                         COURT OF APPEALS OF VIRGINIA

    Present: Judges Barrow * , Koontz and Fitzpatrick
    Argued at Alexandria, Virginia

    TWENTY-FIRST CENTURY CONCRETE,
     INC. AND AMERICAN RELIANCE
     INSURANCE COMPANY

    v.         Record No. 1621-94-4

    VINCENT GIACCHINA, HOMES BY
     VINCENT, INC. AND ASSURANCE
     COMPANY OF AMERICA                             OPINION BY
                                           JUDGE JOHANNA L. FITZPATRICK
    VINCENT GIACCHINA                              MAY 16, 1995
    v.          Record No. 1645-94-4

    TWENTY-FIRST CENTURY CONCRETE,
     INC., AMERICAN RELIANCE
     INSURANCE COMPANY, HOMES BY
     VINCENT, INC. AND ASSURANCE
     COMPANY OF AMERICA


              FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

         Cathie Howard (Richard A. Hobson; Williams & Pierce, on
         brief), for appellants/cross-appellees Twenty-First Century
         Concrete, Inc. and American Reliance Insurance Company.

         T. Chappell Aldridge for appellee/cross-appellant Vincent
         Giacchina.

         P. Dawn Bishop (Sands, Anderson, Marks & Miller, on brief),
         for appellees/cross-appellees Homes By Vincent, Inc. and
         Assurance Company of America.
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         On appeal, Twenty-First Century Concrete, Inc. (Twenty-

    First) contends that the commission erred in finding Vincent

    Giacchina (claimant) to be in the joint service of both Twenty-

    First and Homes by Vincent, Inc. (Homes) at the time of the

    injury.    As cross-error, claimant argues that the commission
         *
          Judge Barrow participated in the hearing and decision of
    this case and joined in the opinion prior to his death.
erred in denying his application for temporary total disability

benefits under Code § 65.2-500 because he failed to prove actual

wage loss and a loss to Twenty-First and Homes, corporations in

which he had a substantial ownership interest.    We hold that:

(1) credible evidence supports the commission's finding that

claimant was in the joint service of both employers, and (2) the

commission erred in requiring a financial loss to the

corporations as a prerequisite to compensation.
                              BACKGROUND

        Claimant was both chief executive officer and a working

employee of Twenty-First and Homes.    In February 1993, Homes was

the general contractor and Twenty-First was the concrete

subcontractor in the construction of a new home.    Claimant,

acting as an employee of Twenty-First, poured concrete for a

fireplace hearth on February 24, 1993.     The next day, he returned

to the work site for a progress inspection and to check the

hearth.    After claimant inspected the hearth, one of the on-site

carpenters asked him to check a second-story stud wall that had

been recently changed.    Claimant climbed a ladder to look at the

stud wall and to check the chimney flue's alignment with the

roof.    Claimant fell from the ladder and fractured several ribs.

        Before the accident, claimant received a salary from both

corporations "by regular check or as needed," and he had

authority to decide how much money to withdraw.    Claimant did not

draw income from either corporation during his period of




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disability.    The construction of the house continued, and

claimant was required to reassign other employees to cover for

his absence.    The parties agree that claimant sustained an injury

by accident arising out of and in the course of his employment,

which rendered him totally disabled from February 25, 1993 until

May 20, 1993.    Additionally, the parties stipulated that his

combined average weekly wage using his 1992 W-2 statements is

$1,025.13.    Each employer argues that:   (1) claimant was working

for the other corporation at the time of the accident, and (2)

because the corporations suffered no actual loss, and claimant

was paid by draws over which he had control, he sustained no wage

loss.
                       JOINT EMPLOYER LIABILITY

        Twenty-First argues that the commission erred in finding

that claimant was in the joint service of both employers when he

was injured.

        Code § 65.2-529 of the Workers' Compensation Act provides

that:
             [w]henever any employee for whose injury or
             death compensation is payable under this
             [Act] shall at the time of the injury be in
             the joint service of two or more employers
             subject to this title, such employers shall
             contribute to the payment of such
             compensation in proportion to their wage
             liability to such employee.


On appeal, "we review the evidence in the light most favorable to

the prevailing party."     R.G. Moore Bldg. Corp. v. Mullins, 10 Va.

App. 211, 212, 390 S.E.2d 788, 788 (1990).    "Factual findings of



                                   3
the . . . [c]ommission will be upheld on appeal if supported by

credible evidence."   James v. Capitol Steel Constr. Co., 8 Va.

App. 512, 515, 382 S.E.2d 487, 488-89 (1989).

     Credible evidence supports the commission's finding that

claimant was working for both employers at the time of the

accident.   Although the deputy commissioner found only Homes

liable for benefits, he found claimant "very candid in his

admission that he . . . was engaged in the work of both employers

when he was ascending the ladder to inspect the chimney and stud

wall."   The full commission adopted this credibility finding and

accepted claimant's testimony that he was performing work for

both employers when he fell.
                               WAGE LOSS

     Both employers argue that claimant did not sustain a wage

loss as a result of his accident because:   (1) he had the

authority to draw his regular income from the corporations, and

(2) the corporations did not suffer any monetary loss.

     At the hearing before the deputy commissioner, the parties

stipulated that:   (1) claimant's injury arose out of and in the

course of his employment, and (2) claimant's average weekly wage

could be determined from his 1992 W-2 statements.   The W-2

statements showed claimant's combined income from both employers

to be $53,307, with an average weekly wage of $1,025.13.     Neither

employer disputed that claimant was totally disabled as a result

of the accident from February 25, 1993 to May 20, 1993.



                                   4
     Code § 65.2-500(A) provides the compensation formula in

total disability cases:
          When the incapacity for work resulting from
          the injury is total, the employer shall pay,
          or cause to be paid, as hereinafter provided,
          to the injured employee during such total
          incapacity, a weekly compensation equal to 66
          2/3 percent of his average weekly wages, with
          a minimum not less than 25 percent and a
          maximum of not more than 100 percent of the
          average weekly wage of the Commonwealth as
          defined herein.


"Benefits under [Code §§ 65.2-500 and 65.2-502] for total and

partial incapacity compensate the employee for loss of earnings

resulting from the injury."     Crystal Oil Co., Inc. v. Dotson, 12

Va. App. 1014, 1020-21, 408 S.E.2d 252, 255 (1991).    "The extent

of earning capacity must be ascertained from the evidence, and

such is not limited to any special class of proof.    All legal

facts and circumstances surrounding the claim should properly be

considered . . . ."   Pilot Freight Carriers, Inc. v. Reeves, 1

Va. App. 435, 441, 339 S.E.2d 570, 573 (1986).    Compensation in

both total and partial disability cases "is ultimately dependent

upon and determined on the loss of wages."     Nicely v. Virginia

Elec. & Power Co., 195 Va. 819, 823, 80 S.E.2d 529, 531 (1954).

     The parties agree that the characterization of draw as pure

profits or profits and earnings is not an issue on appeal.    We

hold that the commission erred in finding no loss of earning

capacity or actual wage loss.    We hold that the commission erred

in finding that claimant did not experience any actual wage loss.

 Claimant was totally incapacitated and earned no wages for the



                                   5
period February 25, 1993 to May 20, 1993.   Thus, even though

claimant had authority to draw wages from the corporations, he

was not paid because he had to reassign other employees to

perform his duties.   Additionally, we find no authority that

requires a worker to show a loss to his employer, even when the

worker is part owner of the employer corporation.   Workers'

compensation benefits compensate the worker for his own loss of

earnings or earning capacity, not losses suffered by his or her

employer.   In this case, claimant should be compensated as a

worker for his loss of earning capacity caused by his work-

related injury.

     Accordingly, we affirm the commission's finding that

claimant was in the joint service of both employers and reverse

the commission's denial of benefits.
                                              Affirmed in part,
                                              reversed in part,
                                              and remanded.




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