                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Willis and
          Senior Judge Overton
Argued at Alexandria, Virginia


ELLEN KAYE, INC. AND
 MONTGOMERY MUTUAL INSURANCE COMPANY
                                                 OPINION BY
v.   Record No. 1427-00-4                  JUDGE NELSON T. OVERTON
                                              FEBRUARY 27, 2001
THOMAS CLARKE WIGGLESWORTH


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             James Richard Ryan, Jr. (Susan A. Evans;
             Siciliano, Ellis, Dyer & Boccarosse, on
             brief), for appellants.

             John B. Delaney (Delaney, McCarthy, Colton &
             Botzin, P.C., on brief), for appellee.


     Ellen Kaye, Inc. and its insurer (hereinafter referred to

as "employer") appeal a decision of the Workers' Compensation

Commission awarding compensation to Thomas Clarke Wigglesworth

(claimant).     Employer contends the commission erred in

calculating claimant's average weekly wage as $793.45.      Finding

no error, we affirm.

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.     See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

     So viewed, the evidence proved that claimant began

performing landscaping work for employer in the spring of 1987.

Beginning in November 1987, claimant worked for employer
installing Christmas decorations for various businesses.      The

Christmas decoration work normally began in November and ended

in mid-January.   From mid-January until October, claimant

performed landscaping work for employer.

     On January 24, 1995, claimant was laid off from his

employment because employer eliminated its landscaping division

and could not provide claimant with year-round work.

     Claimant was not immediately able to find other work and,

therefore, received unemployment compensation for two months.

In April 1995, claimant found a job with another company

performing landscaping work.    At the end of October 1995,

claimant received a letter from Howell Jewell, employer's

executive vice-president and CEO, requesting that claimant

return to work for employer installing seasonal Christmas

decorations.   As a result, claimant quit his job with his new

employer.

     On November 3, 1995, claimant began performing the

Christmas decoration work for employer.    Claimant was injured on

December 15, 1995, when he fell off a roof as he was repairing a

garland at a shopping center.   For the seven-week period from

November 3, 1995 through December 15, 1995, claimant earned

$5,554.17 in wages from employer.   On December 22, 1995,

claimant received a payment of $392 from employer entitled,

"bonus," with a net pay to him of $295.37, after deductions for

taxes.

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     In determining that claimant's average weekly wage was

$793.45, the commission found as follows:

          [C]laimant left the employer's employment at
          the end of January 1995 for another job
          because the employer left the landscaping
          business. He got a job with another
          employer, which resulted in a significant
          gap in employment with the defendant
          employer. The claimant quit this new job
          and returned to the defendant employer's
          decorating business in November 1995. When
          he returned to the employer, he began the
          seasonal decorating job. This job did not
          involve decorating during certain months and
          landscaping during others. The claimant
          worked for the employer only as a decorator
          when he was injured. This represented a
          separate and distinct employment with the
          defendant employer. Therefore, . . . the
          average weekly wage must be based on the
          claimant's earnings for the seven-week
          period prior to his injury because he
          planned to continue working at some other
          job after the seasonable [sic] job ended as
          opposed to not working after the job ended.

               Additionally, the employer paid the
          claimant an extra $392 on December 22, 1995.
          We are not persuaded that the $392 was a
          gift. While the claimant admitted that the
          employer was a friend, taxes were withheld
          from this payment. Clearly, the payment was
          paid pursuant to the employer/employee
          relationship. The Deputy Commissioner
          properly considered the amount as a bonus
          and incorporated it into the average weekly
          wage computation.

     Employer argues that the commission "should have included

all of the claimant's wages with [employer] in the fifty-two

weeks prior to the date of accident."   Employer asserts that

this calculation would have required the commission to consider

claimant's earnings with employer between December 31, 1994 and

                              - 3 -
January 28, 1995, combined with his earnings after October 1995

through the date of his injury on December 15, 1995.   Employer

also contends that the $392 paid to claimant on December 22,

1995, although labeled a "bonus," was actually a "gift" and

should not have been considered in determining claimant's

average weekly wage.   We disagree.

               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 Assocs. Group, Inc. v. Queen, 17 Va.

App. 764, 766, 441 S.E.2d 45, 46 (1994).    Code § 65.2-101

defines "average weekly wage" as follows:

          1.a. The earnings of the injured 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
          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. . . .

          b. When for exceptional reasons the
          foregoing would be unfair either to the

                               - 4 -
          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.)   "The reason for calculating the average

weekly wage is to approximate the economic loss suffered by an

employee . . . when there is a loss of earning capacity because

of work-related injury . . . ."   Bosworth v. 7-Up Distrib. Co.,

4 Va. App. 161, 163, 355 S.E.2d 339, 340 (1987).

     Here, the employment in which claimant was working at the

time of his injury was seasonal Christmas decoration work, which

he performed for seven weeks before his injury.    At that time,

he had not worked for employer as a landscaper for over nine

months, and employer was no longer in the landscaping business.

Claimant quit his job with the other landscaping company and

fully intended to pursue other employment once the seasonal

Christmas decorating job with employer ended in January 1996.

Under these circumstances, where the employment prior to the

injury extended over a period of less than fifty-two weeks, the

commission properly followed the method of dividing the earnings

during that period by the number of weeks claimant worked.     See

Code § 65.2-101(1)(a).

     It was undisputed that claimant was employed as a seasonal

Christmas decorator from November 3, 1995 through the date of

his injury.   Uncontradicted and credible evidence also proved

that during that time claimant earned a total of $5,554.17,

                               - 5 -
including his $392 bonus.   Therefore, the commission did not err

in using the total of those wages divided by the seven weeks

claimant worked for employer to determine that his "average

weekly wage" was $793.45.

     The commission properly included the $392 bonus in

calculating claimant's average weekly wage.   The bonus was paid

to claimant after employer made deductions for taxes.   The

commission found, based on credible evidence, that the bonus

constituted wages based upon the employer/employee relationship

and was not a gift, notwithstanding Jewell's testimony to the

contrary.

     Because credible evidence supports the commission's

findings, we affirm its decision.

                                                   Affirmed.




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