtain work with his
business which can be performed by other
employees. This would result only in some
increased earnings for the corporation, at
most, and there is no evidence that it would
have any bearing on payment for his services.
The claimant's salary, which is paid by the
corporation, establishes his average weekly
wage. The gross receipts or net earnings is
an entirely separate matter and reflects
business conditions, the solvency of the
corporation, return on investments, and other
business considerations.
The commission's findings are supported by the opinion of
the treating orthopedic surgeon, Dr. John W. Ayers, II. Dr.
Ayers opined that claimant was totally disabled during the period
in question. In addition, we find no support in the record or in
the case law for the proposition that in order for a totally
disabled business owner to be entitled to an award of temporary
total disability benefits, he must hire employees to continue his
business during his incapacity. Based upon this record, the
commission did not err in finding that claimant had no obligation
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to market his residual capacity.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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