Rich Products Corp v. Michael R Steere ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
RICH PRODUCTS CORPORATION AND
CONTINENTAL CASUALTY COMPANY
MEMORANDUM OPINION*
v. Record No. 0530-03-4 PER CURIAM
JUNE 3, 2003
MICHAEL R. STEERE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(C. Ervin Reid; Wright, Robinson, Osthimer &
Tatum, on briefs), for appellants.
(William S. Sands, Jr.; Duncan and Hopkins,
P.C., on brief), for appellee.
Rich Products Corporation and its insurer contend the
Workers' Compensation Commission erred in finding that Michael
R. Steere was entitled to an award of temporary partial
disability benefits beginning February 13, 2000, and continuing,
based upon an average weekly wage of $700.37. Rich Products
argues that the commission erred by not averaging all of the
wages Steere was able to earn during the first quarter of the
year 2000. Upon reviewing the record and briefs of the parties,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Code § 65.2-502 provides that an employer shall pay as
compensation during an employee's partial incapacity, "a weekly
compensation equal to 66 2/3 percent of the difference between
[an employee's] average weekly wages before the injury and the
average weekly wages which [the employee] is able to earn
thereafter."
In Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435,
339 S.E.2d 570 (1986), we recognized as follows:
The extent of earning capacity must be
ascertained from the evidence, and as such
is not limited to any special class of
proof. All legal facts and circumstances
surrounding the claim should properly be
considered and due weight given them by the
Commission.
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 . . . .
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. at 441, 339 S.E.2d at 573 (citation omitted).
The commission found that the following calculation
constituted the best and fairest indication of Steere's partial
wage loss commencing February 13, 2000:
[Steere] alleges that as of February
13, 2000, his average weekly wage decreased.
The records support his allegation. For the
pay period ending February 12, 2000, [his]
year-to-date earnings were $6,978.73. As of
April 22, 2000, [his] year-to-date earnings
were $13,982.43. Thus, during the ten-week
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period between February 13 and April 22,
2000, [Steere] earned $7,003.70.
. . . The above calculations are based
on ten weeks of earnings, which we find is
more representative of [Steere's] current
earning capacity and is only two weeks less
than a quarterly assessment of his earnings.
Thus, we find that $700.37 is a fair and
accurate representation of [Steere's]
current average weekly wage. His
post-injury average weekly wage is $160.63
less than his pre-injury average weekly wage
of $861.00; thus, he is entitled to
temporary partial disability benefits in the
weekly amount of $107.09.
(Footnotes omitted.) The commission rejected Rich Products's
argument that the commission was required to review Steere's
wages from the beginning of the year 2000, instead of the date
the alleged decrease in wages occurred. The commission assessed
Steere's current average weekly wage as of February 13, 2000,
the date upon which his wages decreased.
Contrary to Rich Products's contention, no language in Code
§ 65.2-502 requires that the commission average all of an
injured employee's post-injury wages in order to determine the
average weekly wage for the purpose of awarding temporary
partial disability benefits commencing on a specific date.
The wage records established that from February 13, 2000,
the date upon which Steere's wages decreased, through April 22,
2000, Steere earned an average weekly wage lower than his
pre-injury average weekly wage of $861, during nine out of ten
weeks. The commission, as fact finder, was entitled to reject
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Rich Products's contention that the average weekly wage should
be calculated from the beginning of the year 2000. Credible
evidence proved that between February 13, 2000 and April 22,
2000, Steere earned more than his pre-injury average weekly wage
during only one out of ten weeks. To compute the average weekly
wage as proposed by Rich Products would have deprived Steere of
compensation when his earnings were well below his pre-injury
average weekly wage during the majority of that period.
Credible evidence supports the commission's findings, and the
commission's calculation best indicates Steere's partial wage
loss commencing February 13, 2000.
Accordingly, we affirm the commission's award.
Affirmed.
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