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DINWIDDIE COUNTY SCHOOL BOARD v. COLE


DINWIDDIE COUNTY SCHOOL BOARD

v.

COLE


COURT OF APPEALS OF VIRGINIA
NOVEMBER 3, 1998
Record No. 0081-98-2

 

DINWIDDIE COUNTY SCHOOL BOARD

v.

DELORICE M. COLE

 

OPINION BY JUDGE RUDOLPH BUMGARDNER, III
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia

Daniel E. Lynch (S. Vernon Priddy, III; Sands, Anderson, Marks
& Miller, on brief), for appellant.
Eileen McNeil Newkirk (Taylor, Hazen, Kauffman & Pinchbeck,
PLC, on brief), for appellee.


Dinwiddie County School Board appeals a decision of the
Workers’ Compensation Commission awarding lost wages to Delorice
M. Cole. The commission calculated average weekly wages by
combining the earnings Cole received from each of the two jobs
she held with the School Board. For the following reasons, we
affirm the commission’s decision.

Neither party disputes the facts. Cole held one job as a bus
driver and a second job as a teacher’s aide. She had separate
contracts for each job, and different departments of the School
Board paid her from separate budgets. She injured her shoulder
while working as a teacher’s aide, but the injury prevented her
from driving her school bus. Cole filed a workers’ compensation
claim for medical treatment and lost wages. The deputy
commissioner awarded no lost wages but did award reasonable and
necessary medical treatment. The deputy commissioner ruled that
the doctrine of substantially similar employment applied.
However, he found that Cole’s two positions were dissimilar and
did not combine the wages from the two jobs. Cole appealed to the
commission, and it reversed the denial of lost wages. The
commission agreed that the jobs were dissimilar but calculated
Cole’s average weekly wage by combining income from both
positions. The commission awarded her temporary partial
disability benefits for lost earnings.

On appeal, the School Board argues that the commission erred
by combining earnings from the two jobs. The School Board
contends the commission could combine the weekly wages only if
the jobs were similar because the substantial similarity doctrine
controls. Cole counters that the commission properly combined the
wages because the doctrine is inapplicable when the claimant
works for a single employer.

The commission sought to determine the purpose for combining
wages under the substantial similarity doctrine when the jobs are
similar but not combining them when the jobs are dissimilar. See
Creedle Sales Co., Inc. v. Edmonds, 24 Va. App. 24, 27,
480 S.E.2d 123, 124 (1997). The commission noted that workers’
compensation is designed to place the economic burden of
work?related injuries on industry and, more specifically, on the
employer. See 5 Larson, Workers’ Compensation Laws
Sect. 60.31(f) (1997). The rationale for the approach is to
prevent the costs of injury being out of proportion to the
industry’s payroll or risks. If an employee works for only one
employer, the burden is not out of proportion to the employer’s
payroll or the industry’s risks. The single employer is not being
forced to assume responsibility for the wages paid by some other
employer or the risks of some other industry. Combining a
claimant’s wages paid by a single employer for two jobs performed
is fair to the single employer because that employer had already
assumed the liability risk. The commission concluded,
"[t]hus, the question of whether the employment is similar
or dissimilar should not be relevant where the employer is the
same, and only the jobs are different." Cf. Marianna
School Dist. v. Vanderburg
, 700 S.W.2d 381 (1985) (injured
claimant who worked as bus driver and as food service worker for
two employers did not have wages combined because doing so would
impose liability not necessarily assumed by the employers).

We construe the Workers’ Compensation Act liberally for the
benefit of employees and give great weight to the commission’s
construction of the Act. See City of Waynesboro v.
Harter
, 1 Va. App. 265, 269, 337 S.E.2d 901, 903 (1985). The
substantially similar doctrine prevents combining salaries from
two separate jobs if the jobs are not similar. The rationale for
applying the doctrine is not present when the two jobs are
performed for the same employer. The decision of the commission
is in keeping with the purpose of the Act. We give it deference
because we cannot say it is wrong as a matter of law.
Finding no reason to disturb the commission’s decision awarding
Cole lost wages based on the combined average weekly wage of both
positions, we affirm the commission’s findings.

Affirmed.

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