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Tactical Group Inc. v. Lucas12/29/1995
356 S.E.2d 447, 448 (1987). In ruling that the Act applied to Tactical, the commission found as follows:
While McDole testified that he is merely a "job shopper" who finds work for Pence, the weight of the evidence establishes that McDole, in his business capacity with Tactical, is in the business of installing school equipment. He has hired three or more employees in order to carry out that business. The evidence does not support a finding that Tactical was subcontracting this work to independent contractors. Each worker was paid on an hourly basis, and Tactical had the ability to control monetary disbursement, work conditions, and the end result. We find that the co-workers were in the same status as [Lucas], i.e., an employee of Tactical.
The testimony of claimant, Painter, Woodward, and McDole provides credible evidence to support these findings. Accordingly, the commission did not err in concluding that the Act applied to Tactical.
III. Average Weekly Wage
The commission calculated Lucas' $613.03 average weekly wage by dividing the net wages he actually earned on the Spotsylvania job ($3,503.00) by the forty days he worked for Tactical. Tactical contends that the commission erred by not dividing the $3503.00 by fifty-two weeks. We disagree.
"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 . . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339 S.E.2d 570, 573 (1986). In the absence of a fifty-two week pay history, the average weekly wage may be calculated by "dividing the earnings during that period [the employee worked] by the number of weeks . . . which the employee earned wages . . ., provided that results fair and just to both parties will be thereby obtained." Code § 65.2-101 ("Average weekly wage"). The calculation of average weekly wage "is a question of fact to be determined by the Commission which, if based on credible evidence, will not be disturbed on appeal." Id. "Thus, if credible evidence supports the commission's findings regarding the claimant's average weekly wage, we must uphold those findings." Chesapeake Bay Seafood House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864, 866 (1992).
The record proved that Lucas worked forty days on the project. Thus, the commission reasoned that "dividing the wages earned with this employer by 52 weeks would not produce an equitable result." Nothing in the record suggests that this method was not fair and just to both parties. Credible evidence supports the commission's method of calculating Lucas' average weekly wage, and it is not contrary to the provisions of Code § 65.2-500. Accordingly, the commission did not err in awarding Lucas benefits based upon an average weekly wage of $613.03.
IV. Injury by Accident
Tactical argues that Lucas was not credible, and, therefore, the commission erred in finding that he proved that he sustained an injury by accident arising out of and in the course of his employment on September 20, 1993. However, "in determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
On appeal, we view the evidence in the light most favorable to the prevailing party below. R.
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