Opinion
Record No. 0860-93-3
November 23, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(S. T. Mullins; Gregory R. Herrell; Street, Street, Street, Scott Bowman; Arrington, Schelin Herrell, on briefs), for appellant.
(Ramesh Murthy; Penn, Stuart, Eskridge Jones, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick.
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 (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.
The sole issue on this appeal is whether the commission erred in calculating Joshua A. Harman's (claimant) average weekly wage. Claimant contends that the commission should have calculated his average weekly wage by adding the amount reported on his W-2 Form as "wages" and his proportionate share of Selco Seeding, Inc.'s (employer) profits.
In its April 16, 1993 review opinion, the full commission stated:
The Deputy Commissioner concluded that the ordinary income of Selco which included rents and royalty income received by virtue of being a stockholder in the corporation was not wages but a return on investment. He further concluded that the W-2 Forms accurately reflected the claimant's wages and used these amounts to determine the average weekly wage. After giving consideration to the arguments of counsel, we conclude there is no basis under § 65.2-101 for determining an average weekly wage based on an injured employee's stock investment in the corporation. We agree with the findings of the Deputy Commissioner that the withholding statements are the appropriate documents for determining the employee's average weekly wage. We AFFIRM his finding of an average weekly wage of $212.53 with a compensation rate of $141.75.
"It was 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. . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339 S.E.2d 570, 573 (1986). "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. "Thus, if credible evidence supports the commission's findings regarding the claimant's average weekly wage, we must uphold those findings." Chesapeake Bay Seafood House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864, 866 (1992).
Pursuant to Code § 65.2-101(A), the "average weekly wage" is generally computed by using the employee's earnings during the fifty-two weeks immediately preceding the employee's injury. Here, the commission followed the statute, basing its calculation on the wages reported on claimant's 1990 and 1991 W-2 Forms for the fifty-two week period immediately preceding his injury. These amounts were paid to him in his capacity as an employee.
Moreover, the commission found that the monies paid to claimant in 1990 and 1991 as his proportionate share of the employer's profits due to his status as a shareholder constituted a return on his investment and not amounts earned by him as an employee. This finding is supported by credible evidence and will not be disturbed on appeal. "[P]rofits from a business, whether commercial or farm, are not considered wages for the purposes of establishing an average weekly wage." A. Larson, The Law of Worker's Compensation, § 60.12(e) (1992). Claimant testified that he and his brother evenly split the ordinary income of the corporation. He admitted that his wages in 1991 were $6,700, and his share of the profits from the corporation were $31,000. We cannot say as a matter of law that the commission erred in using claimant's W-2 Forms to calculate his average weekly wage.
Claimant also contends that the monies he received in his capacity as a shareholder should be factored into the calculation of his average weekly wage as they were received "in lieu of wages" as provided for in Code § 65.2-101(B). This argument is without merit. The evidence fails to demonstrate that there was any contract of employment specifically providing for such an allowance. See Bosworth v. 7-Up Distributing Co., 4 Va. App. 161, 355 S.E.2d 339 (1987).
Finally, claimant's contention that the commission should have incorporated the monies he received in his capacity as a shareholder into the computation of his average weekly wage pursuant to § 65.2-101(A)(2) is without merit. Code § 65.2-101(A)(2) speaks in terms of the "injured employee" and does not, by its plain language, contemplate consideration of profits earned by the employer/corporation which are subsequently passed directly to a shareholder based upon his proportionate share of stock ownership.
For the reasons stated, we affirm the commission's decision.
Affirmed.