Opinion
Record No. 1392-93-4
December 21, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Kelly A. Saunders; Carr, Goodson, Lee, on brief), for appellants.
(Bruce K. Billman; Rice, Stallknecht Billman, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Branscome Paving Company and its insurer (hereinafter collectively referred to as "employer") contend that the commission erred in awarding Milton E. Sullivan (claimant) temporary partial disability benefits. Employer argues that claimant's entitlement to partial disability benefits should have been based on 66 2/3 percent of the difference between his stipulated pre-injury average weekly wage and the quarterly average of his weekly wages earned during periods of partial incapacity after his injury.
Upon appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Factual findings of the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Code § 65.2-502 provides that compensation to be paid by an employer to an injured employee for partial work incapacity is "a weekly compensation equal to 66 2/3 percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter . . . ."
"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." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339 S.E.2d 570, 573 (1986). The commission found that it would be unfair to compute claimant's earnings on a quarterly basis as it normally did. Rather, the best indication of his partial wage loss would be on a week-by-week basis.
Credible evidence supports this finding, and it is not contrary to provisions of Code § 65.2-502. The 1990-1992 wage reports demonstrate that, for at least seventy-four weeks out of the total period of partial disability at issue, claimant earned less than the stipulated pre-injury average weekly wage. In articulating its reasons for awarding partial disability benefits on a week-by-week basis rather than on an average quarterly basis, the commission noted that claimant experienced significant periods of wage loss since 1990. The use of the quarterly average calculation would have deprived claimant from receiving compensation for the weeks in which he earned less than the stipulated pre-injury average weekly wage.
Accordingly, we affirm the commission's decision awarding temporary partial disability benefits to claimant.
Affirmed.