COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Overton and Senior Judge Duff 

Argued at Alexandria, Virginia 

FUNCTION ENTERPRISES, INC. and 

 TRANSPORTATION INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 2814-96-4 JUDGE NELSON T. OVERTON 

 JULY 15, 1997 

ROD FREDERICK BROWN 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Jonathan S. Rochkind (Law Offices of Stuart 

L. Plotnick, on brief), for appellants. 

 Craig A. Brown (Ashcraft & Gerel, on brief), 

for appellee. 

 On appeal from the full commission's award of compensation 

to Rod Brown (claimant), Function Enterprises, Inc. and 

Transportation Insurance Company (collectively referred to as 

employer) contend that the commission erred in its calculation of 

claimant's average weekly wage. For the reasons that follow, we 

reverse the decision of the commission. 

 BACKGROUND 

 On June 3, 1994, claimant suffered a compensable injury 

during the course of his employment as a roofer for employer. 

Claimant's injury resulted in total incapacity from June 3, 1994 

through February 12, 1995, and partial incapacity from February 

13 through May 24, 1995 and continuing. 

 At the time of his injury, claimant had been working on a 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

"government employees job" for twelve days and had been receiving 

a "wage above what he made as a regular rate." Prior to this 

assignment, claimant had done little government work. Following 

claimant's injury, employer was involved in this government 

project for "several months." 

 Upon his return to work on February 13, 1995, employer 

offered claimant light duty pursuant to the doctor's 

recommendation. However, approximately six months later, 

claimant was terminated from Function Enterprises. The grounds 

for his termination included several managers' "dissatisfaction 

with his performance" of various assigned tasks, improper time 

reporting, failure to work according to "company standards," 

laziness, and being late to work. 

 A hearing regarding claimant's benefits was held on February 

29, 1996. The parties stipulated that employer paid claimant 

"benefits at the weekly rate of $450.63 for [eight] months, based 

upon an agreed wage of $675.94." The deputy commissioner found 

that "the evidence here fails to demonstrate that the claimant 

was terminated for justified cause . . . . The fact that the 

claimant does not perform his job well is not a basis for finding 

that he was terminated for justified cause." Additionally, the 

deputy commissioner concluded that "the payment of compensation 

for [eight] months by the employer's carrier resulted in a de 

facto award. Therefore, the employer is estopped from 

challenging the average weekly wage figure upon which those prior 
 3 

payments were based." Finally, the deputy commissioner found 

that claimant suffered a wage loss from May 24, 1995 and awarded 

him benefits. 

 The full commission affirmed the deputy commissioner's 

opinion, stating that "in order to bar future temporary partial 

disability benefits, the employer must prove that the claimant 

was involved in willful and deliberate misbehavior. Inability to 

perform well is not a basis for a finding of termination for 

'justified cause.'" Additionally, the commission determined 

that, at the time of his injury, claimant had been making $675 

per week in a government job covered by the Davis Bacon Act, and 

that claimant had performed this particular job for only twelve 

days prior to his accident. "[I]n the fifty-two weeks prior to 

the injury," claimant's typical weekly wage, not including the 

government job, had been $331.1

 

 After acknowledging that the average weekly wage had "been 

established by a de facto award," the commission rejected the 

employer's proposed Code § 65.2-101(1)(a) fifty-two week 

calculation, and found as follows: 

 In this case, the claimant was working 

as a roofer for a roofing contractor. He 

earned an average of $331.00 per week for 

fifty-two weeks before the accident, although 

at the time of the accident and twelve days 

previously he had been earning, by his 

testimony, $675.00 per week. The evidence 

establishes that he would have continued to 

 

 1Claimant agreed that in the fifty-two weeks prior to his 

injury he had earned the lower rate, but testified that he had 

expected the government job to last a year. 
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earn the $675.00 per week for at least a 

year. 

The commission then amended the average weekly wage of $675 to 

the amount of $503, "which is the average of the two proposed 

figures," and affirmed the deputy commissioner's opinion as so 

modified. 

MODIFICATION OF THE AVERAGE WEEKLY WAGE

 Employer argues that the commission erred in its calculation 

of claimant's average weekly wage by averaging the weekly wage 

claimed by the employer and the weekly wage claimed by the 

employee. We agree that the commission's calculation was 

incorrect. 

 It [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 . . . . This is a 

question of fact to be determined by the 

Commission 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). "The commission is guided by statute in 

determining average weekly wage." Dominion Associates Group, 

Inc., et al. v. Queen, 17 Va. App. 764, 766, 441 S.E.2d 45, 46 

(1994). Code § 65.2-101(1)(a) defines "average weekly wage" as 

follows: 

 The earnings of the insured employee in the 

employment in which he was working at the 

time of the injury during the period of 

fifty-two weeks immediately preceding the 

date of the injury, divided by fifty-two 

. . . . When the employment prior to the 

injury extended over a period of less than 
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fifty-two 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. When, by 

reason of a shortness of time during which 

the employee has been in the employment of 

his employer or the casual nature or terms of 

his employment, it is impractical to compute 

the average weekly wages as above defined, 

regard shall be had to the average weekly 

amount which during the fifty-two weeks 

previous to the injury was earned by a person 

of the same grade and character employed in 

the same class of employment in the same 

locality or community. 

Code § 65.2-101(1)(b) further provides that "[w]hen 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." (Emphasis added). 

 In the instant case, the commission did not follow the 

statutory directive of Code § 65.2-101(1)(a) in determining 

claimant's average weekly wage. Rather, it found that employer 

voluntarily paid claimant benefits based on the weekly wage of 

$675.94 (the amount of the government job), and initially adopted 

this amount as the average weekly wage. The record supports this 

finding, as the parties stipulated that "benefits were paid at 

the weekly rate of $450.63 for 8 months, based upon an agreed 

wage of $675.94." 

 However, the commission deviated from the $675.94 figure. 
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Although the commission failed to state the basis for this 

deviation, it appears to have averaged the $675.94 figure with 

the $331 figure proposed by employer to arrive at an average 

weekly wage fair to both parties in the amount of $503. This 

calculation is not supported by credible evidence. 

 Based on the record before us, we find the deputy 

commissioner's computation "most nearly approximate[s]" the 

amount claimant would have earned had he not been injured. See

Code § 65.2-101(1)(b). As noted above, the full commission found 

that claimant "would have continued to earn the $675.00 [sic] per 

week for at least a year." Thus, we reverse the commission's 

finding as to the wage computation and remand this appeal with 

direction that the deputy commissioner's findings and 

determination that $675.94 should be employed as the claimant's 

weekly wage be reinstated. 

 Reversed and

remanded.
 7 

Fitzpatrick, J., dissenting. 

 I respectfully dissent. The commission found that "[t]he 

evidence establishes that [claimant] would have continued to earn 

the $675.00 per week for at least a year." However, claimant's 

testimony indicates that he expected to earn this amount "[f]or 

the rest of the year at least." (Emphasis added). Sandra Nobles 

testified that although the project lasted "[s]everal months," 

she did not think that it went on "as long as the remainder of 

the year." (Emphasis added). Claimant was injured in June 1994. 

 Code § 65.2-101(1)(b) provides that for exceptional reasons, 

the commission may compute the average weekly wage to most nearly 

approximate "the amount which the injured employee would be 

earning were it not for the injury." 

 While in lieu of the fifty-two week calculation procedure 

set out in Code § 65.2-101(1)(a), the commission deviated from 

the statutory formula to determine claimant's average weekly 

wage, it failed to state the basis for its deviation. However, 

it clearly may be inferred that the commission considered the 

$675.94 figure to be unfair to the employer and that it found the 

ephemeral nature of claimant's employment at the government job 

to be "exceptional." Evidently, the commission applied Code 

§ 65.2-101(1)(b) and averaged the $675.94 figure with the $331 

figure proposed by employer to arrive at an average weekly wage 

fair to both parties in the amount of $503. 

 Under the circumstances of this case, the commission fairly 
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approximated the amount claimant would have earned had he not 

been injured. The weekly wage that the commission calculated is 

the "best possible estimate of future impairments of earnings 

from the evidence adduced at the hearing." Pilot Freight 

Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339 S.E.2d 570, 

573 (1986). Credible evidence supports the commission's 

determination, and I would affirm.