County of Frederick Fire and Rescue v. Dodson

• Decision Date: 06 June 1995
• Docket Number: No. 1521-94-4,1521-94-4
• Citation: 457 S.E.2d 783,20 Va.App. 440
• Court: Virginia Court of Appeals
• Parties: COUNTY OF FREDERICK FIRE AND RESCUE and Virginia Municipal Group Self-Insured Association v. Annmarie G. DODSON. Record

Page 783

457 S.E.2d 783

20 Va.App. 440

COUNTY OF FREDERICK FIRE AND RESCUE and Virginia Municipal Group Self-Insured Association v. Annmarie G. DODSON.

Record No. 1521-94-4.

Court of Appeals of Virginia Alexandria.

June 6, 1995.

Susan A. Evans, Fairfax (Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellants.

J. Sloan Kuykendall III, Winchester (Kuykendall, Johnston, Coleman & Kuykendall, on brief), for appellee.

Present: MOON, C.J., FITZPATRICK, J., and DUFF, Senior Judge.

MOON, Chief Judge.

County of Frederick Fire and Rescue and its insurer ("employer") contend that the Workers' Compensation Commission erred in finding (1) that Annmarie G. Dodson's (claimant) two employments were substantially similar for the purposes of calculating her average weekly wage; and (2) that she was entitled to further compensation because she had not been released to return to work for employer. We disagree and affirm the commission's decision.

Claimant was employed part-time as a "fire-medic" for the Frederick County Fire and Rescue Department. Concurrently, claimant also held a full-time position as a cardiac technician and emergency room nurse with the Prince William Hospital. On June 23, 1993, claimant sustained a compensable injury to her right knee while fighting a brush fire. She was deemed totally disabled from both employments from June 24, 1993, through August 19, 1993. On August 20, 1993, claimant returned to work at Prince William Hospital with a light duty restriction. Her doctor gave her a full-duty release to return to the hospital on September 17, 1993, but did not give her a full-duty release to return to her job at Frederick County Fire and Rescue. Claimant's inability to return to her work as a fire-medic formed the basis for her claim for temporary partial disability benefits.

In determining the amount of benefits claimant would be awarded, the commission ruled that her two employments were substantially similar for the purpose of calculating claimant's average weekly wage. The commission based its ruling, in large part, on a letter from Thomas W. Owens, Director of Frederick County Fire and Rescue, which described the duties of the fire-medics who worked for employer. The letter explained that the fire-medics are required to perform both firefighting and emergency medical duties. The department actively recruits cardiac technicians, paramedics, and emergency nurses to serve as part-time fire-medics to ensure that it has a consistent advanced life support service. Response to medical emergencies accounts for seventy-three percent of the department's response activity. The letter concluded that claimant was also required to perform firefighting duties, but emergency medical services was her primary mission as a part-time fire-medic.

I. Average Weekly Wage

On appeal, employer first argues that the commission's finding that claimant's two employments were substantially similar under the Virginia Workers' Compensation Act is not supported by the evidence. Essentially, employer would have us hold that because some of claimant's duties with the fire and rescue department, such as fighting fires and performing maintenance on the firefighting equipment, were not required for her work with the hospital, her two employments cannot be said to be substantially similar. We disagree.

Under Virginia law, workers' compensation benefits are computed on the basis of the employee's "average weekly wage." Code § 65.2-101. Virginia follows the majority rule that when an employee is injured on one job while in concurrent employment, the average weekly wage compensated is based on the combined earnings of both jobs if, but only if, the employments are related or similar. See First Virginia Banks, Inc. v. McNeil, 8 Va.App. 342, 343, 381 S.E.2d 357, 358 (1989) (where claimant is employed by more than one employer, claimant's combined earnings are used to arrive at the average weekly wage only if the employments are "substantially similar").

In the past, the commission has held that in applying the similar employment rule, it "must ... recognize that there are no two jobs which are exactly alike," but that "the entire spectrum of duties should be considered." Hall v. American Janitor Service, 61 OIC 172, 175 (1982). The commission's statement in Hall, which is cited by both the employer and claimant, is open to conflicting interpretations. The employer argues that because some of the claimant's duties as a fire-paramedic exceeded the scope of her employment as an emergency medical technician, the employments were not substantially similar. Claimant argues, on the other hand, that because all of her duties and skills as an emergency technician were utilized in her job as a firefighter-paramedic, the employments would be substantially similar.

Other jurisdictions have held that if the employment is of the same class or kind, the similar or related employment rule may apply to work done during irregular, off hours. See generally Arthur Larson, The Law of Workmen's Compensation, § 60.31(b) (1994). For example, where a workman was regularly employed as an electric welder for one employer and repaired gasoline tanks for another employer on Saturday afternoons and Sundays as needed, his compensation for injury during the off hours job was calculated by including earnings from the full time job because both were electric welding jobs. See Sprout & Davis, Inc. v. Toren, 118 Ind.App. 384, 78 N.E.2d 437 (1948). In another case, a high school dietician, injured while supervising a church dinner, was allowed to combine earnings from both activities. See McDowell v. Flatbush Congregational Church, 277 N.Y. 536, 13 N.E.2d 462 (1938).

In Smith v. James, 12 A.D.2d 833, 209 N.Y.S.2d 622 (1961), the Appellate Division affirmed an...