                     COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Overton and Senior Judge Duff
Argued at Alexandria, Virginia


FUNCTION ENTERPRISES, INC. and
 TRANSPORTATION INSURANCE COMPANY
                                       MEMORANDUM OPINION * BY
v.        Record No. 2814-96-4         JUDGE NELSON T. OVERTON
                                           JULY 15, 1997
ROD FREDERICK BROWN


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            Jonathan S. Rochkind (Law Offices of Stuart
            L. Plotnick, on brief), for appellants.

            Craig A. Brown (Ashcraft & Gerel, on brief),
            for appellee.



     On appeal from the full commission's award of compensation

to Rod Brown (claimant), Function Enterprises, Inc. and

Transportation Insurance Company (collectively referred to as

employer) contend that the commission erred in its calculation of

claimant's average weekly wage.    For the reasons that follow, we

reverse the decision of the commission.
                              BACKGROUND

     On June 3, 1994, claimant suffered a compensable injury

during the course of his employment as a roofer for employer.

Claimant's injury resulted in total incapacity from June 3, 1994

through February 12, 1995, and partial incapacity from February

13 through May 24, 1995 and continuing.

     At the time of his injury, claimant had been working on a
      *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
"government employees job" for twelve days and had been receiving

a "wage above what he made as a regular rate."      Prior to this

assignment, claimant had done little government work.      Following

claimant's injury, employer was involved in this government

project for "several months."

     Upon his return to work on February 13, 1995, employer

offered claimant light duty pursuant to the doctor's

recommendation.   However, approximately six months later,

claimant was terminated from Function Enterprises.      The grounds

for his termination included several managers' "dissatisfaction

with his performance" of various assigned tasks, improper time

reporting, failure to work according to "company standards,"

laziness, and being late to work.
     A hearing regarding claimant's benefits was held on February

29, 1996.   The parties stipulated that employer paid claimant

"benefits at the weekly rate of $450.63 for [eight] months, based

upon an agreed wage of $675.94."       The deputy commissioner found

that "the evidence here fails to demonstrate that the claimant

was terminated for justified cause . . . . The fact that the

claimant does not perform his job well is not a basis for finding

that he was terminated for justified cause."      Additionally, the

deputy commissioner concluded that "the payment of compensation

for [eight] months by the employer's carrier resulted in a de

facto award.   Therefore, the employer is estopped from

challenging the average weekly wage figure upon which those prior




                                   2
payments were based."   Finally, the deputy commissioner found

that claimant suffered a wage loss from May 24, 1995 and awarded

him benefits.

     The full commission affirmed the deputy commissioner's

opinion, stating that "in order to bar future temporary partial

disability benefits, the employer must prove that the claimant

was involved in willful and deliberate misbehavior.   Inability to

perform well is not a basis for a finding of termination for

'justified cause.'"   Additionally, the commission determined

that, at the time of his injury, claimant had been making $675

per week in a government job covered by the Davis Bacon Act, and

that claimant had performed this particular job for only twelve

days prior to his accident.   "[I]n the fifty-two weeks prior to

the injury," claimant's typical weekly wage, not including the

government job, had been $331. 1

     After acknowledging that the average weekly wage had "been

established by a de facto award," the commission rejected the

employer's proposed Code § 65.2-101(1)(a) fifty-two week

calculation, and found as follows:
               In this case, the claimant was working
          as a roofer for a roofing contractor. He
          earned an average of $331.00 per week for
          fifty-two weeks before the accident, although
          at the time of the accident and twelve days
          previously he had been earning, by his
          testimony, $675.00 per week. The evidence
          establishes that he would have continued to
     1
      Claimant agreed that in the fifty-two weeks prior to his
injury he had earned the lower rate, but testified that he had
expected the government job to last a year.



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             earn the $675.00 per week for at least a
             year.


The commission then amended the average weekly wage of $675 to

the amount of $503, "which is the average of the two proposed

figures," and affirmed the deputy commissioner's opinion as so

modified.
                MODIFICATION OF THE AVERAGE WEEKLY WAGE

     Employer argues that the commission erred in its calculation

of claimant's average weekly wage by averaging the weekly wage

claimed by the employer and the weekly wage claimed by the

employee.    We agree that the commission's calculation was

incorrect.
                  It [is] the duty of the Commission to
             make the best possible estimate of future
             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
             Commission which, if based on credible
             evidence, will not be disturbed on appeal.


Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339

S.E.2d 570, 573 (1986).    "The commission is guided by statute in

determining average weekly wage."      Dominion Associates Group,

Inc., et al. v. Queen, 17 Va. App. 764, 766, 441 S.E.2d 45, 46

(1994).    Code § 65.2-101(1)(a) defines "average weekly wage" as

follows:
             The earnings of the insured 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
             . . . . When the employment prior to the
             injury extended over a period of less than



                                   4
          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 that 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 earned by a person
          of the same grade and character employed in
          the same class of employment in the same
          locality or community.

Code § 65.2-101(1)(b) further provides that "[w]hen 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."   (Emphasis added).

     In the instant case, the commission did not follow the

statutory directive of Code § 65.2-101(1)(a) in determining

claimant's average weekly wage.   Rather, it found that employer

voluntarily paid claimant benefits based on the weekly wage of

$675.94 (the amount of the government job), and initially adopted

this amount as the average weekly wage.    The record supports this

finding, as the parties stipulated that "benefits were paid at

the weekly rate of $450.63 for 8 months, based upon an agreed

wage of $675.94."

     However, the commission deviated from the $675.94 figure.



                                  5
Although the commission failed to state the basis for this

deviation, it appears to have averaged the $675.94 figure with

the $331 figure proposed by employer to arrive at an average

weekly wage fair to both parties in the amount of $503.   This

calculation is not supported by credible evidence.

     Based on the record before us, we find the deputy

commissioner's computation "most nearly approximate[s]" the

amount claimant would have earned had he not been injured.     See

Code § 65.2-101(1)(b).   As noted above, the full commission found

that claimant "would have continued to earn the $675.00 [sic] per

week for at least a year."   Thus, we reverse the commission's

finding as to the wage computation and remand this appeal with

direction that the deputy commissioner's findings and

determination that $675.94 should be employed as the claimant's

weekly wage be reinstated.
                                         Reversed and
                                         remanded.




                                 6
Fitzpatrick, J., dissenting.

     I respectfully dissent.     The commission found that "[t]he

evidence establishes that [claimant] would have continued to earn

the $675.00 per week for at least a year."    However, claimant's

testimony indicates that he expected to earn this amount "[f]or

the rest of the year at least."     (Emphasis added).   Sandra Nobles

testified that although the project lasted "[s]everal months,"

she did not think that it went on "as long as the remainder of

the year."   (Emphasis added).   Claimant was injured in June 1994.
     Code § 65.2-101(1)(b) provides that for exceptional reasons,

the commission may compute the average weekly wage to most nearly

approximate "the amount which the injured employee would be

earning were it not for the injury."

     While in lieu of the fifty-two week calculation procedure

set out in Code § 65.2-101(1)(a), the commission deviated from

the statutory formula to determine claimant's average weekly

wage, it failed to state the basis for its deviation.     However,

it clearly may be inferred that the commission considered the

$675.94 figure to be unfair to the employer and that it found the

ephemeral nature of claimant's employment at the government job

to be "exceptional."   Evidently, the commission applied Code

§ 65.2-101(1)(b) and averaged the $675.94 figure with the $331

figure proposed by employer to arrive at an average weekly wage

fair to both parties in the amount of $503.

     Under the circumstances of this case, the commission fairly



                                   7
approximated the amount claimant would have earned had he not

been injured.   The weekly wage that the commission calculated is

the "best possible estimate of future impairments of earnings

from the evidence adduced at the hearing."   Pilot Freight

Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339 S.E.2d 570,

573 (1986).   Credible evidence supports the commission's

determination, and I would affirm.




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