COURT OF APPEALS OF VIRGINIA Present: Judges Clements, Kelsey and McClanahan Argued at Alexandria, Virginia
FAIRFAX HOSPITAL AND INOVA HEALTH SYS TEM FOUNDATION, INC. MEMORANDUM OPINION * BY v. Record No. 2741-06-4 JUDGE D. ARTHUR KELSEY OCTOBER 2, 2007 ELIZABETH A. McKAVENEY

FROM THE VIRGINIA WORKER S’ COMPENSATION COMMISSION Eric J. Berghold (McCandlish & Lillard, P.C., on brief), for appellants. Douglas K.W. Landau (Abrams Landau Ltd., on brief), for appellee.
The appellants, Fairfax Hospital and its insu rer, Inova Health Sy stem Foundation, Inc., appeal a ruling of the Workers’ Compensati on Commission refusing to award a credit under Code § 65.2-712 against workers’ compensation liab ility owed to Elizabeth A. McKaveney. The commission’s decision, the appell ants argue, cannot be fairly reconciled with any credible evidence in the record. We disagree and affirm.
I. On appeal, we view the “evidence and all reas onable inferences that may be drawn from that evidence” in the lig ht most favorable to the party prev ailing before the commission. Artis v. Ottenberg’s Bakers, Inc. , 45 Va. App. 72, 83, 608 S.E.2d 512, 517 (2005) ( en banc ). So viewed, the evidence demonstrates that McKaveney sustained a workplace injury while working for Fairfax Hospital in 1997. She received workers’ compensation benefits until

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - September 2004 when Fairfax Hospital discovered she had become employed full time with Creature Comfort Pet Care (CCPC). 1 Between 2000 and September 2004, McKaveney had been performing sporadic duties at the direction of CCPC’s owner. As McKaveney put it, “I considered myself a loyal friend helping out.” McKaveney never received a wage, as such, but she and her son did receive coverage under a health insurance plan purchased by CCPC. Destitute and homeless, McKaveney was also pe rmitted to stay briefly at the CCPC office. CCPC provided additional benefits , like the use of a company ve hicle and cell phone, and paid certain personal debts in curred by McKaveney. The owner of CCPC characterized these benef its as gratuities, intended mostly to help McKaveney get back on her feet. “I was just trying to be nice,” CCPC’s owner explained, “trying to help her get her act together.” “I was paying it b ecause she was screwed and I was being nice.” When asked if thes e gratuities served as a substitu te for wages, CCPC’s owner gave an ambiguous response: “I guess that was our agr eement. We never really sat and discussed it, I mean, she was living in a shelter. She needed whatever help she could get.” In her testimony, McKaveney made similar remarks about he r understanding of the CCPC relationship. Fairfax Hospital eventually found out about McKaveney’s work at CCPC and requested that the commission calculate the various be nefits McKaveney received from 2000 to 2004 and credit that amount against Fairfax Hospital’s ongoing liability for compensation based upon the 1997 accident. See Code § 65.2-712 (authorizing credit against future liability when an employee returns to work without notifying he r previous employer). Two members of the commission concluded Fairfax Hosp ital failed to demonstrate th at the benefits sought to be credited were truly in lieu of wages. See McKaveney v. Fairfax Hosp. , No. 184-09-27, 2006 Va.

1 The parties stipulated that CCPC paid Mc Kaveney a salary from August 2004 to June 2005 which, by agreement, was credited to Fairfax Hospital.- 3 - Wrk. Comp. L EXIS 906, at *6-7 (Oct. 4, 2006). “Absent evidence of an agreement that the payments were in addition to, or instead of, ot her wages,” the majority reasoned, the allowances could not be treated as earni ngs under Code § 65.2-101(2). Id. A dissenting commissioner found the in-lieu-of-wages eviden ce convincing and voted in favor of the requested credit. Id. at *8-11. From this split opinion, Fairfax Hospital a nd its insurer appeal on the ground that the commission’s decision rests on insufficient evidence.
II. Fairfax Hospital and its insurer do not argue on appeal that the commission applied an incorrect legal standard to this dispute or engaged in any flawed analysis of governing statutes or precedents. They instead challenge only the f actual sufficiency of the commission’s ultimate decision. The commission erred, they argue, beca use the “evidence proved that the payment of the premiums was a specified part of the wage co ntract, and that the premiums were paid in lieu of wages.” Appellants’ Br. at 8. We begin our analysis with a familiar restatement of the standard of appellate review. By statute, an award of the commissi on “shall be conclusive and binding as to all questions of fact.” Berglund Chevrolet v. Landrum , 43 Va. App. 742, 749-50, 601 S.E.2d 693, 697 (2004) (quoting Code § 65.2-706(A)). “This appellat e deference is not a mere legal custom, subject to a flexible application, but a statutory command,” id. (quoting Cent. Va. Obstet rics & Gynecology Assocs. v. Whitfield , 42 Va. App. 264, 279, 590 S.E.2d 631, 639 (2004)), that binds us so long as “there was credible evidence presented such that a reasonable mind could conclude” as the commission did, Perry v. Delisle , 46 Va. App. 57, 67, 615 S.E.2d 492, 497 (2005) ( en banc ) (emphasis added and citation omitted); see also Artis , 45 Va. App. at 83-84, 608 S.E.2d at 517.- 4 - “We likewise defer to the commission’s ‘conclusions upon conflicting inferences, legitimately drawn from proven facts’ — for infere nces, like historic facts, are likewise ‘equally binding on appeal.’” Id. (quoting Watkins v. Halco Eng’g, Inc. , 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983)). “Such deference is warranted ev en though there is evidence in the record to support a contrary finding.” Id. (citation omitted). “Acting w ithin its factfinding discretion, therefore, the commission is free to adopt that view ‘which is most consistent with reason and justice.’” Id. (citation omitted). In this case, the commission applied the statut ory definition of earnings to determine if a credit should be recognized. Under Code § 65.2-101(2), “[w]henever allowances of any character made to an employee in lieu of wages ar e a specified part of th e wage contract, they shall be deemed a part of his earnings.” For an a llowance to be in lieu of wages, it must not only be an “economic gain” to the employee (and not merely reimbursement of an out-of-pocket expense), Sw. Arch. Prods., Inc. v. Smith , 4 Va. App. 474, 479, 358 S.E.2d 745, 748 (1987), but must also serve as a substitute for wages, Gajan v. Bradlick Co. , 4 Va. App. 213, 216-17, 355 S.E.2d 899, 901-02 (1987) (noting there was no evid ence that, if the employer had not provided insurance coverage, the employee w ould have received a “higher wag e”). For one thing to be in lieu of another, the former must be in place of , serving as a substitute for, or acting as an alternative to the latter. See generally Black’s Law Dictionary 803 (8th ed. 2004). In the context of Code § 65.2-101(2), the thi ng being replaced (wages) must have existed but for its replacement (non-wage allowances). Applying this principle, the commission f ound the factfinding task difficult because of the “informal” agreement between the parties and the “erratic testimony” of CCPC’s owner. McKaveney , 2006 Va. Wrk. Comp. L EXIS 906, at * 6. Part of that “erratic testimony” was the owner’s statement that the economic benefits CCPC provided to McKaveney were motivated in- 5 - large part by charity rather than any formal quid pro quo for employment services rendered. This assertion, a persistent them e of the owner’s testimony, contra dicted her apparent concession (“I guess that was our agreement.”) that her benevolence could be considered as a form of substitute wage. The commission resolved that inconsistenc y by discounting the concession and crediting the charity motive as the driving force behind the benefits CCPC conferred on McKaveney. A similar result was reached regarding McKa veney’s testimony, which contained the same incongruence. Approaching the evidence from this perspective, the commission was free to reject the assertion that CCPC would have paid McKaveney wa ges for her services had she not been the beneficiary of the owner’s benevolence. Simply put, the evidence failed to persuade the commission that the allowances made to McKavene y were truly a substitute for the payment of wages. Without just this sort of this-for-t hat proxy, the commission correctly concluded the allowances could not be treated as de facto earnings under Code § 65.2-712 for purposes of calculating an appropriate credit. Because “we do not judge the credibility of witnesses or weigh the evidence on appeal,” Hoffman v. Carter , 50 Va. App. 199, 209, 648 S.E.2d 318, 323 (2007) (citation omitted), our personal view of the underlying factual debate plays no role in the task of appellate review. See Perry , 46 Va. App. at 67, 615 S.E.2d at 497 (observi ng that we cannot not reverse “simply because we have become convinced that we woul d have decided the fact differently” (citation omitted)). We similarly do not ask whether the evidence could have persuaded the commission to grant the credit. The only que stion we ask is whether a rati onal factfinder could have been

un persuaded by the in-lieu-of-wages evidence, id. ; Artis , 45 Va. App. at 83-84, 608 S.E.2d at 517, a question we answer in the affirmative gi ven the evidentiary equi poise presented by the record in this case.- 6 - III. Fairfax Hospital and its insurer challenge only the evidentiary sufficiency of the commission’s decision not to award a credit. Examining that decision under the governing standard of appellat e review, we affirm.

Affirmed.