                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Senior Judge Overton


RICH PRODUCTS CORPORATION AND
 CONTINENTAL CASUALTY COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 0530-03-4                         PER CURIAM
                                                 JUNE 3, 2003
MICHAEL R. STEERE


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (C. Ervin Reid; Wright, Robinson, Osthimer &
             Tatum, on briefs), for appellants.

             (William S. Sands, Jr.; Duncan and Hopkins,
             P.C., on brief), for appellee.


     Rich Products Corporation and its insurer contend the

Workers' Compensation Commission erred in finding that Michael

R. Steere was entitled to an award of temporary partial

disability benefits beginning February 13, 2000, and continuing,

based upon an average weekly wage of $700.37.       Rich Products

argues that the commission erred by not averaging all of the

wages Steere was able to earn during the first quarter of the

year 2000.     Upon reviewing the record and briefs of the parties,

we conclude that this appeal is without merit.      Accordingly, we

summarily affirm the commission's decision.     Rule 5A:27.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     Code § 65.2-502 provides that an employer shall pay as

compensation during an employee's partial incapacity, "a weekly

compensation equal to 66 2/3 percent of the difference between

[an employee's] average weekly wages before the injury and the

average weekly wages which [the employee] is able to earn

thereafter."

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

339 S.E.2d 570 (1986), we recognized as follows:

          The 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
          considered and due weight given them by the
          Commission.

               It was the duty of the Commission 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 Commission, which if based on
          credible evidence, will not be disturbed on
          appeal.

Id. at 441, 339 S.E.2d at 573 (citation omitted).

     The commission found that the following calculation

constituted the best and fairest indication of Steere's partial

wage loss commencing February 13, 2000:

               [Steere] alleges that as of February
          13, 2000, his average weekly wage decreased.
          The records support his allegation. For the
          pay period ending February 12, 2000, [his]
          year-to-date earnings were $6,978.73. As of
          April 22, 2000, [his] year-to-date earnings
          were $13,982.43. Thus, during the ten-week
                             - 2 -
           period between February 13 and April 22,
           2000, [Steere] earned $7,003.70.

                . . . The above calculations are based
           on ten weeks of earnings, which we find is
           more representative of [Steere's] current
           earning capacity and is only two weeks less
           than a quarterly assessment of his earnings.
           Thus, we find that $700.37 is a fair and
           accurate representation of [Steere's]
           current average weekly wage. His
           post-injury average weekly wage is $160.63
           less than his pre-injury average weekly wage
           of $861.00; thus, he is entitled to
           temporary partial disability benefits in the
           weekly amount of $107.09.

(Footnotes omitted.)   The commission rejected Rich Products's

argument that the commission was required to review Steere's

wages from the beginning of the year 2000, instead of the date

the alleged decrease in wages occurred.    The commission assessed

Steere's current average weekly wage as of February 13, 2000,

the date upon which his wages decreased.

     Contrary to Rich Products's contention, no language in Code

§ 65.2-502 requires that the commission average all of an

injured employee's post-injury wages in order to determine the

average weekly wage for the purpose of awarding temporary

partial disability benefits commencing on a specific date.

     The wage records established that from February 13, 2000,

the date upon which Steere's wages decreased, through April 22,

2000, Steere earned an average weekly wage lower than his

pre-injury average weekly wage of $861, during nine out of ten

weeks.   The commission, as fact finder, was entitled to reject

                              - 3 -
Rich Products's contention that the average weekly wage should

be calculated from the beginning of the year 2000.    Credible

evidence proved that between February 13, 2000 and April 22,

2000, Steere earned more than his pre-injury average weekly wage

during only one out of ten weeks.    To compute the average weekly

wage as proposed by Rich Products would have deprived Steere of

compensation when his earnings were well below his pre-injury

average weekly wage during the majority of that period.

Credible evidence supports the commission's findings, and the

commission's calculation best indicates Steere's partial wage

loss commencing February 13, 2000.

     Accordingly, we affirm the commission's award.

                                                          Affirmed.




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