COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Humphreys and Senior Judge Overton 

RICH PRODUCTS CORPORATION AND 

 CONTINENTAL CASUALTY COMPANY 

 MEMORANDUM OPINION*

v. Record No. 0530-03-4 PER CURIAM 

 JUNE 3, 2003 

MICHAEL R. STEERE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (C. Ervin Reid; Wright, Robinson, Osthimer & 

Tatum, on briefs), for appellants. 

 (William S. Sands, Jr.; Duncan and Hopkins, 

P.C., on brief), for appellee. 

 Rich Products Corporation and its insurer contend the 

Workers' Compensation Commission erred in finding that Michael 

R. Steere was entitled to an award of temporary partial 

disability benefits beginning February 13, 2000, and continuing, 

based upon an average weekly wage of $700.37. Rich Products 

argues that the commission erred by not averaging all of the 

wages Steere was able to earn during the first quarter of the 

year 2000. Upon reviewing the record and briefs of the parties, 

we conclude that this appeal is without merit. Accordingly, we 

summarily affirm the commission's decision. Rule 5A:27. 

 

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

designated for publication. 
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 Code § 65.2-502 provides that an employer shall pay as 

compensation during an employee's partial incapacity, "a weekly 

compensation equal to 66 2/3 percent of the difference between 

[an employee's] average weekly wages before the injury and the 

average weekly wages which [the employee] is able to earn 

thereafter." 

 In Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 

339 S.E.2d 570 (1986), we recognized as follows: 

The extent of earning capacity must be 

ascertained from the evidence, and as such 

is not limited to any special class of 

proof. All legal facts and circumstances 

surrounding the claim should properly be 

considered and due weight given them by the 

Commission. 

 It was the duty of the Commission to 

make the best possible estimate of 

. . . impairments of earnings from the 

evidence adduced at the hearing, and to 

determine the average weekly wage . . . . 

This is a question of fact to be determined 

by the Commission, which if based on 

credible evidence, will not be disturbed on 

appeal. 

Id. at 441, 339 S.E.2d at 573 (citation omitted). 

 The commission found that the following calculation 

constituted the best and fairest indication of Steere's partial 

wage loss commencing February 13, 2000: 

 [Steere] alleges that as of February 

13, 2000, his average weekly wage decreased. 

The records support his allegation. For the 

pay period ending February 12, 2000, [his] 

year-to-date earnings were $6,978.73. As of 

April 22, 2000, [his] year-to-date earnings 

were $13,982.43. Thus, during the ten-week 
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period between February 13 and April 22, 

2000, [Steere] earned $7,003.70. 

 . . . The above calculations are based 

on ten weeks of earnings, which we find is 

more representative of [Steere's] current 

earning capacity and is only two weeks less 

than a quarterly assessment of his earnings. 

Thus, we find that $700.37 is a fair and 

accurate representation of [Steere's] 

current average weekly wage. His 

post-injury average weekly wage is $160.63 

less than his pre-injury average weekly wage 

of $861.00; thus, he is entitled to 

temporary partial disability benefits in the 

weekly amount of $107.09. 

(Footnotes omitted.) The commission rejected Rich Products's 

argument that the commission was required to review Steere's 

wages from the beginning of the year 2000, instead of the date 

the alleged decrease in wages occurred. The commission assessed 

Steere's current average weekly wage as of February 13, 2000, 

the date upon which his wages decreased. 

 Contrary to Rich Products's contention, no language in Code 

§ 65.2-502 requires that the commission average all of an 

injured employee's post-injury wages in order to determine the 

average weekly wage for the purpose of awarding temporary 

partial disability benefits commencing on a specific date. 

 The wage records established that from February 13, 2000, 

the date upon which Steere's wages decreased, through April 22, 

2000, Steere earned an average weekly wage lower than his 

pre-injury average weekly wage of $861, during nine out of ten 

weeks. The commission, as fact finder, was entitled to reject 
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Rich Products's contention that the average weekly wage should 

be calculated from the beginning of the year 2000. Credible 

evidence proved that between February 13, 2000 and April 22, 

2000, Steere earned more than his pre-injury average weekly wage 

during only one out of ten weeks. To compute the average weekly 

wage as proposed by Rich Products would have deprived Steere of 

compensation when his earnings were well below his pre-injury 

average weekly wage during the majority of that period. 

Credible evidence supports the commission's findings, and the 

commission's calculation best indicates Steere's partial wage 

loss commencing February 13, 2000. 

 Accordingly, we affirm the commission's award. 

Affirmed.