Maria D. Seminario v. Fairfax County Public Schools ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Huff and Chafin
UNPUBLISHED
Argued at Alexandria, Virginia
MARIA D. SEMINARIO
MEMORANDUM OPINION BY
v. Record No. 0362-14-4 JUDGE ROSSIE D. ALSTON, JR.
DECEMBER 9, 2014
FAIRFAX COUNTY PUBLIC SCHOOLS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Benjamin J. Trichilo (McCandlish Lillard, on briefs), for appellant.
Michael N. Salveson (G. Bethany Ingle; Littler Mendelson, P.C.,
on brief), for appellee.
Maria D. Seminario (“claimant”) appeals a decision of the Workers’ Compensation
Commission (“the commission”) calculating her average weekly wage for periods of temporary
total disability by dividing her salary by 52 weeks instead of by the number of weeks she
actually worked as a teacher, excluding summer weeks. On appeal, claimant contends that the
commission erred i) “by finding that the Claimant’s average weekly wage should be calculated
by dividing by 52 weeks, instead of dividing by 43.143 weeks. The ruling is contrary to the
plain language of the average weekly wage statute (Code § 65.2-101); is without precedent; and
materially understates the Claimant’s average weekly earnings”; and ii) “erred because the
standard applied by the Commission is unsupported by statute and creates an invidious
discrimination against school teachers and school personnel, by utilizing an average wage
calculation that materially understates the compensation rate of this class of employees, when

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
compared to the standard applied for landscapers and seasonal workers.” Finding no error, we
affirm.
I. Background1
On September 7, 2011, claimant, a 65-year-old teacher’s assistant for Fairfax County
Public Schools (“employer”), fractured her left wrist and injured her left shoulder, head, and
knees when a student tripped her. Claimant earned an annual salary of $31,201.87 for teaching
during the school year, or 43.143 weeks per calendar year. On March 28, 2012, claimant filed
her claim for benefits seeking awards of lifetime medical benefits and temporary total disability
benefits from September 8, 2011, through March 15, 2012. On April 26, 2012 employer and
claimant entered an award agreement providing for claimant’s compensation at the rate of
$480.08 per week for her temporary total disability from September 8, 2011, through March 16,
2012. This weekly compensation rate was calculated by dividing the claimant’s total earnings
from employer for the year by 43 weeks, the number of weeks claimant worked for employer
each year.
Employer filed a request for hearing on June 13, 2012, stating that the claimant’s
disability payments should have been calculated by dividing her pre-injury income by 52 weeks
to arrive at an average weekly wage of $600.15 for a compensation rate of $400.10 per week.
Employer sought a credit for any overpayment based on the calculated weekly wage of $480.08
provided in the agreed award.
At the hearing before the deputy commissioner on September 12, 2012, claimant testified
that at the time of the work injury, she had been working full time during the school year and that
her job required her to perform tasks such as lifting children, lifting boxes of books that weighed
1
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
-2-
over 5 pounds, and reaching above her head. Claimant stated that following her work injury, she
was no longer able to perform those tasks because they caused her pain. Although claimant had
the opportunity to seek summertime employment, she stated that after sustaining her injury she
would not do so because she could not use her left hand. Claimant last worked during the
summer approximately ten or eleven years prior to the hearing. Since then, claimant personally
chose not to work summers for Fairfax County even though summer work was and is available to
her if she chooses to work summers. Claimant did testify that she may seek summer work in the
future, but that she was not looking for summer work at the time of the hearing.
The deputy commissioner issued his opinion on September 18, 2012, in which he
determined that claimant’s salary should be divided by 52 weeks because claimant chose not to
seek employment during the summer months. Claimant requested review of the deputy
commissioner’s decision on October 11, 2012.2
By opinion dated January 28, 2014, the commission affirmed the deputy commissioner’s
September 18, 2012 opinion on the basis that claimant was not a seasonal employee and because
she chose not to seek summer employment. The commission agreed that claimant’s pre-injury
average weekly wage should be calculated by dividing her annual earnings into 52 weeks. In
reaching its decision, the commission compared claimant’s case to that of Scott v. Virginia
Beach (City of) School Board, 78 O.W.C. 199, 1999 Va. Wrk. Comp. LEXIS 510 (1999), a case
in which a school bus driver did not work during the summer months and her average weekly
wage was therefore calculated by dividing her earnings by 52 weeks. In Scott, the commission
2
Apparently “for reasons unknown” the matter was not docketed for review for over a
year. In the interim, on September 19, 2012, November 8, 2012, February 27, 2013, and March
7, 2013, claimant filed additional claims for benefits in which she sought medical authorizations
and ongoing temporary total disability benefits beginning March 5, 2013. On April 25, 2013, the
deputy commissioner held a hearing on claimant’s additional claims for benefits and on May 13,
2013, the deputy commissioner awarded claimant ongoing temporary total wage loss benefits of
$400.03 per week beginning March 5, 2013, based on a pre-injury average weekly wage of
$600.04.
-3-
based its decision on the claimant’s choice not to work during the summer break. Since the
claimant in the present case also chose not to work during the summer months, the commission
calculated her average weekly wage as it had in Scott—by dividing her earnings by 52 weeks.
This appeal followed.
II. Analysis
The fundamental purpose of the Workers’ Compensation Act (the “Act”) is to
compensate employees for injuries “arising out of and in the course of employment . . . without
regard to fault.” Lawrence J. Pascal, Virginia Workers’ Compensation: Law & Practice § 1.03
(4th ed. 2011). “‘It is as essential to industry as it is to labor.’” Id. (quoting Feitig v. Chalkley,
185 Va. 96, 38 S.E.2d 73 (1946)).
“[I]t [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
that [the claimant] was able to earn. This is a question of fact to be
determined by the Commission which, if based on credible
evidence, will not be disturbed on appeal.”
Chesapeake Bay Seafood House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864, 866 (1992)
(quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339 S.E.2d 570, 573
(1986)). “Thus, if credible evidence supports the commission’s findings regarding a claimant’s
average weekly wage, we must uphold those findings.” Id. (citing James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989)). “‘The commission is guided by
statute in determining average weekly wage.’” Thorpe v. Clary, 57 Va. App. 617, 624, 704
S.E.2d 611, 614 (2011) (quoting Ellen Kaye, Inc. v. Wigglesworth, 34 Va. App. 390, 394, 542
S.E.2d 30, 32 (2001)). “Unless the commission misconstrues the statute, the determination of an
employee’s ‘average weekly wage’ constitutes a ‘question of fact’ deserving of deferential
appellate review.” Id. (citing Pilot Freight Carriers, Inc., 1 Va. App. at 441, 339 S.E.2d at 573).
However, to the extent the calculation of the average weekly wage is based on statutory
-4-
interpretation, it presents a question of law and is subject to de novo review by this Court. See
Turf Care, Inc. v. Henson, 51 Va. App. 318, 334, 657 S.E.2d 787, 794 (2008).
The Code assists the commission in determining an injured claimant’s average weekly
wage. Code § 65.2-500(A) provides, in part:
Except as provided in subsections E, F and G, 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.
Code § 65.2-101 provides, in relevant part:
“Average weekly wage” means:
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
52 weeks immediately preceding the date of the injury, divided by
52; but if the injured employee lost more than seven consecutive
calendar days during such period, although not in the same week,
then the earnings for the remainder of the 52 weeks shall be
divided by the number of weeks remaining after the time so lost
has been deducted. When the employment prior to the injury
extended over a period of less than 52 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 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.
“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
-5-
(1987) (citations omitted). To achieve this purpose, the Act gives the commission discretion in
the calculation method used to determine the average weekly wage. Goodyear Tire & Rubber
Co. v. Mendenall, Record No. 2905-08-3, 2009 Va. App. LEXIS 401, at *4 (Va. Ct. App. Sept.
8, 2009).3
The Court highlighted the purpose of calculating average weekly wage to approximate
economic loss in the unpublished opinion, Goodyear Tire, where claimant suffered a
compensable injury by accident to his left shoulder. Id. at *1. In the 52-week period preceding
claimant’s injury, claimant participated in a twelve-week union strike against employer in which
he received no pay and took three weeks of unpaid vacation. Id. The commission concluded
that the strike and unpaid vacation weeks should be excluded from the calculation of claimant’s
average weekly wage. Id. The Court affirmed, stating that “in decreasing the number of weeks
used for the calculation, the commission is not compensating the employee for ‘lost’ time, but
rather best approximating what the employee would be earning were it not for his injury by
excluding time not worked that might be considered an aberration.” Id. at *4. The Court
considered the twelve weeks claimant was on strike as “lost” time under Code § 65.2-101(A)
because, absent the “aberration” of the union strike, claimant would have been working during
that time. Id.
The Court’s holding in Goodyear emphasized that the calculation of a claimant’s average
weekly wage is not meant to compensate a claimant for loss of earning capacity, but rather to
provide compensation for actual economic loss suffered as the result of a workplace injury. The
salient issue in the present case is how this purpose is served and through which method of
calculation under Code § 65.2-101(A) as applied to school system employees who work during
3
“Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350, 735 S.E.2d 255, 257
(2012) (citing Rule 5A:1(f)).
-6-
the school year and choose not to accept other work opportunities during the summer weeks
when school is not in regular session.
Though not binding on this Court, the commission addressed calculation of a school bus
driver’s average weekly wage, where she worked during the school year but not over the
summer, in Scott, 1999 Va. Wrk. Comp. LEXIS 510. The commission determined that
claimant’s average weekly wage should be calculated by dividing her pay into 52 weeks. In so
holding, the commission noted that
During the summer vacation period, the claimant elected not to
work. Therefore, her situation is not like that of a seasonal worker
who obtains other employment during the off-season. . . . [H]ere
the claimant’s job constituted full-time employment for her. If the
compensation rate in this case were to be based on 42.2 weeks, her
compensation benefits for 12 months would exceed her income
from working as a school bus driver as received over 12 months.
Such a result would not approximate the claimant’s loss of income
from her job and would unfairly award her higher earnings than a
comparable co-worker who suffered a similar injury.
Id. at *3.
We find the commission’s rationale in Scott persuasive to this fact-driven case and find
that the commission properly calculated claimant’s average weekly wage by dividing her salary
by 52 weeks. We are mindful that school teachers perform a “vitally important public function,”
and we do not underestimate the contributions they make throughout the school year to the
growth and development of the youth in this Commonwealth and across the country, regardless
of whether or not they seek work over the summer. See Lentz v. Morris, 236 Va. 78, 82, 372
S.E.2d 608, 610 (1988). However, on the facts of this case, claimant, much like the bus driver in
Scott, chose to work during the school year and not during the summer months. She had not
sought work over the summer, though it was available to her, for over a decade. Additionally,
claimant admitted that she would not be looking for summer work in the foreseeable future.
-7-
Claimant’s school year employment, much like the claimant in Scott, “constituted
full-time employment for her.” 1999 Va. Wrk. Comp. LEXIS 510, at *3. Further, the summer
months were not an “aberration” for claimant, as the weeks spent on union strike were for the
claimant in Goodyear and thus, her summer months were not “lost” time as contemplated by
Code § 65.2-500(A). Finally, claimant is not under-compensated by dividing her salary by 52
weeks; she will receive approximately 66 2/3% of her pre-injury average weekly wage, to which
she is entitled.4 On the facts of this case, claimant’s actual loss resulting from her injury is most
accurately calculated by dividing her annual salary by 52 weeks and, therefore, we find that the
commission did not err in so finding.
Affirmed.
4
Claimant’s average weekly pay, however, calculated by dividing her salary by 43
weeks, would result in her earning approximately eighty percent of her annual salary over the
course of a year of disability payments. While still within the upper compensation limit of Code
§ 65.2-500(A) (not less than twenty-five percent and not more than one hundred percent of the
average weekly wage of the Commonwealth), employing claimant’s preferred calculation would,
from a workers’ compensation perspective, unnecessarily lead to her over-compensation, when
calculating her average weekly pay according to the weeks she actually worked during the year
(as the commission did) compensates her precisely as provided by Code § 65.2-500(A).
-8-