COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, McCl anahan and Retired Judge Overton ∗ Argued at Richmond, Virginia

THE PEPSI BOTTLING GROUP, INC. AND OLD REPUBLIC INSURANCE CO. MEMORANDUM OPINION ∗∗ BY v. Record No. 2310-06-2 JUDGE ELIZABETH A. McCLANAHAN MAY 22, 2007 MARVIN WILLIAM REED

FROM THE VIRGINIA WORKER S’ COMPENSATION COMMISSION Dale W. Webb (Frankl Miller & Webb, on brief), for appellants. Stephen T. Harper (Kerns, Kasten baum & Reinhardt, on brief), for appellee.

The Pepsi Bottling Group, Inc. and its insurer (collectively “Pepsi”) appeal a decision of the Workers’ Compensation Commission in favor of claimant, Marvin W. Reed, wherein the commission (1) found a mutual mistake of fact in the subject agreement to pay benefits between the parties in referencing Reed’s compensable inju ry as a “back strain”; (2) corrected the award entered pursuant to the agreement to reflect R eed actually sustained a compensable bilateral shoulder injury; (3) awarded Reed temporary partial disability be nefits in various amounts over a period of several months; (4) awar ded Reed temporary to tal disability benef its from the time of the surgery to his left shoulder and continuing; (4) awarded Reed permanent partial disability benefits for permanent partial impairment of his upper right extremity; and (5) awarded Reed lifetime medical benefits related to his compensabl e injury to both his left and right shoulders.

∗ Retired Judge Overton took part in the consideration of this case by designation pursuant to Code § 17.1-400(C).

∗∗ Pursuant to Code § 17.1-413, this opin ion is not designate d for publication.- 2 - In summary, Pepsi contends on appeal that the full commission erred (1) in failing to apply a “clear and convincing” evidentiary standard to set asid e an existing award and enter a new award based upon an alleged mutual mistak e of fact; (2) in finding Reed proved he sustained a compensable bilateral shoulder inju ry; (3) in finding Reed’s claim of bilateral shoulder injury was “seasonably pr esented”; (4) in calculating Re ed’s average weekly wage loss for his temporary partial disability on a weekly basis rather than a quart erly basis; and (5) in failing to address the permanent partial disabi lity award by the deputy commissioner when Pepsi challenged that award in its request for review to the full commission.

We have reviewed the record and the comm ission’s opinion and fi nd this appeal is without merit. Accordingly, we affirm for th e reasons stated by the commission in its final opinion. 1 See Reed v. Pepsi Bottling Group, Inc. , VWC File No. 221-23-44, 2006 VA Wrk. Comp. LEXIS 702 (August 15, 2006).

Affirmed.

1 We note as to Issue 4 that Code § 65.2-502 specifically provides, in pertinent part, “the employer shall pay . . . to the injure d employee during [partial] incapacity a weekly compensation equal to 66 2/3 percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereaft er . . . .” (Emphasis added.) Consistent with this language, a weekly calculation is the appropriate manner in which to determine a claimant’s temporary partial disabil ity benefits, and not the commission’s alternative quarterly calculation (used as a matter of conve nience), when a quarter ly calculation would not account for a claimant’s actual wage loss in any particular week during which he is entitled to such benefits, as the commission found in the instant case. See Williams v. Victory Van Moving Co. , VWC 208-87-28, 2005 VA Wrk. Comp. LEXI S 677 (August 30, 2005); Deel v. Buchanan General Hospital , VWC File No. 215-84-18, 2005 VA Wrk. Comp. LEXIS 707 (August 8, 2005).