Uninsured Employer's Fund v. Thrush, 970477

• Decision Date: 09 January 1998
• Docket Number: No. 970477,970477
• Citation: 496 S.E.2d 57,255 Va. 14
• Parties: The UNINSURED EMPLOYER'S FUND v. Clara Annette THRUSH, et al. Record
• Court: Virginia Supreme Court

Page 57

496 S.E.2d 57

255 Va. 14

The UNINSURED EMPLOYER'S FUND v. Clara Annette THRUSH, et al.

Record No. 970477.

Supreme Court of Virginia.

Jan. 9, 1998.

John J. Beall, Jr., Senior Assistant Attorney General (Richard Cullen, Attorney General; Julia D. Tye, Assistant Attorney General, Richmond, on brief), for appellant.

Robert J. Macbeth, Jr., Norfolk (Matthew H. Kraft; Rutter & Montagna, Norfolk, on brief), for appellees.

Present: All the Justices.

CARRICO, Chief Justice.

This is a workers' compensation case involving an employee who was hired to work only one day for a total wage of $42 and was killed after working a portion of the day. The case has twice been before the Workers' Compensation Commission (the Commission) and the Court of Appeals. In the second round, the Commission awarded the employee's widow and minor child compensation at a weekly rate of $160, based upon an average weekly wage of $240. The Court of Appeals affirmed the award. Finding that the case involves matters of significant precedential value, we awarded an appeal to the Uninsured Employer's Fund (the Fund), which became a party to the proceeding because the employer was uninsured.

The employee, Brian Lee Thrush (Brian), a pipelayer by trade, lived and worked in Florida. However, on December 8, 1991, he was in Virginia for a court appearance the next day, planning to return to Florida immediately afterward.

Reichert Painting Company, a sole proprietorship owned by Nancy Reichert (Reichert), contracted with Cavalier Ford, Inc. of Chesapeake to paint light poles on Cavalier's car lot. Needing extra help, Reichert hired Brian, a part-time painter, to work seven hours on December 8 at $6 per hour. After about an hour and a half of painting, Brian apparently fell from a "mobil[e] scaffold," came into contact with a high-voltage electric line, and died a short time later of "[s]hock due to electrocution."

On December 7, 1993, Brian's widow, Clara Annette Thrush, and his minor child, Teauna Mae (collectively, Thrush), filed with the Commission a claim for death benefits. A deputy commissioner entered an award in favor of the widow and child for death benefits of $196 per week, based upon an average weekly wage of $294, derived from the formula $6 per hour X seven hours = $42 per day X seven days = $294 per week. Upon the Fund's request for review, the full Commission affirmed the award.

The Fund appealed the award to the Court of Appeals (Thrush I ). In an unpublished memorandum opinion, the Court of Appeals reversed the Commission's decision, stating that "a work week of forty-nine hours was inexplicably adopted by the commission, resulting in a purely conjectural calculation of [Brian's] average weekly wage." The Court of Appeals remanded the case to the Commission "for redetermination of the award in accordance with an average weekly wage based upon a forty-hour work week at $6 per hour."

Upon remand, the Commission interpreted the Court of Appeals' action as a "remand ... with directions to find that the average weekly wage of the deceased employee was $240." Accordingly, the Commission entered an award in the amount of $160 per week, based upon an average weekly wage of $240, derived from the formula $6 per hour X forty hours per week = $240.

The Fund appealed this award to the Court of Appeals (Thrush II ). The Fund took the position that "the amount of the average weekly wage [was] not determined by the unpublished opinion [in Thrush I ]." However, in an unpublished per curiam opinion, the Court of Appeals ruled that the Fund sought to raise in Thrush II "the precise issue that was previously determined [in Thrush I ]" and, therefore, that the "law of the case" doctrine barred the court from reexamining the issue and "mandate[d] affirmance of [the Commission's award]." Hence, the Court of Appeals did not reach the merits of the Fund's appeal.

As noted in the Court of Appeals' opinion in Thrush II, the "law of the case" doctrine provides as follows Where there have been two appeals in the same case, between the same parties, and the facts are the same, nothing decided on the first appeal can be re-examined on a second appeal.... It differs from res judicata in that the conclusiveness of the first judgment is not dependent upon its finality.

American Filtrona Co. v. Hanford, 16 Va.App. 159, 164, 428 S.E.2d 511, 514 (1993) (quoting Steinman v. Clinchfield Coal Corp., 121 Va. 611, 620, 93 S.E. 684, 687 (1917)).

We must first determine whether the Court of Appeals' "law of the case" ruling is binding upon this Court and bars its consideration of the merits of the case. If this question is answered in the affirmative, our inquiry is at an end.

On this question, Thrush's counsel stated in oral argument before this Court:

The Court of Appeals correctly said that [the holding of Thrush I ] is the law of this case. There was no appeal taken by [the Fund] from the initial determination of the Court of Appeals of Virginia [in Thrush I ], which essentially told them what the computation of the average weekly wage could have been, and I think that would have been the appropriate time for [the Fund] to bring that argument before this Court. I think they are too late to try to bring it to you today.

We disagree with Thrush. The Fund was not bound to appeal from the Court of Appeals' decision in Thrush I. This is made clear by Code § 17-116.09, one of the Code sections enacted as part of the legislation creating the Court of Appeals. Code § 17-116.09 states as follows:

A judgment, order, conviction, or decree of a circuit court or award of the Virginia Workers' Compensation Commission may be affirmed, or it may be reversed, modified, or set aside by the Court of Appeals for errors appearing in the record. If the decision of the Court of Appeals is to reverse and remand the case for a new trial, any party aggrieved by the granting of the new trial may accept the remand or proceed to petition for appeal in the Supreme Court pursuant to § 17-116.08.

While the Court of Appeals in Thrush I may have told the parties what the computation "could have been," the court did not modify the Commission's award as Code § 17-116.09 permits but reversed the award and remanded the case with directions for the Commission to make a new award. The Fund was entitled to accept the remand, rather than petition for an appeal to this Court, and to attempt on remand to persuade the Commission to make an award favorable to the Fund. As it happened on remand, the Commission made an award that was not favorable to the Fund. This prompted the Fund to appeal the award to the Court of Appeals in Thrush II and then to seek an appeal to this Court, a course of action which, in our opinion, is permissible under Code § 17-116.09.

To say, as Thrush would have us say, that the Court of Appeals' application of the "law of the case" doctrine is binding at this stage of the appellate process would mean that, by accepting the remand, the Fund effectively waived its right to seek an ultimate appeal to this Court from an unfavorable decision following the remand. In our opinion, this is not the result the General Assembly intended by its enactment of Code § 17-116.09.

This brings us to the merits of the case. The Fund contends that the Commission erred in calculating the average weekly wage in this case "as if the worker was a full time, forty hour a week employee." On the other hand, Thrush contends that the Commission's "determination that [Brian's] average weekly wage was $240.00 is fully supported in both fact and law."

Thrush notes that the purpose " 'for calculating the average weekly wage is to approximate the economic loss suffered by an employee or his beneficiaries.' " (quoting Bosworth v. 7-Up Dist. Co., 4...