                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Huff and Chafin
UNPUBLISHED


              Argued at Alexandria, Virginia


              MARIA D. SEMINARIO
                                                                            MEMORANDUM OPINION BY
              v.     Record No. 0362-14-4                                   JUDGE ROSSIE D. ALSTON, JR.
                                                                                DECEMBER 9, 2014
              FAIRFAX COUNTY PUBLIC SCHOOLS


                           FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Benjamin J. Trichilo (McCandlish Lillard, on briefs), for appellant.

                               Michael N. Salveson (G. Bethany Ingle; Littler Mendelson, P.C.,
                               on brief), for appellee.


                     Maria D. Seminario (“claimant”) appeals a decision of the Workers’ Compensation

              Commission (“the commission”) calculating her average weekly wage for periods of temporary

              total disability by dividing her salary by 52 weeks instead of by the number of weeks she

              actually worked as a teacher, excluding summer weeks. On appeal, claimant contends that the

              commission erred i) “by finding that the Claimant’s average weekly wage should be calculated

              by dividing by 52 weeks, instead of dividing by 43.143 weeks. The ruling is contrary to the

              plain language of the average weekly wage statute (Code § 65.2-101); is without precedent; and

              materially understates the Claimant’s average weekly earnings”; and ii) “erred because the

              standard applied by the Commission is unsupported by statute and creates an invidious

              discrimination against school teachers and school personnel, by utilizing an average wage

              calculation that materially understates the compensation rate of this class of employees, when




                     
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
compared to the standard applied for landscapers and seasonal workers.” Finding no error, we

affirm.

                                           I. Background1

          On September 7, 2011, claimant, a 65-year-old teacher’s assistant for Fairfax County

Public Schools (“employer”), fractured her left wrist and injured her left shoulder, head, and

knees when a student tripped her. Claimant earned an annual salary of $31,201.87 for teaching

during the school year, or 43.143 weeks per calendar year. On March 28, 2012, claimant filed

her claim for benefits seeking awards of lifetime medical benefits and temporary total disability

benefits from September 8, 2011, through March 15, 2012. On April 26, 2012 employer and

claimant entered an award agreement providing for claimant’s compensation at the rate of

$480.08 per week for her temporary total disability from September 8, 2011, through March 16,

2012. This weekly compensation rate was calculated by dividing the claimant’s total earnings

from employer for the year by 43 weeks, the number of weeks claimant worked for employer

each year.

          Employer filed a request for hearing on June 13, 2012, stating that the claimant’s

disability payments should have been calculated by dividing her pre-injury income by 52 weeks

to arrive at an average weekly wage of $600.15 for a compensation rate of $400.10 per week.

Employer sought a credit for any overpayment based on the calculated weekly wage of $480.08

provided in the agreed award.

          At the hearing before the deputy commissioner on September 12, 2012, claimant testified

that at the time of the work injury, she had been working full time during the school year and that

her job required her to perform tasks such as lifting children, lifting boxes of books that weighed

          1
         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.
                                                 -2-
over 5 pounds, and reaching above her head. Claimant stated that following her work injury, she

was no longer able to perform those tasks because they caused her pain. Although claimant had

the opportunity to seek summertime employment, she stated that after sustaining her injury she

would not do so because she could not use her left hand. Claimant last worked during the

summer approximately ten or eleven years prior to the hearing. Since then, claimant personally

chose not to work summers for Fairfax County even though summer work was and is available to

her if she chooses to work summers. Claimant did testify that she may seek summer work in the

future, but that she was not looking for summer work at the time of the hearing.

       The deputy commissioner issued his opinion on September 18, 2012, in which he

determined that claimant’s salary should be divided by 52 weeks because claimant chose not to

seek employment during the summer months. Claimant requested review of the deputy

commissioner’s decision on October 11, 2012.2

       By opinion dated January 28, 2014, the commission affirmed the deputy commissioner’s

September 18, 2012 opinion on the basis that claimant was not a seasonal employee and because

she chose not to seek summer employment. The commission agreed that claimant’s pre-injury

average weekly wage should be calculated by dividing her annual earnings into 52 weeks. In

reaching its decision, the commission compared claimant’s case to that of Scott v. Virginia

Beach (City of) School Board, 78 O.W.C. 199, 1999 Va. Wrk. Comp. LEXIS 510 (1999), a case

in which a school bus driver did not work during the summer months and her average weekly

wage was therefore calculated by dividing her earnings by 52 weeks. In Scott, the commission

       2
         Apparently “for reasons unknown” the matter was not docketed for review for over a
year. In the interim, on September 19, 2012, November 8, 2012, February 27, 2013, and March
7, 2013, claimant filed additional claims for benefits in which she sought medical authorizations
and ongoing temporary total disability benefits beginning March 5, 2013. On April 25, 2013, the
deputy commissioner held a hearing on claimant’s additional claims for benefits and on May 13,
2013, the deputy commissioner awarded claimant ongoing temporary total wage loss benefits of
$400.03 per week beginning March 5, 2013, based on a pre-injury average weekly wage of
$600.04.
                                                -3-
based its decision on the claimant’s choice not to work during the summer break. Since the

claimant in the present case also chose not to work during the summer months, the commission

calculated her average weekly wage as it had in Scott—by dividing her earnings by 52 weeks.

This appeal followed.

                                             II. Analysis

        The fundamental purpose of the Workers’ Compensation Act (the “Act”) is to

compensate employees for injuries “arising out of and in the course of employment . . . without

regard to fault.” Lawrence J. Pascal, Virginia Workers’ Compensation: Law & Practice § 1.03

(4th ed. 2011). “‘It is as essential to industry as it is to labor.’” Id. (quoting Feitig v. Chalkley,

185 Va. 96, 38 S.E.2d 73 (1946)).

                “[I]t [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
                that [the claimant] was able to earn. This is a question of fact to be
                determined by the Commission which, if based on credible
                evidence, will not be disturbed on appeal.”

Chesapeake Bay Seafood House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864, 866 (1992)

(quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339 S.E.2d 570, 573

(1986)). “Thus, if credible evidence supports the commission’s findings regarding a claimant’s

average weekly wage, we must uphold those findings.” Id. (citing James v. Capitol Steel Constr.

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989)). “‘The commission is guided by

statute in determining average weekly wage.’” Thorpe v. Clary, 57 Va. App. 617, 624, 704

S.E.2d 611, 614 (2011) (quoting Ellen Kaye, Inc. v. Wigglesworth, 34 Va. App. 390, 394, 542

S.E.2d 30, 32 (2001)). “Unless the commission misconstrues the statute, the determination of an

employee’s ‘average weekly wage’ constitutes a ‘question of fact’ deserving of deferential

appellate review.” Id. (citing Pilot Freight Carriers, Inc., 1 Va. App. at 441, 339 S.E.2d at 573).

However, to the extent the calculation of the average weekly wage is based on statutory
                                                 -4-
interpretation, it presents a question of law and is subject to de novo review by this Court. See

Turf Care, Inc. v. Henson, 51 Va. App. 318, 334, 657 S.E.2d 787, 794 (2008).

       The Code assists the commission in determining an injured claimant’s average weekly

wage. Code § 65.2-500(A) provides, in part:

               Except as provided in subsections E, F and G, 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. In any event, income benefits
               shall not exceed the average weekly wage of the injured employee.

Code § 65.2-101 provides, in relevant part:

               “Average weekly wage” means:

               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
               52 weeks immediately preceding the date of the injury, divided by
               52; but if the injured employee lost more than seven consecutive
               calendar days during such period, although not in the same week,
               then the earnings for the remainder of the 52 weeks shall be
               divided by the number of weeks remaining after the time so lost
               has been deducted. When the employment prior to the injury
               extended over a period of less than 52 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 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.

“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 or death.” Bosworth v. 7-Up Distrib. Co., 4 Va. App. 161, 163, 355 S.E.2d 339, 340


                                               -5-
(1987) (citations omitted). To achieve this purpose, the Act gives the commission discretion in

the calculation method used to determine the average weekly wage. Goodyear Tire & Rubber

Co. v. Mendenall, Record No. 2905-08-3, 2009 Va. App. LEXIS 401, at *4 (Va. Ct. App. Sept.

8, 2009).3

       The Court highlighted the purpose of calculating average weekly wage to approximate

economic loss in the unpublished opinion, Goodyear Tire, where claimant suffered a

compensable injury by accident to his left shoulder. Id. at *1. In the 52-week period preceding

claimant’s injury, claimant participated in a twelve-week union strike against employer in which

he received no pay and took three weeks of unpaid vacation. Id. The commission concluded

that the strike and unpaid vacation weeks should be excluded from the calculation of claimant’s

average weekly wage. Id. The Court affirmed, stating that “in decreasing the number of weeks

used for the calculation, the commission is not compensating the employee for ‘lost’ time, but

rather best approximating what the employee would be earning were it not for his injury by

excluding time not worked that might be considered an aberration.” Id. at *4. The Court

considered the twelve weeks claimant was on strike as “lost” time under Code § 65.2-101(A)

because, absent the “aberration” of the union strike, claimant would have been working during

that time. Id.

       The Court’s holding in Goodyear emphasized that the calculation of a claimant’s average

weekly wage is not meant to compensate a claimant for loss of earning capacity, but rather to

provide compensation for actual economic loss suffered as the result of a workplace injury. The

salient issue in the present case is how this purpose is served and through which method of

calculation under Code § 65.2-101(A) as applied to school system employees who work during


       3
          “Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350, 735 S.E.2d 255, 257
(2012) (citing Rule 5A:1(f)).
                                              -6-
the school year and choose not to accept other work opportunities during the summer weeks

when school is not in regular session.

        Though not binding on this Court, the commission addressed calculation of a school bus

driver’s average weekly wage, where she worked during the school year but not over the

summer, in Scott, 1999 Va. Wrk. Comp. LEXIS 510. The commission determined that

claimant’s average weekly wage should be calculated by dividing her pay into 52 weeks. In so

holding, the commission noted that

               During the summer vacation period, the claimant elected not to
               work. Therefore, her situation is not like that of a seasonal worker
               who obtains other employment during the off-season. . . . [H]ere
               the claimant’s job constituted full-time employment for her. If the
               compensation rate in this case were to be based on 42.2 weeks, her
               compensation benefits for 12 months would exceed her income
               from working as a school bus driver as received over 12 months.
               Such a result would not approximate the claimant’s loss of income
               from her job and would unfairly award her higher earnings than a
               comparable co-worker who suffered a similar injury.

Id. at *3.

        We find the commission’s rationale in Scott persuasive to this fact-driven case and find

that the commission properly calculated claimant’s average weekly wage by dividing her salary

by 52 weeks. We are mindful that school teachers perform a “vitally important public function,”

and we do not underestimate the contributions they make throughout the school year to the

growth and development of the youth in this Commonwealth and across the country, regardless

of whether or not they seek work over the summer. See Lentz v. Morris, 236 Va. 78, 82, 372

S.E.2d 608, 610 (1988). However, on the facts of this case, claimant, much like the bus driver in

Scott, chose to work during the school year and not during the summer months. She had not

sought work over the summer, though it was available to her, for over a decade. Additionally,

claimant admitted that she would not be looking for summer work in the foreseeable future.



                                               -7-
       Claimant’s school year employment, much like the claimant in Scott, “constituted

full-time employment for her.” 1999 Va. Wrk. Comp. LEXIS 510, at *3. Further, the summer

months were not an “aberration” for claimant, as the weeks spent on union strike were for the

claimant in Goodyear and thus, her summer months were not “lost” time as contemplated by

Code § 65.2-500(A). Finally, claimant is not under-compensated by dividing her salary by 52

weeks; she will receive approximately 66 2/3% of her pre-injury average weekly wage, to which

she is entitled.4 On the facts of this case, claimant’s actual loss resulting from her injury is most

accurately calculated by dividing her annual salary by 52 weeks and, therefore, we find that the

commission did not err in so finding.

                                                                                           Affirmed.




       4
          Claimant’s average weekly pay, however, calculated by dividing her salary by 43
weeks, would result in her earning approximately eighty percent of her annual salary over the
course of a year of disability payments. While still within the upper compensation limit of Code
§ 65.2-500(A) (not less than twenty-five percent and not more than one hundred percent of the
average weekly wage of the Commonwealth), employing claimant’s preferred calculation would,
from a workers’ compensation perspective, unnecessarily lead to her over-compensation, when
calculating her average weekly pay according to the weeks she actually worked during the year
(as the commission did) compensates her precisely as provided by Code § 65.2-500(A).
                                              -8-
