COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Hodges 

Argued at Norfolk, Virginia 

SUSAN ELAINE MAVITY 

 MEMORANDUM OPINION* BY 

v. Record No. 0763-95-1 JUDGE WILLIAM H. HODGES 

 JANUARY 30, 1996 

SUGAR 'N SPICE/GREEN FROG CORPORATION 

AND 

INSURANCE COMPANY OF NORTH AMERICA 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Stephen Strickler (McCardell & Inman, P.L.C., on 

briefs), for appellant. 

 Lisa Frisina Clement (Law Offices of E. Wayne Powell, 

on brief), for appellees. 

 Susan E. Mavity (claimant) appeals from an opinion of the 

Virginia Workers' Compensation Commission. She contends that the 

commission erred in calculating her average weekly wage to be 

$67.24. We agree and reverse and remand. 

 "The reason for calculating the average weekly wage is to 

approximate the economic loss suffered by an employee . . . when 

there is a loss of earning capacity because of work-related 

injury or death." Bosworth v. 7-Up Distrib. Co., 4 Va. App. 161, 

163, 355 S.E.2d 339, 340-341 (1987). Code § 65.2-101(1)(b) 

provides that "[w]hen for exceptional reasons" the general rules 

for computing average weekly wage "would be unfair . . . such 

other method . . . may be resorted to as will most nearly 

 

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

designated for publication. 
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approximate the amount which the injured employee would earn were 

it not for the injury." The commission has the duty of making 

the best possible estimate of future impairments of earnings from 

the evidence adduced at the hearing, and to determine the average 

weekly wage that the claimant was able to earn. Chesapeake Bay 

Seafood House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864, 

866 (1992) (citing Pilot Freight Carriers, Inc. v. Reeves, 1 Va. 

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

 The claimant had worked for Sugar 'N Spice for only sixteen 

weeks. The commission properly found that the average weekly 

wage could not be determined under the general rule and properly 

resorted to "such other method of computing the average weekly 

wage" as would approximate the amount the claimant would have 

earned but for the injury. 

 The evidence in this case diverged widely on the issue of 

claimant's average weekly wage before and after her job-related 

accident. Claimant explained that she worked as a waitress and 

house dancer between March and July 1993. Claimant often worked 

more than one eight hour shift per day and often worked seven 

days per week. Claimant split her time between the two 

positions, sometimes spending as much as fifty percent of her 

time dancing. 

 Both parties agree claimant earned a base salary of ten 

dollars per shift. However, this ten dollar figure was augmented 

by customers' tips, which were significantly greater when 
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claimant danced. Claimant kept detailed notes of her tip 

earnings, which she introduced at the hearing. Claimant figured 

that she earned an average of $722.75 per week before her injury, 

based on her total earnings combining base salary plus tips. 

Claimant calculated that she earned $2,775 in April 1993 and 

$2,891 in May 1993. Claimant calculated that after her injury on 

June 8, 1993, her earnings fell to $1,710 in June 1993 and $1,682 

in July 1993. According to claimant, employer had no formal 

system for employees to report their tips, although at the end of 

every night, employees "tipped out," giving bartenders ten 

percent of their tips earnings. Employer's bartender asserted 

that claimant, when "tipping out," gave her over ten dollars only 

three or four times in sixteen weeks. By implication, this meant 

claimant earned over $100 per shift on three or four occasions. 

 Employer provided employee with a W-2 form for 1993, which 

indicated claimant earned $1,075.95 between March and July 1993. 

 However, the W-2 form merely reflected claimant's base wages, 

and did not include her tips. As of the deputy commissioner's 

hearing on June 9, 1994, claimant had not filed her 1993 tax 

return, but instead had filed for an extension. Other evidence 

adduced at the deputy commissioner's hearing showed employer 

wrote a letter to help secure car financing for claimant, in 

which employer stated claimant earned $1,400 per month, which is 

approximately $323 per week. Tammy Stocks, claimant's co-worker, 

testified she herself earned approximately $450 to $500 per week 
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during May and June of 1993, working five or six nights per week. 

 We agree with the commission that "the evidence regarding 

the claimant's average weekly wage cannot be reconciled. If we 

relied on any one piece of evidence exclusively, the wage could 

vary between less than $100 per week and $700 per week." 

However, this Court only upholds the commission's findings 

regarding a claimant's average wages if the findings are 

supported by credible evidence. Clements, 14 Va. App. at 146, 

415 S.E.2d at 866. Here, the commission did not rely on credible 

evidence in concluding that the "best evidence of the claimant's 

average weekly wage" was $67.24 per week, a figure obtained by 

dividing claimant's W-2 salary figure by sixteen weeks. The 

commission improperly relied on the W-2 form supplied by 

employer, which did not reflect tips earned by claimant. 

Additionally, by the credit letter the employer admitted that 

claimant earned "in excess of $1400.00 per month." Thus, the 

"best" evidence is that claimant's average weekly wage was, at a 

minimum, based on a monthly income of $1400. The commission 

erred in disregarding the employer's admission. 

 For these reasons, we reverse and remand the cause to the 

commission for a re-determination of a weekly wage based on an 

income of not less than $323 per week. 

 Reversed and remanded.