COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

THE UNINSURED EMPLOYER'S FUND 

v. Record No. 0709-95-1 MEMORANDUM OPINION* BY 

 JUDGE RICHARD S. BRAY 

CLARA ANNETTE THRUSH, et al. JANUARY 11, 1996 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Julia D. Tye, Assistant Attorney General (James S. 

Gilmore, III, Attorney General; John J. Beall, Jr., 

Senior Assistant Attorney General, on brief), for 

appellant. 

 Robert J. Macbeth, Jr. (Rutter & Montagna, on 

brief), for appellees. 

 The Uninsured Employer's Fund (Fund) appeals the amount of 

compensation awarded to the survivors (claimants) of deceased 

employee, Brian Lee Thrush, by the Workers' Compensation Commission 

(commission). The Fund contends that the commission erroneously 

calculated Thrush's average weekly wage. We agree and reverse the 

award. 

 The parties are fully conversant with the record, and we 

recite only those facts necessary to a disposition of this appeal. 

 Brian Thrush, a "pipe layer by trade," was employed as a 

painter by Reichert Painting Company to work for seven hours on a 

single day, at a wage of $6 per hour. He was electrocuted in the 

course of such employment, survived by claimants, his wife and 

minor daughter. Acting on claimants' application for death 

benefits, the commission calculated an award based upon an average 

 

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

for publication. 
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weekly wage of $294, using the equation, "$6 per hour x 7 = $42 per 

day x 7." 

 To compute an employee's "average weekly wage," the commission 

must divide "[t]he earnings of the injured employee in the 

employment in which he was working at the time of the injury during 

the period of fifty-two weeks immediately preceding the date of the 

injury, . . . by fifty-two." Code § 65.2-101(1)(a). If 

application of this formula is rendered "impractical" by the 

brevity or "casual nature" of such employment, "regard shall be had 

to the average weekly amount" earned during the "fifty-two weeks 

previous to the injury . . . by a person of the same grade and 

character employed in the same class of employment in the same 

locality or community." Id. "When for exceptional reasons the 

foregoing would be unfair either to the employer or employee," an 

alternate "method of computing average weekly wages may be resorted 

to as will most nearly approximate the amount which the injured 

employee would be earning were it not for the injury." Code 

§ 65.2-101(1)(b). 

 "The reason for calculating the average weekly wage is to 

approximate the economic loss suffered by an employee or his 

beneficiaries . . . ." Bosworth v. 7-Up Distributing Co., 4 Va. 

App. 161, 163, 355 S.E.2d 339, 340 (1987). 

 It [is] the duty of the Commission 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 employee] was able to earn. 

This is a question of fact . . . which, if 

based on credible evidence, will not be 

disturbed on appeal. 
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Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339 

S.E.2d 570, 573 (1986); see Chesapeake Bay Seafood House v. 

Clements, 14 Va. App. 143, 146, 415 S.E.2d 864, 866 (1992) 

(citation omitted). 

 Here, the record reflects an employment relationship intended 

to exist for only a single day and is silent with respect to wages 

of similarly situated employees during the fifty-two weeks prior to 

Thrush's injury. See Code § 65.2-101(1)(a); John Driggs Co. v. 

Somers, 228 Va. 729, 733, 324 S.E.2d 694, 696 (1985). The 

commission, therefore, "resort[ed]" to an alternative "method" in 

ascertaining Thrush's average weekly wage, which included in the 

disputed formulation a projected work week of forty-nine hours. 

Code § 65.2-101(1)(b); Dominion Associates Group, Inc. v. Queen, 

17 Va. App. 764, 767, 441 S.E.2d 45, 47 (1994). 

 However, the components of the commission's equation must be 

supported by the evidence. The commission has previously taken 

"judicial notice" that a forty-hour work week was "normal" in the 

construction trades and nothing in this record indicated otherwise. 

 Maywalt v. Virginia Const. Co., 63 O.I.C. 229, 230 (1984). 

Nevertheless, a work week of forty-nine hours was inexplicably 

adopted by the commission, resulting in a purely conjectural 

calculation of Thrush's average weekly wage. 

 Accordingly, we reverse the award and remand the proceedings 

to the commission for redetermination of the award in accordance 

with an average weekly wage based upon a forty-hour work week at $6 
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per hour. 

 Reversed and remanded.