John Driggs Co., Inc. v. Somers, 831370

• Decision Date: 18 January 1985
• Docket Number: No. 831370,831370
• Citation: 228 Va. 729,324 S.E.2d 694
• Parties: JOHN DRIGGS COMPANY, INC., et al. v. Thomas A. SOMERS. Record
• Court: Virginia Supreme Court

Page 694

324 S.E.2d 694

228 Va. 729

JOHN DRIGGS COMPANY, INC., et al. v. Thomas A. SOMERS.

Record No. 831370.

Supreme Court of Virginia.

Jan. 18, 1985.

William L. Carey, Fairfax (Benjamin J. Trichilo; Lewis & Trichilo, Fairfax, on brief), for appellants.

Michael W. Heaviside, Alexandria (Ashcraft & Gerel, Alexandria, on brief), for appellee.

Present: All the Justices.

THOMAS, Justice.

In this workers' compensation case, the Court is called upon to decide whether the Industrial Commission had authority, under the circumstances herein pertaining, to amend an average weekly wage figure contained in an agreement reached between the claimant and his employer's carrier. A deputy commissioner ruled that the amendment sought by the claimant was authorized by statute and modified the agreement to increase the claimant's compensation. The full Commission affirmed the deputy commissioner's award.

The employer and its carrier appeal, contending in essence that since the claimant made no showing of fraud or of mutual mistake of fact, there exists no basis upon which to modify the compensation agreement. Therefore, according to the employer, the agreement between its carrier and its employee must be left intact. We disagree.

The claimant, Thomas A. Somers, injured his back on March 26, 1982, while working as a carpenter for John Driggs Company, Inc. At the time he was injured, Somers had worked for Driggs for only four weeks.

Driggs' carrier accepted Somers' claim as compensable. The carrier requested that Somers submit a copy of his 1981 W-2 Wage and Tax Statement. Somers complied with this request even though his 1981 W-2 form did not relate to work done for Driggs. In 1981, Somers had been employed by G & C Construction Corporation as a carpenter and pile driver. He worked approximately ten months for that company and earned $15,982.95.

The carrier used the 1981 W-2 form to calculate Somers' average weekly wage while working for Driggs. The carrier determined that Somers' average weekly wage for the purpose of compensation for the 1982 injury was $307.36. The carrier arrived at this amount by dividing Somers' 1981 wages by fifty-two. The carrier prepared a Memorandum of Agreement containing the $307.36 wage figure and presented the agreement to Somers for his signature.

Somers had nothing whatever to do with the calculation of the wage figure. Somers, who was incapacitated at the time and who was not receiving compensation, signed the agreement. Eight months after signing the agreement he sought a hearing with the Commission to have the average weekly wage figure modified.

The heart of the employer's argument is that agreements between claimants and employers are to be encouraged; that such agreements further the purposes of the Workers' Compensation Act to provide compensation to injured employees in as expeditious a manner as possible; and that once an agreement has been made, it should not be lightly set aside. We agree with all these points but they do not answer the central problem posed by this appeal: whether the average weekly wage figure set forth in the agreement was miscalculated and whether the Commission was empowered to correct any such miscalculation.

Somers contends, and the Commission agreed, that the method of calculation used by the carrier violated Code § 65.1-6. That code section reads in pertinent part as follows:

Unless the context otherwise requires, "average weekly wages" means the 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; but if the injured employee lost more than seven consecutive calendar days during such period, although not in the same week, then the earnings for the remainder of the fifty-two weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. When the employment prior to the injury extended over a period of less than fifty-two weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results fair and just to both parties will be thereby obtained. When by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the fifty-two weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community.

But when for exceptional reasons the foregoing would be unfair either to the employer or employee, such other 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.

In our opinion, the carrier did not adhere to the requirements of this code section. First, this section nowhere explicitly permits the carrier to use wage figures from a previous year and a different employer to make the average weekly wage calculation. It permits the use of the wages in the fifty-two weeks prior to the injury...