Present: All the Justices 

THE UNINSURED EMPLOYER'S FUND 

 OPINION BY 

v. Record No. 970477 CHIEF JUSTICE HARRY L. CARRICO 

 January 9, 1998 

CLARA ANNETTE THRUSH, ET AL. 

FROM THE COURT OF APPEALS OF VIRGINIA 

 This is a workers' compensation case involving an employee 

who was hired to work only one day for a total wage of $42 and 

was killed after working a portion of the day. The case has 

twice been before the Workers' Compensation Commission (the 

Commission) and the Court of Appeals. In the second round, the 

Commission awarded the employee's widow and minor child 

compensation at a weekly rate of $160, based upon an average 

weekly wage of $240. The Court of Appeals affirmed the award. 

Finding that the case involves matters of significant 

precedential value, we awarded an appeal to the Uninsured 

Employer's Fund (the Fund), which became a party to the 

proceeding because the employer was uninsured. 

 The employee, Brian Lee Thrush (Brian), a pipelayer by 

trade, lived and worked in Florida. However, on December 8, 

1991, he was in Virginia for a court appearance the next day, 

planning to return to Florida immediately afterward. 

 Reichert Painting Company, a sole proprietorship owned by 

Nancy Reichert (Reichert), contracted with Cavalier Ford, Inc. of 

Chesapeake to paint light poles on Cavalier's car lot. Needing 

extra help, Reichert hired Brian, a part-time painter, to work 

seven hours on December 8 at $6 per hour. After about an hour 

and a half of painting, Brian apparently fell from a "mobil[e] 
scaffold," came into contact with a high-voltage electric line, 

and died a short time later of "[s]hock due to electrocution." 

 On December 7, 1993, Brian's widow, Clara Annette Thrush, 

and his minor child, Teauna Mae (collectively, Thrush), filed 

with the Commission a claim for death benefits. A deputy 

commissioner entered an award in favor of the widow and child for 

death benefits of $196 per week, based upon an average weekly 

wage of $294, derived from the formula $6 per hour x seven 

hours = $42 per day x seven days = $294 per week. Upon the 

Fund's request for review, the full Commission affirmed the 

award. 

 The Fund appealed the award to the Court of Appeals 

(Thrush I). In an unpublished memorandum opinion, the Court of 

Appeals reversed the Commission's decision, stating that "a work 

week of forty-nine hours was inexplicably adopted by the 

commission, resulting in a purely conjectural calculation of 

[Brian's] average weekly wage." The Court of Appeals remanded 

the case to the Commission "for redetermination of the award in 

accordance with an average weekly wage based upon a forty-hour 

work week at $6 per hour." 

 Upon remand, the Commission interpreted the Court of 

Appeals' action as a "remand . . . with directions to find that 

the average weekly wage of the deceased employee was $240." 

Accordingly, the Commission entered an award in the amount of 

$160 per week, based upon an average weekly wage of $240, derived 

from the formula $6 per hour x forty hours per week = $240. 

 The Fund appealed this award to the Court of Appeals 
(Thrush II). The Fund took the position that "the amount of the 

average weekly wage [was] not determined by the unpublished 

opinion [in Thrush I]." However, in an unpublished per curiam 

opinion, the Court of Appeals ruled that the Fund sought to raise 

in Thrush II "the precise issue that was previously determined 

[in Thrush I]" and, therefore, that the "law of the case" 

doctrine barred the court from reexamining the issue and 

"mandate[d] affirmance of [the Commission's award]." Hence, the 

Court of Appeals did not reach the merits of the Fund's appeal. 

 As noted in the Court of Appeals' opinion in Thrush II, the 

"law of the case" doctrine provides as follows: 

 Where there have been two appeals in the same case, 

between the same parties, and the facts are the same, 

nothing decided on the first appeal can be re-examined 

on a second appeal. . . . It differs from res judicata

in that the conclusiveness of the first judgment is not 

dependent upon its finality. 

American Filtrona Co. v. Hanford, 16 Va. App. 159, 164, 428 

S.E.2d 511, 514 (1993) (quoting Steinman v. Clinchfield Coal 

Corp., 121 Va. 611, 620, 93 S.E. 684, 687 (1917)). 

 We must first determine whether the Court of Appeals' "law 

of the case" ruling is binding upon this Court and bars its 

consideration of the merits of the case. If this question is 

answered in the affirmative, our inquiry is at an end. 

 On this question, Thrush's counsel stated in oral argument 

before this Court: 

 The Court of Appeals correctly said that [the holding 

of Thrush I] is the law of this case. There was no 

appeal taken by [the Fund] from the initial 

determination of the Court of Appeals of Virginia [in 

Thrush I], which essentially told them what the 

computation of the average weekly wage could have been, 
and I think that would have been the appropriate time 

for [the Fund] to bring that argument before this 

Court. I think they are too late to try to bring it to 

you today. 

 We disagree with Thrush. The Fund was not bound to appeal 

from the Court of Appeals' decision in Thrush I. This is made 

clear by Code § 17-116.09, one of the Code sections enacted as 

part of the legislation creating the Court of Appeals. Code § 17-

116.09 states as follows: 

 A judgment, order, conviction, or decree of a circuit 

court or award of the Virginia Workers' Compensation 

Commission may be affirmed, or it may be reversed, 

modified, or set aside by the Court of Appeals for 

errors appearing in the record. If the decision of the 

Court of Appeals is to reverse and remand the case for 

a new trial, any party aggrieved by the granting of the 

new trial may accept the remand or proceed to petition 

for appeal in the Supreme Court pursuant to § 17-

116.08. 

 While the Court of Appeals in Thrush I may have told the 

parties what the computation "could have been," the court did not 

modify the Commission's award as Code § 17-116.09 permits but 

reversed the award and remanded the case with directions for the 

Commission to make a new award. The Fund was entitled to accept 

the remand, rather than petition for an appeal to this Court, and 

to attempt on remand to persuade the Commission to make an award 

favorable to the Fund. As it happened on remand, the Commission 

made an award that was not favorable to the Fund. This prompted 

the Fund to appeal the award to the Court of Appeals in Thrush II

and then to seek an appeal to this Court, a course of action 

which, in our opinion, is permissible under Code § 17-116.09. 

 To say, as Thrush would have us say, that the Court of 

Appeals' application of the "law of the case" doctrine is binding 
at this stage of the appellate process would mean that, by 

accepting the remand, the Fund effectively waived its right to 

seek an ultimate appeal to this Court from an unfavorable 

decision following the remand. In our opinion, this is not the 

result the General Assembly intended by its enactment of Code 

§ 17-116.09. 

 This brings us to the merits of the case. The Fund contends 

that the Commission erred in calculating the average weekly wage 

in this case "as if the worker was a full time, forty hour a week 

employee." On the other hand, Thrush contends that the 

Commission's "determination that [Brian's] average weekly wage 

was $240.00 is fully supported in both fact and law." 

 Thrush notes that the purpose "'for calculating the average 

weekly wage is to approximate the economic loss suffered by an 

employee or his beneficiaries.'" (quoting Bosworth v. 7-Up Dist. 

Co., 4 Va. App. 161, 163, 355 S.E.2d 339, 340 (1987)). Thrush 

then says that, to achieve this purpose, the Workers' 

Compensation Act "gives the Commission considerable discretion in 

computing an employee's average weekly wage." 

 Thrush first points out that Code § 65.2-101(1)(a) defines 

"average weekly wage" as "[t]he earnings of the injured 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." Thrush tacitly 

concedes that this method of computing average weekly wage is 

inapplicable. Thrush emphasizes, however, that the section goes 

on to permit an alternative method by providing that if it is 
impractical to compute the average weekly wage "as above defined" 

because of the shortness or the casual nature of the employment, 

"regard shall be had to the average weekly amount which during 

the fifty-two weeks previous to the injury was being earned by a 

person of the same grade and character employed in the same class 

of employment in the same locality or community." 

 However, Thrush submitted no evidence to the Commission 

concerning the earnings of a person engaged in similar 

employment. Indeed, the Court of Appeals stated in its Thrush I

opinion that the record of the original Commission hearing was 

"silent with respect to wages of similarly situated employees 

during the fifty-two weeks prior to [Brian's] injury," and the 

record of the remand hearing is equally silent. 

 Thrush next points to Code § 65.2-101(1)(b) as providing 

alternative methodologies for computing average weekly wage. 

This section provides that "[w]hen for exceptional reasons the 

[formula prescribed by § 65.2-101(1)(a)] 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." 

 At one point on brief, Thrush indicates that the "other 

method" the Commission resorted to in computing Brian's average 

weekly wage was to take "the amount of wages he was being paid by 

Reichert per hour and projecting those wages over a forty-hour 

work week." However, Brian was employed by Reichert to work only 

one day, not a forty-hour week, so an essential component of the 
Commission's projection breaks down upon analysis. 

 At another point on brief, Thrush indicates the Commission 

could have computed Brian's average weekly wage by combining the 

wage he was to earn as a painter for Reichert with the wage he 

earned from his previous work as a pipelayer. For example, 

responding to the Fund's argument that the long-standing 

"dissimilar employment rule" in workers' compensation law does 

not permit such combination when, as here, the previous work is 

dissimilar, Thrush states that "it is clear under any reasonable 

view of the plain language of [Code § 65.2-101(1)(b)] and the 

particular facts of this case that the Fund's assertion that 

dissimilar employment prevents extrapolation of a daily wage to a 

weekly wage is entirely erroneous." 

 Thrush's argument suggests that Code § 65.2-101(1)(b) has 

somehow discredited the dissimilar employment rule. We reject 

the suggestion; the rule is alive and well in workers' 

compensation law. 

 The rule finds its origin in the decision of the Industrial 

Commission (now the Workers' Compensation Commission) in Thompson 

v. Herbert, 4 O.I.C. 310 (1922). There, the Commission 

considered the same statutory language that is now contained in 

Code § 65.2-101(1)(b). The Commission held it was not 

permissible to combine wages earned in dissimilar employment 

because such action would contradict the definition now contained 

in Code § 65.2-101(1)(a) of "average weekly wage" as "the 

earnings of the injured employee in the employment in which he 

was working at the time of the injury." Id. at 316. 
 This Court considered the propriety of combining dissimilar 

employment in Graham v. Gloucester Furniture Corp., 169 Va. 505, 

194 S.E. 814 (1938). There, the employee was injured while 

working in a part-time job. In order to obtain the maximum rate 

of workers' compensation, the employee sought to have his parttime wages combined with wages earned in his regular full-time 

employment. The Industrial Commission fixed compensation at the 

minimum rate. Although not mentioned in the opinion, what is now 

Code § 65.2-101(1)(b) was then part of the workers' compensation 

law. This Court affirmed because the evidence supported the 

Commission's finding that the employee's part-time work "was not 

the same character of work as that performed" in his full-time 

employment. Id. at 510, 194 S.E. at 816. 

 More recently, in Hudson v. Arthur Treachers, 2 Va. App. 

323, 343 S.E.2d 97 (1986), involving the same factual pattern as 

Graham, the Court of Appeals focused directly upon Code § 65.2-

101(1)(b) in considering the question whether its language 

permits "the combination of wages earned from concurrent 

dissimilar employment in determining the claimant's average 

weekly wage." Id. at 326, 343 S.E.2d at 99. The Court of Appeals 

answered the question in the negative, observing that because the 

Commission has consistently applied the dissimilar employment 

rule for many years, it must be presumed "that the legislature 

was aware of, and is in agreement with, this practice." Id. The 

Court of Appeals also made an observation, with which we concur, 

that this Court's holding in Graham "represents an 

acknowledgement and approval of the Commission's practice of 
denying the combination of wages earned in dissimilar employment 

for purposes of determining a claimant's pre-injury average 

weekly wage." Id. at 327, 343 S.E.2d. at 99. 

 Hence, although the Workers' Compensation Act provides 

several permissible methods of computing the average weekly wage, 

none supports the average weekly wage determination made by the 

Commission in this case. This leaves for consideration only the 

$42 Brian was to be paid for his one day of work for Reichert as 

a basis for computing the compensation payable to Thrush. 

 Accordingly, we will reverse the judgment appealed from and 

remand the case to the Court of Appeals with directions to remand 

the matter to the Commission. The remand to the Commission shall 

direct that it fix the amount of compensation payable to Thrush 

based upon the actual weekly wage of $42 and consistent with the 

views expressed in this opinion. 

Reversed and remanded.