727 S.E.2d 436
Va. Ct. App.2012Background
- Claimant, widow and sole dependent, sought workers’ compensation after decedent’s death from a work-related accident while self-employed as Crews Home Sales & Transport.
- Decedent was a sole proprietor; draws from the business were taken weekly and treated as loans when profits were absent.
- Evidence showed the business operated at a loss in 2008–2009 and decedent did not receive wages; tax returns reflected losses.
- Deputy Commissioner denied benefits, finding no wages in the 52 weeks before death; Commission reversed, using an alternative method under Code § 65.2-101(1)(b) but limited it to $262/week, yielding a $223.75/week compensation rate.
- Appellant insurer appealed, arguing absence of wages and improper use of the minimum wage as the alternative method; appellee claimant cross-argued for wage based on hours worked and withdrawals treated as wages.
- This Court reversed the Commission’s use of the minimum wage-based calculation, stating the record lacked credible evidence that decedent would have earned such wages were it not for death.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commission properly used 65.2-101(1)(b) to compute average weekly wage. | Insurer—no evidence decedent earned wages; minimum wage method inappropriate. | Claimant—exceptional reasons justify alternative method to approximate earnings. | Reversed; cannot award wage without credible evidence. |
| Whether decedent's weekly draws constituted wages under 65.2-101(1)(1)(b). | Insurer/Claimant—draws reflect wages or earnings. | Draws were loans/nullified as earnings since no profits. | Not wages; draws did not constitute earnings. |
| Whether hours worked (70–80 per week) or other evidence should change the wage calculation. | Claimant—hours show higher wages should be used. | Irrelevant if draws are not wages and no credible evidence supports minimum wage figure. | Irrelevant given lack of credible evidence supporting any wage figure. |
Key Cases Cited
- Southwest Architectural Prods. v. Smith, 4 Va.App. 474 (1987) (wages defined as earnings; real economic gain required)
- Pilot Freight Carriers, Inc. v. Reeves, 1 Va.App. 435 (1986) (average weekly wage is a factual question reviewable for credibility)
- Georgia Pac. Corp. v. Dancy, 17 Va.App. 128 (1993) (exceptional reasons method must approximate actual earnings)
- Dinwiddie Co. Sch. Bd. v. Cole, 258 Va. 430 (1999) (average weekly wage is a question of fact; credible evidence required)
- United Airlines, Inc. v. Sabol, 47 Va.App. 495 (2006) (liberal remedial construction cannot override statutory language)