Dinwiddie County School Bd. v. Cole

• Decision Date: 05 November 1999
• Docket Number: Record No. 982520.
• Citation: 258 Va. 430,520 S.E.2d 650
• Court: Virginia Supreme Court
• Parties: DINWIDDIE COUNTY SCHOOL BOARD, et al. v. Delorice M. COLE.

520 S.E.2d 650

258 Va. 430

DINWIDDIE COUNTY SCHOOL BOARD, et al. v. Delorice M. COLE.

Record No. 982520.

Supreme Court of Virginia.

November 5, 1999.

Ralph L. Whitt, Jr. (Williams, Lynch & Whitt, on brief), Richmond, for appellants.

Eileen McNeil Newkirk (Taylor, Hazen, Kauffman & Pinchbeck, on brief), Richmond, for appellee.

Present: All the Justices.

CARRICO, Chief Justice.

Under the Virginia Workers' Compensation Act, awards of compensation benefits are based upon the average weekly wage. Code § 65.2-101. In the present case, the question presented is whether an employee who performs two separate jobs for her employer and is injured in one may combine the wages received from both in calculating the average weekly wage for compensation purposes. Finding that the Workers' Compensation Commission (the Commission) did not err in combining the employee's wages and awarding compensation accordingly, we will affirm.

The employee, Delorice M. Cole (Cole), has been employed by the Dinwiddie County School Board (the School Board) as a school bus driver for thirty-one years and as a teacher's aide for twenty years. Each year, she signs a separate contract for each position, and she is paid by the School Board separately for each job. Although the School Board has only one bank account, Cole is paid from the Transportation Department's budget for her service as a school bus driver and from the Special Education Department's budget for her work as a teacher's aide.

On December 2, 1996, while performing her job as a teacher's aide, Cole fell and injured her shoulder. Her injury did not prevent her from performing as a teacher's aide and she lost no time from work in that capacity, but the injury did prevent her performance as a school bus driver and she lost certain periods of time from work in that job.

On January 30, 1997, Cole filed with the Commission a claim seeking the award of medical benefits as well as temporary disability benefits for periods of lost work as a school bus driver. A deputy commissioner heard the case. Applying what has been termed the "dissimilar employment rule" or the "substantially similar doctrine," the deputy commissioner found that, "[although there are minor overlapping duties required in the jobs of bus driver and teacher's aide,... the two jobs are not sufficiently `similar'... to aggregate the earnings in calculating the average weekly wage." Accordingly, the deputy commissioner awarded Cole no benefits for lost wages but did allow her "medical benefits causally related to the industrial accident."

Cole appealed to the full Commission. The Commission agreed that Cole's jobs were dissimilar but held that "[slime the employer is the same, the wages earned in both jobs should be combined." Cole v. Dinwiddie County School Bd., 76 O.W.C. 480, 485 (1997). Accordingly, the Commission calculated Cole's average weekly wage based upon her combined income from both positions and awarded her payment of temporary partial disability benefits for lost earnings. Id. at 485-86.

The School Board appealed to the Court of Appeals, and that Court affirmed the Commission's award. Dinwiddie County School Bd. v. Cole, 28 Va.App. 462, 465, 506 S.E.2d 36, 37 (1998). We awarded the School Board this appeal.¹

Code § 65.2-101, part of the Virginia Workers' Compensation Act, states that "`[a]verage weekly wage' means ... [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, divided by fifty-two...." (Emphasis added.) The parties focus their argument on the phrase, "in the employment," italicized above, and debate the applicability of the dissimilar employment rule to the situation at hand, i.e., where there are two jobs but only one employer.

The School Board argues that, in this situation, the Workers' Compensation Act required the Commission "to analyze the similarity of the employee's two jobs and to combine the earnings from each job only if the two employments are 'similar'" and that the Commission "wrongly disregarded the dissimilarity of Cole's two jobs and combined the wages . . . to calculate the average weekly wage." Cole argues that the substantial similarity doctrine simply does not apply "when the employee works for one employer, albeit in two positions."

Code § 65.2-101 does not define the phrase, "in the employment," or mention the terms, "similar," "substantially similar," or "dissimilar." The statute, therefore, is not the source of the dissimilar employment rule. Rather, the rule originated in the decision of the Industrial Commission (now the Workers' Compensation Commission) in Thompson v. Herbert, 4 O.I.C. 310 (1922). That case involved an employee who worked part time as a handy man at a cold storage plant and part time as a teacher in the public schools. He was killed while working at the cold storage plant, and his widow sought to combine his earnings from that job with his earnings as a school teacher. Considering the same statutory language that is now contained in Code § 65.2-101 and finding that the deceased's two jobs were "totally different," the Commission held it was not permissible to combine wages earned in dissimilar employment because such action would "nullify" the statutory language defining "average weekly wage" as "the earnings of the injured employee in the employment in which he was working at the time of the injury." Id. at 316.

This Court has considered the dissimilar employment rule on two previous occasions, and, in each instance, has applied the rule to deny the aggregation of earnings in dissimilar employment in calculating the average weekly wage. Uninsured Employer's Fund v. Thrush, 255 Va. 14, 496 S.E.2d 57 (1998) (impermissible to combine wages from regular job as pipelayer with wages from temporary job as painter because of dissimilarity in work); Graham v. Gloucester Furniture Corp., 169 Va....