Micro Computer World v. Gene F. Niemcewicz

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia
MICRO COMPUTER WORLD, INC. AND
OLD REPUBLIC INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 0101-96-3 JUDGE LARRY G. ELDER
OCTOBER 1, 1996
GENE F. NIEMCEWICZ
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Steven H. Theisen (Midkiff & Hiner, P.C., on
brief), for appellants.
Easter P. Moses for appellee.
Micro Computer World, Inc. and Old Republic Insurance
Company (collectively "employer") appeal the Workers'
Compensation Commission's (commission) decision awarding Gene F.
Niemcewicz (claimant) compensation benefits based on an average
weekly wage of $500. Employer contends that the commission erred
in determining claimant's average weekly wage, where his wages
were never actually paid, but instead "deferred." We disagree
with employer and affirm the commission's decision.
I.
FACTS
Employer, a three-person corporation that designed computer
software products, employed claimant as its president beginning
in 1983. From 1983 through 1992, claimant earned a salary of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
$1,000 per month, plus commissions averaging $2,000 per month.
In late 1992, after employer's financial condition deteriorated,
claimant agreed to accept "deferred income" at a rate of $500 per
week, to be paid if and when employer had sufficient funds to
cover the expense. Claimant never worked for employer for free.
Claimant sustained a compensable injury by accident on
February 24, 1993, and was totally disabled for over two months.
At this time, claimant was still in "deferred income" status.
Claimant did not receive any salary in 1992 or 1993 and did not
report his "deferred income" on his income tax returns for those
years. Employer's business closed in May 1995, and claimant
never received his deferred income.
On July 19, 1995, the deputy commissioner found that
claimant earned a $500 average weekly wage and awarded benefits
based on this figure. On December 19, 1995, the commission
affirmed the deputy commissioner's decision. Employer now
appeals the commission's determination of claimant's average
weekly wage.
II.
DEFERRED COMPENSATION AS WAGES
On appeal, we view the evidence in the light most favorable
to the prevailing party below, claimant in this case. R.G. Moore
Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). "Under our standard of review [] factual findings are
conclusive and binding on this Court." Birdsong Peanut Co. v.
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Cowling, 8 Va. App. 274, 279, 381 S.E.2d 24, 27 (1989). The
commission's determination of a claimant's average weekly wage is
a question of fact, 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).
Pursuant to Code § 65.2-101(1)(b), the commission has the
authority, under "exceptional" circumstances, to use whatever
method "most nearly approximate[s] the amount which the injured
employee would be earning were it not for the injury." The
unrebutted testimony of claimant proved that he agreed to receive
deferred income in the amount of $500 per week beginning in 1992,
until employer had adequate funds with which to pay claimant's
wages. No evidence proved that claimant worked during 1992 and
1993 on a voluntary basis without an expectation of remuneration.
Appellant argues that because claimant will never receive
the deferred income that the income he expected to receive does
not meet the definition of wages and should not be used to
calculate "average weekly wage" under Code § 65.2-101. It
matters not that claimant will never receive the deferred income
(because the corporation is defunct), or that claimant may never
pay taxes on the deferred income. These circumstances do not
obviate the fact that when claimant sustained his work-related
injury, he continued to work based on an agreement that he would
at a future date be paid for his services in the amount of $500
per week. Furthermore, the fact that claimant never reported his
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deferred income to the Internal Revenue Service for taxation
purposes is not dispositive. While often the best evidence of a
claimant's income is that which is reflected in his or her income
tax returns, see Chesapeake Bay Seafood House v. Clements, 14 Va.
App. 143, 147, 415 S.E.2d 864, 866 (1992), in this case, claimant
never "realized" any taxable income. The record fully supports
the commission's finding that claimant expected to receive his
deferred compensation in the future and was denied this
compensation for reasons beyond his control.
For these reasons, we affirm the commission's decision.
Affirmed.
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