COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

HELP WELDING AND MECHANICAL CORPORATION 

AND 

SELECTIVE INSURANCE COMPANY OF AMERICA 

 MEMORANDUM OPINION*

v. Record No. 1847-97-2 PER CURIAM 

 FEBRUARY 10, 1998 

LARRY WILSON CHITTY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Cecil H. Creasey, Jr.; Sands, Anderson, 

Marks & Miller, on brief), for appellants. 

 (Louis D. Snesil, on brief), for appellee. 

 Help Welding and Mechanical Corporation and its insurer 

(hereinafter referred to as "employer") contend that the Workers' 

Compensation Commission erred in finding that Larry W. Chitty 

(claimant) proved that (1) he sustained an injury by accident 

arising out of his employment on August 11, 1996; (2) his average 

weekly wage was $1,193.37; and (3) he was not obligated to market 

his residual capacity. Upon reviewing the record and the briefs 

of the parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the commission's decision. See

Rule 5A:27. 

 I. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. See R.G. Moore Bldg. Corp. v. 

 

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

designated for publication. 
 2 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). A 

finding by the commission that an injury did or did not arise out 

of the employment is a mixed finding of law and fact and is 

properly reviewable on appeal. See Jones v. Colonial 

Williamsburg Found., 8 Va. App. 432, 434, 382 S.E.2d 300, 301 

(1989). The phrase "arising out of" refers to the origin or 

cause of the injury. See County of Chesterfield v. Johnson, 237 

Va. 180, 183, 376 S.E.2d 73, 74 (1989). To prevail, claimant 

must "show that the conditions of the workplace . . . caused the 

injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 

484, 382 S.E.2d 305, 306 (1989). 

 In ruling that claimant's injuries arose out of his 

employment, the commission found as follows: 

 The claimant is a 54-year-old welder who 

works for his own corporation. On August 11, 

1996, he was climbing down from a truck bed 

some 39 inches above the ground. The 

claimant was attempting to step down from the 

truck bed to a step some 18 inches below the 

bed. He could not explain exactly how he 

missed the step and fell to the ground. 

However, it is clear from the claimant's 

description of the episode that the step was 

somewhat obscured from his view. We find 

upon Review, as did the Deputy Commissioner, 

that missing the step, under these 

circumstances, was a risk of the employment. 

 The fall itself and the resulting low back 

injury and left arm fracture are not 

contested. 

 Claimant's testimony constitutes credible evidence to 

support the commission's factual findings. "Where reasonable 

inferences may be drawn from the evidence in support of the 
 3 

commission's factual findings, they will not be disturbed by this 

Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 

398, 404, 374 S.E.2d 695, 698 (1988). Here, the evidence 

supported an inference that conditions of the workplace, i.e., 

the height of the truck bed from the first step and the step's 

obscure location, caused claimant's injuries. 

 II. 

 "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 . . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 

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

if credible evidence supports the commission's findings regarding 

the claimant's average weekly wage, we must uphold those 

findings." Chesapeake Bay Seafood House v. Clements, 14 Va. App. 

143, 146, 415 S.E.2d 864, 866 (1992). 

 The commission's calculation of claimant's average weekly 

wage was based upon his 1995 earnings as reflected on his W-2 

form and claimant's testimony that his wages in 1996 were 

approximately the same as those in 1995. No evidence 

contradicted claimant's testimony. The 1995 W-2 form, coupled 

with claimant's testimony, constitutes credible evidence to 

support the commission's calculation of claimant's average weekly 
 4 

wage. 
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 III. 

 Employer contends that claimant failed to prove that he made 

a reasonable effort to market his residual capacity after his 

accident, and therefore, the commission erred in awarding him 

temporary total disability benefits for the periods alleged. In 

ruling upon this issue, the commission found as follows: 

 [T]his argument is based upon the assumption 

that [claimant] could perform light work, as 

evidenced by his limited services to his 

corporation during the period August 11 

through September 30, 1996. We find no 

medical release to return to light work with 

specific restrictions. Neither is there a 

duty on the claimant to obtain work with his 

business which can be performed by other 

employees. This would result only in some 

increased earnings for the corporation, at 

most, and there is no evidence that it would 

have any bearing on payment for his services. 

 The claimant's salary, which is paid by the 

corporation, establishes his average weekly 

wage. The gross receipts or net earnings is 

an entirely separate matter and reflects 

business conditions, the solvency of the 

corporation, return on investments, and other 

business considerations. 

 The commission's findings are supported by the opinion of 

the treating orthopedic surgeon, Dr. John W. Ayers, II. Dr. 

Ayers opined that claimant was totally disabled during the period 

in question. In addition, we find no support in the record or in 

the case law for the proposition that in order for a totally 

disabled business owner to be entitled to an award of temporary 

total disability benefits, he must hire employees to continue his 

business during his incapacity. Based upon this record, the 

commission did not err in finding that claimant had no obligation 
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to market his residual capacity. 

 For the reasons stated, we affirm the commission's decision. 

Affirmed.