COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Fitzpatrick 

Argued at Alexandria, Virginia 

VALORIE J. ROBINSON 

v. Record No. 2361-94-4 OPINION BY 

 JUDGE JOHANNA L. FITZPATRICK 

SALVATION ARMY/THE GEORGIA CORP. JULY 18, 1995 

 AND LIBERTY MUTUAL FIRE 

 INSURANCE CO. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 John L. Lilly, Jr., for appellant. 

 Lisa C. Healey (Siciliano, Ellis, Dyer & Boccarosse, 

 on brief), for appellees. 

 Valorie J. Robinson (claimant) appeals the commission's 

decision denying her concurrent temporary total disability 

benefits from two distinct employers for two separate workrelated injuries suffered at different times. The sole issue on 

appeal is whether the commission properly limited claimant to 

benefits based on the higher of her two average weekly wages in 

order to prevent a double recovery and a rate of compensation in 

excess of her earning capacity. Finding no error, we affirm the 

commission. 

 BACKGROUND

 On June 29, 1988, claimant injured her right ankle while 

working as a recreation leader for the City of Alexandria (the 

City). Claimant's average weekly wage at the time of her injury 

was $326. Claimant received compensation for various periods of 

disability, including June 5 to August 21, 1989 and June 11 to 

June 24, 1990. On June 10, 1993, claimant underwent ankle 
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surgery that rendered her totally disabled, and the City agreed 

to pay claimant $217.33 temporary total disability benefits 

commencing June 10, 1993. 

 Claimant suffered an injury to her right hand while working 

as director of a community center for the Salvation Army on March 

20, 1990. At the time of the accident, claimant's average weekly 

wage was $346.15, and she was not receiving disability benefits 

from the first injury. Claimant and the Salvation Army agreed to 

benefits commencing April 1, 1991, and benefits were suspended on 

January 13, 1992 when claimant was released to full-time work. 

On June 2, 1993, claimant had surgery on her hand, and the 

Salvation Army voluntarily paid temporary total disability 

benefits from June 2, 1993 to November 14, 1993. 

 Claimant filed an application seeking an award of continuing 

temporary total disability benefits from the Salvation Army on 

January 6, 1994. At that time, she was still receiving from the 

City total disability benefits for the injury to her ankle. On 

April 4, 1994, the City filed an application to terminate its 

payment of benefits to claimant. Claimant wanted concurrent 

total disability benefits from both employers, with the amount 

based on the total of her two average weekly wages. The 

commission found that claimant was not entitled to a "double 

recovery" and held that the City was "liable only for disability 

compensation attributable to the June 29, 1988 accident that 

exceeds disability benefits attributable to . . . the March 20, 
 3 

1990 accident." 

CONCURRENT DISABILITY BENEFITS 

 Claimant argues that the commission erred in denying her 

concurrent total disability payments for both injuries. There is 

no dispute that this is a total disability case governed by Code 

§ 65.2-500. 

 "This Court is not bound by the legal determinations made by 

the commission. '[W]e must inquire to determine if the correct 

legal conclusion has been reached.'" Cibula v. Allied Fibers & 

Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708, 711 (1992) 

(quoting City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 

655, 657 (1965)), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993). 

 "The purpose of the Workers' Compensation Act is to provide 

compensation to an employee for the loss of his opportunity to 

engage in work . . . ." Barnett v. D.L. Bromwell, Inc., 6 Va. 

App. 30, 33-34, 366 S.E.2d 271, 272 (1988) (en banc). Code 

§ 65.2-500 contains the formula for benefits 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. In any 

event, income benefits shall not exceed the 

average weekly wage of the injured employee. 

(Emphasis added.) 
 4 

 Claimant argues that nothing in Code § 65.2-500 prevents her 

from receiving more than the total of her average weekly wage 

when two employers are involved. However, Code § 65.2-500 

specifically limits "income benefits . . . [to] the average 

weekly wage of the injured employee." Additionally, Professor 

Larson in his treatise on workers' compensation presents a 

rationale to limit awards for concurrent injuries to the weekly 

maximum for total disability. 

 [A]t a given moment in time, a person can be 

no more than totally disabled. . . . 

[Additionally,] if he is allowed to draw 

weekly benefits simultaneously from a 

permanent total and a permanent partial 

award, it may be more profitable for him to 

be disabled than to be well--a situation 

which compensation law always studiously 

avoids in order to prevent inducement to 

malingering. 

2 Larson, supra, § 59.41(a), at 10-561, -565, -567 (footnotes 

omitted). This rationale is equally applicable in a case 

involving concurrent benefits from two total disability awards. 

 In addressing this issue, other states with a similar 

statutory maximum on total disability benefits have limited 

benefits to the maximum when a claimant suffers more than one 

work-related injury. See, e.g., Matney v. Newberg, 849 S.W.2d 

526 (Ky. 1993); Harrison v. Lakey Foundry Corp., 106 N.W.2d 521 

(Mich. 1960); Walls v. Hodo Chevrolet Co., Inc., 302 So. 2d 862 

(Miss. 1974); Fischer v. State Accident Ins. Fund Corp., 711 P.2d 

162 (Or. Ct. App. 1985), review denied, 717 P.2d 1182 (Or. 1986). 

 These cases hold that "a claimant may not, at one time, be 
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compensated for more than total occupational disability because 

he can, in fact, be no more than totally occupationally 

disabled." Matney, 849 S.W.2d at 527. "[A] claimant may not 

pyramid benefits and receive in excess of the maximum weekly 

benefits provided by statute during any one period." Walls, 302 

So. 2d at 867. 

 We hold that Code § 65.2-500 limits claimant's total 

disability benefits to sixty-six and two-thirds percent of the 

greater of her two average weekly wages. Claimant's argument 

that Code § 65.2-500 allows her concurrent benefits based on the 

total of her average weekly wages with both employers is without 

merit. The purpose of workers' compensation is to provide 

compensation to the injured employee who suffers a work-related 

accident by continuing to pay her a wage comparable to that 

earned at the time of the injury. This purpose does not justify 

awarding an employee who suffers two unrelated injuries more 

money than she has ever earned in a week.1

 In this case, the commission relied on the policy rationale 

of Code § 65.2-5062 to avoid double recovery when an employee 

 1Claimant's average weekly wage at the time of her first 

injury was $326, and her average weekly wage at the time of her 

second injury was $346.15. If we were to award claimant 

concurrent benefits, she would receive $448.10 per week in 

benefits. 

 2

Code § 65.2-506 provides as follows: 

 If an employee receives an injury for 

which compensation is payable while he is 

still receiving or entitled to compensation 

for a previous injury in the same employment, 
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suffers two injuries in the same employment and limited 

claimant's total disability benefits to compensation based on the 

greater of her two average weekly wages, her wages with the 

Salvation Army. Here, claimant's average weekly wage never 

exceeded her Salvation Army wage, and the commission properly 

awarded claimant benefits based on that wage. Additionally, the 

commission's apportionment of the benefit liability between the 

City and the Salvation Army is a sound division under the facts 

in this case. See Donahue v. Clark Elec. Contractors, Inc., 68 

O.I.C. 256 (1989) (dividing benefit liability between two 

different insurers in a similar manner). 

 Accordingly, the decision of the commission is affirmed. 

 Affirmed. 

 

he shall not at the same time be entitled to 

compensation for both injuries. 

 Claimant argues that Code § 65.2-506 does not bar her from 

receiving benefits for both injuries. The Salvation Army agrees 

that Code § 65.2-506 does not control in this case but argues 

that the rationale of Code § 65.2-506 bars a double recovery. In 

Donahue v. Clark Elec. Contractors, Inc., 68 O.I.C. 256 (1989), 

the commission held that Code § 65.2-506 was designed "to bar the 

payment of compensation for successive injuries in the same work 

which might result in a double recovery or at least a 

compensation rate which exceeded the pre-injury average weekly 

wage." Id. at 258. As in Donahue, the commission found that 

Code § 65.2-506 did not apply under the facts in this case but 

determined that the policy of avoiding a double recovery 

justified limiting claimant's benefits to the greater of her two 

average weekly wages.