Opinion
Record No. 1737-93-1
April 5, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William L. Dudley, Jr.; Jimese L. Pendergraft; Knight, Dudley, Dezern Clarke, on brief), for appellants.
(Sidney H. Kelsey, Jr., 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.
Furmanite America, Inc. and its insurer (hereinafter collectively referred to as "employer") contend that the commission erred in calculating Johnnie Wade Twine's (claimant) return-to-work average weekly wage for purposes of determining temporary partial disability benefits by not including weekly earnings which exceed the pre-injury average weekly wage.
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. . . ." (Emphasis added.)
"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 and would penalize the claimant if the calculation of temporary partial disability benefits included weeks in which claimant earned equal to or greater than his pre-injury average weekly wage. The commission reasoned that "to include earnings for weeks in which [claimant's] earnings exceeded the pre-injury average weekly wage would give the employer a credit which effectively denied compensation to which the employee is entitled under the Act (Code § 65.2-502)." Accordingly, the commission calculated claimant's temporary partial disability benefits on a twelve-week basis, excluding weeks in which claimant earned equal to or greater than his pre-injury average weekly wage.
Credible evidence supports this method of calculation, and it is not contrary to the provisions of Code § 65.2-502. The use of the employer-requested method of calculation would have deprived the claimant of compensation he would be entitled to under a "weekly" method of calculation as required under the Act.
Accordingly, we affirm the commission's decision awarding temporary partial disability benefits to claimant.
Affirmed.