COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Frank and Clements 

Argued at Alexandria, Virginia 

ROBERT C. GRANT 

 MEMORANDUM OPINION* BY 

v. Record No. 1960-01-4 JUDGE JEAN HARRISON CLEMENTS 

 SEPTEMBER 24, 2002 

ROBERT C. GRANT AND 

 VANLINER INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 David L. Bayne, Jr. (Ashcraft & Gerel, LLP, 

on brief), for appellant. 

 S. Vernon Priddy III (Sands Anderson Marks & 

Miller, on brief), for appellees. 

 Robert C. Grant (claimant), the sole proprietor of a moving 

business, appeals a decision of the Workers' Compensation 

Commission (commission) finding his pre-injury average weekly 

wage impermissibly included earnings attributable to his wife. 

Based on that finding, the commission reduced claimant's 

pre-injury average weekly wage by thirty percent, terminated his 

benefits as of January 1, 2000, and awarded his business's 

insurance carrier, Vanliner Insurance Company (insurer), a credit 

of $43,803.43. The sole issue on appeal is whether the commission 

erred in reducing claimant's pre-injury average weekly wage. 

Finding no error, we affirm the commission's decision. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts and incidents of the 

proceedings as necessary to the parties' understanding of the 

disposition of this appeal. 

 On May 25, 1997, claimant sustained a work-related injury 

to his back while lifting a box. At the time of the accident, 

claimant was self-employed as the owner/operator of Grant 

Trucking, a moving business that transported household goods 

under contract with Smith's Transfer and Mayflower Transit. 

Insurer accepted the claim as compensable and paid claimant 

benefits pursuant to a compensation award entered by the 

commission on June 3, 1998. 

 The commission's award was based on the parties' memoranda 

of agreement, which indicated that claimant's pre-injury average 

weekly wage was $1,117.65. This figure was calculated using the 

$58,118.00 net profit shown for Grant Trucking on Schedule C of 

the 1040 tax form filed jointly by claimant and his wife for 

1996. In the performance of that calculation, the entire 

$58,118.00 profit was treated as claimant's income. Based on 

the pre-injury average weekly wage of $1,117.65, claimant 

received $334.84 per week in temporary partial compensation 

benefits from August 25, 1997, through August 6, 2000, the date 

of the last payment, for a total of $51,565.36. 

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 Following the injury, claimant returned to light duty work, 

earning an average weekly wage of $643.16 in 1997, $635.35 in 

1998, and $754.81 in 1999. As of June 6, 2000, claimant's gross 

pay for the year was $22,153.60, yielding an average weekly wage 

of $981.49. Claimant did not report these increases in his 

earnings to insurer. 

 Insurer filed applications with the commission on August 1, 

2000, and September 28, 2000, seeking, on the grounds of 

imposition or mistake of fact, a reduction of claimant's 

pre-injury average weekly wage commensurate with that percentage 

of Grant Trucking's net profit for 1996 that was attributable to 

claimant's wife's contributions to the business. Finding that 

thirty percent of Grant Trucking's net profit shown on the 

jointly filed 1996 Schedule C tax form was attributable to 

wife's work, the commission reduced claimant's pre-injury 

average weekly wage by thirty percent, from $1,117.65 to 

$782.36. Based on that reduction, the commission found that 

claimant, whose average weekly wage in 2000 was $981.49, returned 

to work as of January 1, 2000, at a wage greater than his 

pre-injury average weekly wage. Accordingly, the commission 

terminated claimant's benefits as of January 1, 2000. In light of 

that termination and the lower amount of compensation owed 

claimant because of his reduced pre-injury average weekly wage, 

the commission awarded insurer a credit of $43,803.43. 

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 On appeal, all of claimant's challenges stem from his 

contention that the commission erred in reducing his pre-injury 

average weekly wage by thirty percent. The evidence, claimant 

argues, did not establish that his wife's efforts provided a 

benefit to his business. Accordingly, he concludes, the 

commission erred in finding that thirty percent of his 

business's net profit in 1996 was attributable to his wife. We 

disagree. 

 In reviewing the commission's decision, we view the 

evidence in the light most favorable to the party prevailing 

before the commission. See Allen & Rocks, Inc. v. Briggs, 28 

Va. App. 662, 672, 508 S.E.2d 335, 340 (1998). The commission's 

factual findings are conclusive and binding on appeal if 

supported by credible evidence in the record. Southern Iron 

Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 

(1993). 

 It [is] the duty of the [c]ommission 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 that [the claimant] was 

able to earn. This is a question of fact to 

be determined by the [c]ommission 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). "Thus, if credible evidence supports 

the commission's findings regarding the claimant's average 

weekly wage, we must uphold those findings." Chesapeake Bay 

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

866 (1992). 

 Moreover, the commission has "the power and authority not 

only to make and enforce its awards, but to protect itself and 

its awards from fraud, imposition and mistake." Harris v. 

Diamond Constr. Co., 184 Va. 711, 720, 36 S.E.2d 573, 577 

(1946). 

 It is well settled that an employee's 

average weekly wage, even after being agreed 

to by the parties and set forth in an award 

of the commission, is subject to 

modification upon the grounds of fraud, 

misrepresentation, mistake or imposition. 

It is immaterial whether the mistake of fact 

is mutual or unilateral. 

Mercy Tidewater Ambulance Serv. v. Carpenter, 29 Va. App. 218, 

226, 511 S.E.2d 418, 421-22 (1999) (citations omitted). The 

burden is upon the party attacking the award to establish 

mistake by clear and convincing evidence. J & D Masonry, Inc. 

v. Kornegay, 224 Va. 292, 295, 295 S.E.2d 887, 889 (1982). 

 Here, the parties initially agreed to a pre-injury average 

weekly wage of $1,117.65, which was calculated by dividing the 

full $58,118.00 net profit shown on Schedule C of claimant's 

1040 tax form by fifty-two. However, as the commission found, 

the tax form was not filed just by the 

claimant but was a joint filing, 

representing the earnings of the claimant 

and his wife. This, together with the 

claimant's testimony that his wife drove 

about 40 percent of the time, that she owned 

the truck and performed other valuable 

administrative duties, proves the average 

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weekly wage impermissibly included earnings 

attributable to the claimant's wife. 

Examining the driving logs of claimant and his wife, the 

commission further found that, during the thirty-six "haul 

dates" occurring between January 5, 1996, and February 23, 1997, 

"claimant's wife drove 5,695 miles while the claimant drove 

13,260 miles. Thus," the commission continued, "on those dates, 

the claimant's wife drove 30 percent of the time." Accordingly, 

the commission found that claimant's pre-injury average weekly 

wage should be reduced by thirty percent, from $1,117.65 to 

$782.36. 

 The commission's findings are supported by credible clear 

and convincing evidence, including the jointly filed tax form; 

claimant's testimony that his wife owned the truck, performed 

administrative duties for the business, and drove forty percent 

of the time; and the driving logs. As fact finder, the 

commission could permissibly infer from such evidence that, in 

initially calculating claimant's pre-injury average weekly wage, 

the parties mistakenly used the full net profit listed on the 

joint tax form, rather than only that portion of the business's 

net profit that represented claimant's earnings. The commission 

could also permissibly infer from the evidence that thirty 

percent of the net profit shown on the tax form was attributable 

to wife's contributions to the business. 

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 We hold, therefore, that the commission did not err in 

reducing claimant's pre-injury average weekly wage from 

$1,117.65 to $782.36 and, based on that reduction, did not err 

in terminating claimant's compensation benefits as of January 1, 

2000, and awarding insurer a credit of $43,803.43. 

 Accordingly, we affirm the commission's decision. 

 Affirmed. 

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