COURT OF APPEALS OF VIRGINIA 

Present: Judges Barrow*, Koontz and Fitzpatrick 

Argued at Alexandria, Virginia 

TWENTY-FIRST CENTURY CONCRETE, 

 INC. AND AMERICAN RELIANCE 

 INSURANCE COMPANY 

v. Record No. 1621-94-4 

 

VINCENT GIACCHINA, HOMES BY 

 VINCENT, INC. AND ASSURANCE 

 COMPANY OF AMERICA OPINION BY 

 JUDGE JOHANNA L. FITZPATRICK 

VINCENT GIACCHINA MAY 16, 1995 

v. Record No. 1645-94-4 

 

TWENTY-FIRST CENTURY CONCRETE, 

 INC., AMERICAN RELIANCE 

 INSURANCE COMPANY, HOMES BY 

 VINCENT, INC. AND ASSURANCE 

 COMPANY OF AMERICA 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Cathie Howard (Richard A. Hobson; Williams & Pierce, on 

brief), for appellants/cross-appellees Twenty-First Century 

Concrete, Inc. and American Reliance Insurance Company. 

 T. Chappell Aldridge for appellee/cross-appellant Vincent 

Giacchina. 

 P. Dawn Bishop (Sands, Anderson, Marks & Miller, on brief), 

for appellees/cross-appellees Homes By Vincent, Inc. and 

Assurance Company of America. 

 

1 

 *Judge Barrow participated in the hearing and decision of 

this case and joined in the opinion prior to his death. 

 On appeal, Twenty-First Century Concrete, Inc. (TwentyFirst) contends that the commission erred in finding Vincent 

Giacchina (claimant) to be in the joint service of both TwentyFirst and Homes by Vincent, Inc. (Homes) at the time of the 

injury. As cross-error, claimant argues that the commission 
 2 

erred in denying his application for temporary total disability 

benefits under Code § 65.2-500 because he failed to prove actual 

wage loss and a loss to Twenty-First and Homes, corporations in 

which he had a substantial ownership interest. We hold that: 

(1) credible evidence supports the commission's finding that 

claimant was in the joint service of both employers, and (2) the 

commission erred in requiring a financial loss to the 

corporations as a prerequisite to compensation. 

 BACKGROUND

 Claimant was both chief executive officer and a working 

employee of Twenty-First and Homes. In February 1993, Homes was 

the general contractor and Twenty-First was the concrete 

subcontractor in the construction of a new home. Claimant, 

acting as an employee of Twenty-First, poured concrete for a 

fireplace hearth on February 24, 1993. The next day, he returned 

to the work site for a progress inspection and to check the 

hearth. After claimant inspected the hearth, one of the on-site 

carpenters asked him to check a second-story stud wall that had 

been recently changed. Claimant climbed a ladder to look at the 

stud wall and to check the chimney flue's alignment with the 

roof. Claimant fell from the ladder and fractured several ribs. 

 Before the accident, claimant received a salary from both 

corporations "by regular check or as needed," and he had 

authority to decide how much money to withdraw. Claimant did not 

draw income from either corporation during his period of 
 3 

disability. The construction of the house continued, and 

claimant was required to reassign other employees to cover for 

his absence. The parties agree that claimant sustained an injury 

by accident arising out of and in the course of his employment, 

which rendered him totally disabled from February 25, 1993 until 

May 20, 1993. Additionally, the parties stipulated that his 

combined average weekly wage using his 1992 W-2 statements is 

$1,025.13. Each employer argues that: (1) claimant was working 

for the other corporation at the time of the accident, and (2) 

because the corporations suffered no actual loss, and claimant 

was paid by draws over which he had control, he sustained no wage 

loss. 

JOINT EMPLOYER LIABILITY

 Twenty-First argues that the commission erred in finding 

that claimant was in the joint service of both employers when he 

was injured. 

 Code § 65.2-529 of the Workers' Compensation Act provides 

that: 

 [w]henever any employee for whose injury or 

death compensation is payable under this 

[Act] shall at the time of the injury be in 

the joint service of two or more employers 

subject to this title, such employers shall 

contribute to the payment of such 

compensation in proportion to their wage 

liability to such employee. 

On appeal, "we review the evidence in the light most favorable to 

the prevailing party." R.G. Moore Bldg. Corp. v. Mullins, 10 Va. 

App. 211, 212, 390 S.E.2d 788, 788 (1990). "Factual findings of 
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the . . . [c]ommission 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, 488-89 (1989). 

 Credible evidence supports the commission's finding that 

claimant was working for both employers at the time of the 

accident. Although the deputy commissioner found only Homes 

liable for benefits, he found claimant "very candid in his 

admission that he . . . was engaged in the work of both employers 

when he was ascending the ladder to inspect the chimney and stud 

wall." The full commission adopted this credibility finding and 

accepted claimant's testimony that he was performing work for 

both employers when he fell. 

 WAGE LOSS

 Both employers argue that claimant did not sustain a wage 

loss as a result of his accident because: (1) he had the 

authority to draw his regular income from the corporations, and 

(2) the corporations did not suffer any monetary loss. 

 At the hearing before the deputy commissioner, the parties 

stipulated that: (1) claimant's injury arose out of and in the 

course of his employment, and (2) claimant's average weekly wage 

could be determined from his 1992 W-2 statements. The W-2 

statements showed claimant's combined income from both employers 

to be $53,307, with an average weekly wage of $1,025.13. Neither 

employer disputed that claimant was totally disabled as a result 

of the accident from February 25, 1993 to May 20, 1993. 
 5 

 Code § 65.2-500(A) provides the compensation formula in 

total disability cases: 

 When the incapacity for work resulting from 

the injury is total, the employer shall pay, 

or cause to be paid, as hereinafter provided, 

to the injured employee during such total 

incapacity, a weekly compensation equal to 66 

2/3 percent of his average weekly wages, with 

a minimum not less than 25 percent and a 

maximum of not more than 100 percent of the 

average weekly wage of the Commonwealth as 

defined herein. 

"Benefits under [Code §§ 65.2-500 and 65.2-502] for total and 

partial incapacity compensate the employee for loss of earnings 

resulting from the injury." Crystal Oil Co., Inc. v. Dotson, 12 

Va. App. 1014, 1020-21, 408 S.E.2d 252, 255 (1991). "The extent 

of earning capacity must be ascertained from the evidence, and 

such is not limited to any special class of proof. All legal 

facts and circumstances surrounding the claim should properly be 

considered . . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 

Va. App. 435, 441, 339 S.E.2d 570, 573 (1986). Compensation in 

both total and partial disability cases "is ultimately dependent 

upon and determined on the loss of wages." Nicely v. Virginia 

Elec. & Power Co., 195 Va. 819, 823, 80 S.E.2d 529, 531 (1954). 

 The parties agree that the characterization of draw as pure 

profits or profits and earnings is not an issue on appeal. We 

hold that the commission erred in finding no loss of earning 

capacity or actual wage loss. We hold that the commission erred 

in finding that claimant did not experience any actual wage loss. 

 Claimant was totally incapacitated and earned no wages for the 
 6 

period February 25, 1993 to May 20, 1993. Thus, even though 

claimant had authority to draw wages from the corporations, he 

was not paid because he had to reassign other employees to 

perform his duties. Additionally, we find no authority that 

requires a worker to show a loss to his employer, even when the 

worker is part owner of the employer corporation. Workers' 

compensation benefits compensate the worker for his own loss of 

earnings or earning capacity, not losses suffered by his or her 

employer. In this case, claimant should be compensated as a 

worker for his loss of earning capacity caused by his workrelated injury. 

 Accordingly, we affirm the commission's finding that 

claimant was in the joint service of both employers and reverse 

the commission's denial of benefits. 

 Affirmed in part,

reversed in part,

and remanded.