                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements
Argued at Alexandria, Virginia


FEDERAL MOGUL FRICTION CORPORATION AND
 TRAVELERS INSURANCE COMPANY
                                            MEMORANDUM OPINION* BY
v.   Record No. 2520-02-4                JUDGE JEAN HARRISON CLEMENTS
                                              SEPTEMBER 16, 2003
GERALD WAYNE BUTCHER


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          J. David Griffin (Fowler Griffin Coyne
          Coyne & Patton, P.C., on briefs), for
          appellants.

          Nikolas E. Parthemos (Parthemos & Bryant,
          P.C., on brief), for appellee.


     Federal Mogul Friction Corporation and Travelers Insurance

Company (collectively, employer) appeal an award by the Workers'

Compensation Commission (commission) of temporary partial

disability benefits to Gerald Wayne Butcher (claimant) upon his

change-in-condition application.   Employer contends the

commission erred in failing to use a fifty-two-week average of

claimant's post-injury earnings to compute claimant's temporary

partial disability rate.    Finding no error, we affirm the

commission's judgment.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
        As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of

the proceedings as are necessary to the parties' understanding

of the disposition of this appeal.

                            I.   BACKGROUND

        The relevant facts in this appeal are not in dispute.   On

January 8, 2001, claimant sustained a right shoulder injury

arising out of and in the course of his employment with

employer.    Employer accepted the injury as compensable.

Claimant suffered no loss in wages until April 23, 2001, when he

had surgery on the shoulder.     As a result of the surgery,

claimant was out of work from April 23, 2001, through June 4,

2001.    The parties entered into an agreement providing for

temporary total disability benefits and agreed that claimant's

pre-injury average weekly wage was $983.58.    Based on that

agreement, the commission awarded claimant temporary total

disability benefits for that period.

        Upon returning to light duty work on June 5, 2001, claimant

suffered no wage loss and, in fact, by working overtime, earned

more on average each week than his pre-injury average weekly

wage, until September 17, 2001, when he was transferred from his

maintenance job to a production job.     Less overtime was

available in the production job, and claimant's pay decreased as


                                 - 2 -
a result.1   The wage reports in evidence established that from

September 17, 2001, through February 10, 2002, claimant earned

less than the agreed upon pre-injury average weekly wage of

$983.58 for at least seventeen of the twenty-one weeks in that

period.   The wage reports further established that after

February 25, 2002, claimant earned less than the agreed upon

pre-injury average weekly wage for both of the weeks reported.

Because on average his earnings each week were substantially

below his pre-injury average weekly wage as a consequence of the

job transfer, claimant filed a change-in-condition application,

seeking temporary partial disability benefits for the period

September 17, 2001, through February 10, 2002, and the period

beginning February 25, 2002, and continuing thereafter.2

     After holding an evidentiary hearing on March 20, 2002, the

deputy commissioner ruled that claimant was "entitled to

temporary partial disability compensation for the periods he was

unable to earn his pre-injury average weekly wage."   After

considering the parties' arguments regarding calculation of

claimant's post-injury average weekly wage, the deputy

commissioner further ruled as follows:



     1
       Claimant testified that he worked all the overtime that
was offered, with the exception of one day, and that he would
work more overtime if it were offered.
     2
       Claimant was totally disabled from February 11, 2002,
through February 24, 2002, and received temporary total
disability benefits for that period.
                              - 3 -
            We agree with the claimant, and conclude
            that his post-injury average weekly wage for
            purposes of any temporary partial disability
            compensation should be calculated
            prospectively based on his actual reduced
            earnings. Based on the wage information
            submitted by the employer, we conclude that
            the claimant's post-injury average weekly
            wage for the period from September 17, 2001,
            through February 10, 2002, is $775.04, said
            sum representing the total of his wages
            during that time period ($16,275.89) divided
            by the 21 weeks in the period.
            Significantly less wage documentation exists
            in the record for calculation of the
            post-injury average weekly wage for the
            continuing period commencing February 25,
            2002, but the available wage information
            indicates that the claimant's average weekly
            wage at that time was $596.60.

The deputy commissioner calculated claimant's post-injury

average weekly wage for the period beginning February 25, 2002,

and continuing thereafter by averaging claimant's total earnings

($1,193.20) for the two-week period for which pay records were

available between February 25, 2002, and the hearing on March

20, 2002.   The record, held open for seven days after the

hearing for the parties to confirm this average weekly wage

calculation, closed on March 27, 2002.   No additional evidence

was presented.   An award was entered based on these

calculations.

     By opinion issued August 28, 2002, the commission affirmed

the ruling of the deputy commissioner, finding that computing

claimant's post-injury average weekly wage by averaging

claimant's earnings over fifty-two weeks, as advocated by

                                - 4 -
employer, would unfairly deprive claimant of temporary partial

disability benefits to which he was entitled under the Workers'

Compensation Act.

        This appeal followed.

                                II.   ANALYSIS

        The sole issue on appeal is whether, for purposes of

computing claimant's temporary partial disability benefits, the

commission erred in calculating claimant's post-injury average

weekly wage.

        Employer contends the method used by the commission to

calculate claimant's post-injury average weekly wage was

improper because it was not the same fifty-two-week-average

method used to calculate claimant's pre-injury average weekly

wage.    Employer argues that, just as fluctuations in earnings

are averaged to determine pre-injury average weekly wages

pursuant to Code § 65.2-101, the same method for determining

compensation benefits must be applied post-injury.    In this

case, employer's argument continues, the commission's method of

basing the calculation of claimant's post-injury average weekly

wage solely on his diminished wages following his transfer to

the production department, rather than on his total earnings

over fifty-two weeks following the injury, unjustly enriched

claimant because employer was not credited for those weeks in

which claimant's earnings exceeded his pre-injury average weekly


                                      - 5 -
wage.    Thus, employer concludes, the commission's "piecemeal

selection of earnings" was unfair and improper.    We disagree.

        In reviewing the commission's decision, we view the

evidence in the light most favorable to the party prevailing

before the commission.    See Allen & Rocks, Inc. v. Briggs, 28

Va. App. 662, 672, 508 S.E.2d 335, 340 (1998).    The commission's

factual findings are conclusive and binding on appeal if

supported by credible evidence in the record.    Southern Iron

Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34

(1993).

        As employer acknowledges in its brief, temporary partial

disability benefits are intended to compensate an employee for

the decrease in his earnings attributable to a compensable

injury.    See Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.

435, 441, 339 S.E.2d 570, 573 (1986).    Code § 65.2-502 provides

that the compensation to be paid by an employer to an injured

employee during the employee's partial incapacity for work is

"66 2/3 percent of the difference between [the employee's]

average weekly wages before the injury and the average weekly

wages which [the employee] is able to earn thereafter."

(Emphasis added.)    In Pilot Freight Carriers, Inc., we observed

that

             [t]he extent of earning capacity must be
             ascertained from the evidence, and as such
             is not limited to any special class of
             proof. All legal facts and circumstances
             surrounding the claim should properly be
                                 - 6 -
          considered and due weight given them by the
          [c]ommission.

               It [is] the duty of the [c]ommission to
          make the best possible estimate of . . .
          impairments of earnings from the evidence
          adduced at the hearing, and to determine the
          average weekly wage . . . . This is a
          question of fact to be determined by the
          [c]ommission which, if based on credible
          evidence, will not be disturbed on appeal.

Id. (citation omitted).   "Thus, if credible evidence supports

the commission's findings regarding the claimant's average

weekly wage, we must uphold those findings."   Chesapeake Bay

Seafood House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864,

866 (1992).

     This case came before the commission on claimant's

change-in-condition application for temporary partial disability

benefits following the reduction in his earnings on September

17, 2001, when he was transferred by employer to a different

light duty job.   For purposes of temporary partial disability

compensation, claimant suffered no wage loss before the transfer

and was, thus, not entitled to such compensation prior to the

job transfer.    See Lam v. Kawneer Co., Inc., 38 Va. App. 515,

518, 566 S.E.2d 874, 875-76 (2002) (holding that a compensable

injury without a loss of earnings does not entitle a claimant to

compensation).    As a result of the job transfer, however,

claimant's earnings were substantially below his pre-injury

average weekly wage, and the commission concluded he was


                                - 7 -
entitled to temporary partial disability benefits because of the

diminution in his earnings.

     In considering the question of how claimant's post-injury

average weekly wage should be determined, the commission found

that it would be unfair to average claimant's earnings over

fifty-two weeks, as proposed by employer.    Rather, the

commission found that averaging claimant's earnings

"prospectively[,] based on his actual reduced earnings" from the

date the decrease in wages occurred constituted the best and

fairest indication of claimant's partial wage loss.   Thus, the

commission based its first award of temporary partial disability

benefits on the weekly average of claimant's post-injury

earnings from September 17, 2001, the date claimant's wages

decreased, through February 10, 2002, when claimant's temporary

total disability commenced, and its second award on the weekly

average of claimant's post-injury earnings from February 25,

2002, the commencement of the current, continuing period of

temporary partial disability, through March 27, 2002, the day

the evidentiary record in the case closed.

     Credible evidence supports the commission's findings, and

the findings are not inconsistent with the provisions of Code

§ 65.2-502.3   The pay records indicate that, between September


     3
       Indeed, contrary to employer's contention, no language in
Code § 65.2-502 requires that, in order to calculate an injured
employee's post-injury average weekly wage for purposes of
awarding temporary partial disability benefits commencing on a
                              - 8 -
17, 2001, and February 10, 2002, claimant earned less than the

agreed upon pre-injury average weekly wage of $983.58 for at

least seventeen of the twenty-one weeks in that period.     The pay

records further indicate that, after February 25, 2002, claimant

earned less than the agreed upon pre-injury average weekly wage

for both of the weeks reported.   To calculate claimant's

post-injury average weekly wage using the method proposed by

employer would have deprived claimant of compensation for the

periods at issue during which his earnings were substantially

less than his pre-injury average weekly wage.   Thus, the

commission, as fact finder, was entitled to reject employer's

argument that, for purposes of computing claimant's temporary

partial disability rate, claimant's post-injury average weekly

wage should be calculated by averaging claimant's earnings over

fifty-two weeks.

     Because they are supported by credible evidence in the

record, the commission's findings regarding claimant's

post-injury average weekly wage are conclusive and binding on

appeal.   Accordingly, we affirm the commission's decision.

                                                          Affirmed.




particular date, the commission must average the employee's
post-injury earnings over fifty-two weeks.
                              - 9 -
